WFXGI (Guardianship and Administration)
[2012] TASGAB 14
•15 June 2012
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
WFXGI – An application for the appointment of a guardian and administrator by DQ
Neutral citation: WFXGI (Guardianship and Administration) [2012] TASGAB 14
REASONS FOR DECISION
Anita Smith (President)
Susan Hill (Member)
Philippa Whyte (Member)
Date of hearing: 15 June 2012
Guardianship and administration – Elements for appointing a guardian and administrator – Concern about changes in elderly man’s spending patterns – new friendship with woman – no evidence of abuse, patterns consistent with new relationship for persons of any age – conflict with family about relationship created need for administrator
Guardianship and Administration Act 1995 s.20, 51, 54
On 10 May 2012, the Board received an application for the appointment of a guardian and an administrator for WFXGI (WFXGI) from his son-in-law, DQ. WFXGI is 84 years of age and lives in semi-supported care at XXXX. The reason for the application was that DQ and his wife were concerned that WFXGI has formed a friendship with a woman who has encouraged him to use his funds in what appeared to be an uncharacteristic manner.
In assessing an application for appointment of a guardian under the Guardianship and Administration Act 1995 (the Act), the Board must assess whether WFXGI is a person with a disability and whether, by reason of that disability, he is incapable of making reasonable judgments about his person and circumstances. If so satisfied, the Board must then consider whether he is in need of a guardian and assess the suitability of any nominated guardians against statutory criteria.
In assessing an application for appointment of an administrator under the Act, the Board must assess whether WFXGI is a person with a disability and whether, by reason of that disability, he is incapable of making reasonable judgments in respect of his estate. If so satisfied, the Board must then consider whether he is in need of an administrator and assess the suitability of any nominated administrators against statutory criteria.
The application was heard in Launceston on 15 June 2012. In attendance were:
WFXGI – proposed represented person
OI – son (to avoid confusion with WFXGI Snr. hereafter referred to as OI)
OI – friend
Mr. Fred Lester – WFXGI’s solicitor
DQ – applicant and son in law (by telephone)
TQ – daughter (by telephone)
Is WFXGI a person with a disability? – Sections 20(1)(a) and 51(1)(a)
The application was accompanied by a report from Dr. Paul Hanson who confirmed that WFXGI has dementia. WFXGI’s representative noted that he did not accept that diagnosis but made no further submissions and did not seek to offer alternative medical evidence. Accordingly, the Board was satisfied that WFXGI is a person with a disability.
Is WFXGI incapable, by reason of his disability of making reasonable judgments in relation to his person and circumstances and his estate? – Sections 20(1)(b) and 51(1)(b)
Dr. Hanson’s report recorded that WFXGI experiences deficits in his memory and his planning and reasoning skills. He indicated that WFXGI is impulsive and susceptible to influence. In respect of various skills related to financial management, Dr. Hanson indicated that WFXGI’s skills were poor, very poor or limited. He noted the same range of deficits in his personal decision-making skills. Again, WFXGI’s representative noted that he did not accept that opinion but made no further submissions and did not seek to offer alternative medical evidence. The Board noted that Dr. Hanson and WFXGI’s professional relationship has deteriorated since Dr. Hanson assessed WFXGI as being incapable of driving. However, the Board was satisfied on the basis of Dr. Hanson’s report that WFXGI is incapable by reason of his dementia of making reasonable financial and personal decisions.
Is WFXGI in need of an administrator? – Sections 51(1)(c)
The applicant’s evidence was that he has been assisting WFXGI with his finances since 2007. When the application was made WFXGI’s estate consisted of some personal effects, a vehicle, some small bank accounts and a term deposit of $150,000.00. He receives an Aged Pension of $823.41 per fortnight. He pays (by direct debit) $640.42 per fortnight to XXXX for Board which leaves $182.99 per fortnight for personal spending from his pension.
According to DQ, WFXGI lived within his pension and accepted DQ’s support with financial management until the last three months when WFXGI has begun lunching out with OI. Since his friendship with OI, he has been withdrawing up to $1000.00 per fortnight from his accounts. According to the applicant, WFXGI has been using these funds to take OI to lunch every day. However, the applicant also stated that WFXGI either would not or could not tell him how the funds have been spent.
The applicant’s concern was that WFXGI was spending his life’s savings and would not have money left if he required a change in the level of care, or if he needed an operation. The applicant was concerned about WFXGI’s secrecy and said that he had made the application to “take control of [WFXGI’s] life”. However, the applicant conceded that “no harm at all” had come to WFXGI as a result of the spending.
It concerned the applicant and TQ, who live in New South Wales, that they did not know the nature of the relationship between WFXGI and OI. Because of WFXGI’s refusal to talk about it with his daughter or son in law and because WFXGI had withdrawn the term deposit of $150,000.00 (and reinvested $145,000 in a new term deposit) and had cancelled DQ’s authority at the bank, they have developed concerns that he is being taken advantage of.
DQ rejected the idea that WFXGI was cross with him for attempting to restrict his spending. TQ accused OI of “taking [WFXGI] for a ride”, of being an officious ex-school mistress who was using influence over WFXGI to her won advantage. OI responded to these allegations as being “ridiculous”.
Both WFXGI and OI gladly agreed that they lunch together daily. Both expressed a level of joy with regards to their friendship. When asked if he felt well, WFXGI happily exclaimed that he was “dangerous!”.
OI, who lives in Northern Tasmania, stated he did not share his sister’s level of concern about their friendship or the financial situation. OI told the Board’s Investigator that he would be concerned that, without DC’s friendship, WFXGI’s health might decline. He noted how happy his father is in OI’s company. He said “she likes to be taken out and Dad will always pay.” From this the Board inferred that WFXGI retains social mores of his generation that a male would pay for expenses on a ‘date’.
The report by the Board’s Investigator noted that the Manager at XXXX said she has been aware of the friendship between WFXGI and OI since starting at XXXX two and a half years ago. She stated that they appeared “quite close”. Initially, OI lived at the XXXX but then moved out. She noted that WFXGI’s fees include all of his meals, but for three months he has not been eating lunch at the XXXX. She had heard arguments between WFXGI and OI from time to time, but only in the manner of a normal couple, and nothing that had ever caused her concern.
The Board noted that WFXGI has been dependent upon DQ for financial assistance for seven years. Taking into account the contents of Dr. Hanson’s report, it is reasonable to assume that absent that support, he would be incapable of managing his estate. The Board observes that this arrangement has worked well on an informal basis until DQ questioned WFXGI’s access to his funds and attempted to control WFXGI’s spending. Because the informal arrangement has broken down there now arises a need for an administrator.
Does DQ meet the eligibility requirements for appointment as administrator? – Section 54
Through counsel, WFXGI indicated that he did not wish for the applicant to be appointed as his administrator and would prefer the appointment of the Public Trustee. The Board took this indication into account in respect of section 54(2)(a) of the Act and therefore concluded that the applicant would not meet the test of being suitable for appointment pursuant to section 54(1)(d)(iii). The legislation clearly enables the Board to take into account a person’s wishes, regardless of the fact that medical opinion might determine that a person is incapable of making reasonable judgments. However, in this regard, the Board considered WFXGI’s choice to be reasonable in any event.
The Board was concerned that DQ and TQ viewed the fact of WFXGI’s dementia as licence to ‘control his life’ through the facility of internet access to his account. When confronted with DQ’s attempts to control his access to funds, WFXGI cancelled DQ’s access. Even following that, DQ obtained information from bank staff about WFXGI’s transactions without any authority whatsoever. DQ and TQ did not afford WFXGI any privacy with regard to the manner in which he spent his funds, nor how he conducts his relationships. When it was suggested to DQ and TQ that WFXGI was cross about these restrictions (similarly to a teenager having their allowance restricted), such a suggestion was rejected outright by them. Seeing WFXGI in person, the Board took the opposite view,
The Board considered the appointment of the Public Trustee to be appropriate. However the Board was concerned that WFXGI seems to be enjoying using the funds hitherto invested in a term deposit on lunches and daily pleasures and would not like to see the appointment intrude on that enjoyment.
At 84 years, the Board considered that the term “life savings” has a different meaning than it would at, say, 54 years. At 84 years, there are very few contingencies for great expense that would not be covered either within the Aged Care system (in which WFXGI is already established) or within the public health system. All Aged Care is presently set at a rate of 87% of a person’s pension, which WFXGI already meets. It was suggested that there may be a need for funds for an operation, but it is hard to imagine a medical practitioner recommending elective surgery for many conditions for an 84 year old man. As emergency surgery would be publicly funded, the Board did not see future operations as the ‘rainy day’ against which one would put $150,000.00.
The Board viewed what is purported to be WFXGI’s final will. There was nothing in that which caused the Board concern from the perspective of an administrator’s responsibilities pursuant to section 60 of the Act. The Board sees no difficulty in WFXGI using funds at a rate of $500 per week on top of his pension if such expenditure causes him enjoyment. He could spend at that rate until he is 91 years of age and only then exhaust the term deposited funds. An administrator might attempt to negotiate a lesser fee for board at XXXX if he is not eating the lunches provided.
To ensure that the administrator appreciates the Board’s perspective on the use of funds and to hedge against the concerns for strict prudence that a Trustee may have, the Board considered it appropriate to endorse the continued expenditure, so we have included an approval to that effect in the order.
Is WFXGI in need of a guardian? – Sections 20(1)(c)
WFXGI’s accommodation is settled, he is in reasonable health and there are no threats to his current state of wellbeing. The applicant conceded that “no harm at all” had come to WFXGI despite his grave fears. DQ and TQ’s main concerns appeared to be (i) that since they had raised concerns about his finances, they have difficulty contacting WFXGI – which the Board considered was either a reflection that WFXGI is cross with them or that his social life is a little hectic, and (ii) that he continues to drive – which has been addressed by the doctor removing his licence – it may remain that an administrator may need to sell the vehicle to prevent him driving it. Neither of these concerns would justify the need for a guardian on the current evidence.
On all of the evidence presented in the application, the only guardianship power relevant to the applicant’s concerns would be the power pursuant to section 25(2)(d) to exclude visitors where such visitors may have an adverse effect on the represented person. Having heard the evidence of the witnesses, WFXGI’s joy in describing his friendship with OI and having observed their comfort in each other’s company, the Board could not determine that she has any adverse effect, except upon his bank account. That potential “adverse effect” is not much different to a younger man at 24, 44, or 64 years of age in the early stages of an exciting, new friendship with a woman. He can afford it and ought to enjoy it while he can.
The application for appointment of a guardian is dismissed.
Anita Smith Susan Hill Philippa Whyte
PRESIDENT MEMBER MEMBER
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