The Administration Order for CEC made on 20 December 2022 has been reviewed and is varied and from this day the order is the Public Trustee (Tas) is appointed as administrator for CEC until 25 November 2025.

Guardianship stream - Review of administration order; Impaired decision-making ability; Need for an administrator; Promotion of personal and social well-being; Conflict; Eligibility under the Testator's Family Maintenance Act 1912; Entitlements under Intestacy Act 2010

Guardianship and Administration Act 1995 (Tas); ss 8, 51, 52, 54, 67, 68.

Intestacy Act 2010 (Tas); s 28.

The decision has been anonymised for the purpose of publication. The publication of evidence given before the Tribunal and the contents of any documents produced, or the name of any party or witness in the proceedings is prohibited.

1. CEC is a 55 year old man who resides in his deceased mother's home in southern Tasmania. CEC resided with his mother, IC, prior to her death. LC, who was CEC's administrator pursuant to an administration order made on 20 December 2022 lives in her home in the next door property.

1. The matter came before the Tasmanian Civil and Administrative Tribunal (the Tribunal) for a Tribunal's Own Motion Review in relation to the administration order of 20 December 2022.That order was due to expire on 19 December 2024. The Tribunal's Own Motion application was listed on 19 December 2024 but was adjourned on this date to obtain a health care professional report and again on 15 April 2025 to obtain clarity around the contents of the health care professional report completed by Dr Jay Shoemaker dated 17 February 2025 (HPR). During the periods of the adjournment the Public Trustee was appointed as administrator. The matter was ultimately heard on 26 May 2025 at which time the Public Trustee was appointed as administrator with plenary powers over CEC's estate until 25 November 2025.
2. The hearing was attended by CEC, CEC's sisters LC, and KJ, together with Christine Foster from the Public Trustee, all of whom attended in person. Dr Shoemaker attended the hearing briefly by telephone to provide additional information to that detailed in the HPR and to answer any questions in relation to that report or matters surrounding a determination of impaired decision making.
3. We received a request for written reasons of our decision from LC.

1. On 1 September 2024, significant amendments were made to the Guardianship and Administration Act 1995 (Tas) ("the Act"). These changes removed the requirement to consider the "best interests" of the represented person, replacing it with a focus on promoting a person's "personal and social well-being". This marks a shift in the legislation from a "best interests" approach to one that prioritises a "rights, will, and preferences approach".
2. The power of the Tribunal to review administration orders is derived from s 67 of the Act, while s 68 outlines actions the Tribunal may take after undertaking a review which include varying, continuing or revoking an order.
3. Section 51 of the Act outlines the criteria which must be met before the Tribunal can continue an administration order. These criteria require the Tribunal to be satisfied that the person:
   1. Has impaired decision-making ability in respect of decisions relating to personal and/or financial matters; and
   2. is in need of a guardian and/or administrator; and
   3. the Tribunal is satisfied that the order will promote the person's personal and social well-being.
4. When determining the element of need, the Tribunal must consider: the wishes and preferences of the person; whether need can be met by other means less restrictive of the person's freedom of decision and action; and the wishes and preferences of any close family members, carers and other significant persons.
5. When making its decision, the Tribunal must observe the principles contained in s 8 of the Act.
6. If the Tribunal is satisfied that an order should be made, then the criteria provided in s 54 must be applied to determine the suitability of the person seeking appointment. In accordance with those provisions, the Tribunal may only appoint the Public Trustee if satisfied there is no person eligible for appointment.
7. An adult will be eligible for appointment if they consent to take on the role, and in the Tribunal's opinion, the person:
   1. Understands their obligations and duties and will comply with the requirements under the Act; and;
   2. is a suitable person to act as administrator and/or guardian.
8. Section 54(4) outlines the factors the Tribunal must consider when determining suitability, including:
   1. The wishes and preferences of the represented person, as far as they can be ascertained;
   2. the desirability of preserving significant relationships;
   3. the compatibility of the proposed guardian with the represented person and any appointed administrator;
   4. the extent of potential conflicts of interest;
   5. the preference for appointing someone with a personal relationship with the represented person.

1. LC provided a statement dated 3 October 2024 advising it was her position that the administration order made on 20 December 2022 should not be renewed on expiration. LC stated:

His [CEC] other siblings (as well as himself) are aware of this [organising a budget for CEC and setting up a system of checks and balances to safeguard his funds] and it will continue at the expiration of the order. I will continue to manage his funds with this experience in mind, and a plan has been formulated with his other siblings should anything happen in the meantime to myself, and I am unable to continue doing this. > > The gravity of assisting CEC make decisions as well as financial has weighed heavily on myself and all his siblings since his accident and continues to do so in dealing with every aspect of CEC's life. These decisions are ever present and continue on a daily basis and are discussed amongst us.

2. However, a Tribunal's Own Motion review hearing was determined appropriate to consider whether the administration order should continue, vary or lapse.

1. We had the benefit of the HPR dated 17 February 2025 from Dr Shoemaker who has been CEC's general practitioner since August 2024. Dr Shoemaker advised he generally saw CEC every two months.
2. Dr Shoemaker advised in the HPR that the cause of CEC's impaired decision-making ability was due to an acquired brain injury as a result of an accident, with his condition evident since 17 December 2021. In addition, CEC lives with brain scarring, chronic kidney disease, kidney stones, and anxiety/depression.
3. The HPR advised that CEC had decision-making ability about some or all of his financial matters, advising CEC was able to understand, retain, use and weigh information relevant to the decisions, communicate the decision and "would be okay with simple things given his condition has improved with medication". However, the HPR noted CEC "would require help with complex financials and IT devices."
4. Dr Shoemaker also wrote in response to whether CEC could retain information relevant to financial decisions for a sufficient time to make and consistently communicate the decision, that CEC is "ok for simple tasks, would have difficulty with retaining complex financial info".
5. In relation to CEC's decision-making ability with regard to day to day financial requirements, Dr Shoemaker advised "with assistance" and for complex financial and legal decisions, he advised that CEC would be "unable".
6. Dr Shoemaker attended the hearing at its commencement to clarify matters arising from the HPR and we are very grateful to him for making himself available. Dr Shoemaker detailed that CEC would be able to undertake "simple basic day to day things" and he provided the example that CEC would be able go to a shop with money and make a simple purchase. Dr Shoemaker agreed to a question from the Tribunal that CEC could go to the shop and buy a carton of milk and a newspaper.
7. Dr Shoemaker reported "if he was going to the shop, he would be able to weigh up what he wanted to spend money on....... there would be grey areas in between in terms of managing a bank account....might be difficult". Dr Shoemaker advised managing a bank account would be problematic. Dr Shoemaker confirmed that with complex financial and legal matters, his opinion was CEC would be unable to make those decisions. Dr Shoemaker detailed that CEC would have difficulty with complex financial arrangements, for example making superannuation decisions, or buying a house.
8. When asked about paying bills like an electricity bill or car registration, or insurance on a property, or for personal items, Dr Shoemaker advised "my understanding is that family are doing it for him at the moment" and that CEC is "quite happy with that setup from our discussion. I'm not going to say that he wouldn't necessarily be able to pay some simple bills but that probably I don't think he would be interested in that". Dr Shoemaker informed us "he [CEC] was quite happy to accept the help, and it seemed like he had a good rapport with, you know, the people are helping him with these sorts of things."
9. KJ and LC did not disagree with the medical evidence outlined in the HPR or the evidence of Dr Shoemaker at the hearing. We were not provided with alternate medical evidence to contradict Dr Shoemaker's opinion that CEC had impaired decision-making in respect of financial matters.
10. Based on the medical evidence before us, we are satisfied that CEC has impaired decision-making in respect of financial matters due to an acquired brain injury which prevents him from understanding, retaining, using and weighing necessary information for decision-making in relation to day to day financial matters and complex financial and legal matters.

1. To make an order appointing an administrator, we must be satisfied that CEC is currently in need of an administrator as required by s 51(1)(c) of the Act. For the purposes of determining this, we must consider, pursuant to s 51(2) of the Act, the wishes and preferences of CEC; whether CEC's needs can be met by other less restrictive means; and the wishes and preferences of CEC's close family members, carers and other significant persons in his life.
2. LC advised the Tribunal that she does not believe there is a need for an administrator through a formal procedure now that CEC is taking his medication, and his condition has settled. LC was of the opinion CEC's finances could be managed informally. LC had formed the view an administrator was not required, that she and family members would manage CEC's accounts as has occurred since the accident as a continuation as what has happened previously. LC advised that as his accountant prior to his accident she had:

done his accounts, etcetera. Sort of more or less the same. It's really just a continuation of what happened before the accident. I did all his business accounting and I've done his tax returns for years. I've helped him out in that capacity anyway. So it's nothing that's really changed

3. It is important to recognise that when undertaking the role described by LC before the accident LC did so on CEC's instructions and with his express authority.
4. During the period LC was the appointed administrator, she advised that she would: transfer a certain amount of funds into a working account for CEC; manage his bank accounts; she wound up his business because he was unable to work as a result of the injuries sustained in the accident; resolved the insurance claim; managed the insurance payout; met tax liabilities as a result of the windup of the business; managed CEC's disability pension; private health insurance payments; managed his term deposit; and made decisions in respect of the interest payable on the term deposit. LC was unable to explain or appreciate how she would be able to continue to undertake such matters without legal authority to do so.
5. In addition to the matters referred to at [28] it became apparent that there were complex financial and legal decisions to be made for CEC noting he is living in his late mother's home. His mother IC died intestate. We were advised the Personal Representatives of IC's estate are LC and KJ.
6. LC initially gave evidence CEC was living with her and paying her $250.00 per week for rent and board. However, towards the conclusion of the hearing that evidence changed. CEC was in fact living in IC's home and until the appointment of the Public Trustee had been paying IC's estate $250.00 per week. LC advised the payment of $250.00 per week ceased on the appointment of the Public Trustee, although it was unclear why.
7. LC advised that CEC was a beneficiary of IC's estate and the home in which he was residing would need to be sold to pay the beneficiaries' entitlements. KJ gave evidence solicitors were not involved in the administration of IC's estate. KJ told us she was managing all matters relating to the administration of the estate because of her knowledge of such procedures given her previous employment. KJ confirmed IC had died intestate, and an application for Letters of Administration had been made, however CEC had renounced his entitlement to apply for Letters of Administration and had made such renunciation while under an administration order. KJ gave evidence she had prepared the Renunciation for signature by CEC and had also prepared the application for Letters of Administration. The grant of Letters of Administration issued on 10 January 2025.
8. The Public Trustee advised it not been made aware of the entitlement of CEC in IC's estate and therefore CEC had not had the benefit of any independent advice about those entitlements. The Public Trustee were also not made aware of the Renunciation CEC signed in relation to the application for Letters of Administration nor how it was determined it was appropriate for CEC to do so despite the existence of the administrator.
9. Consideration would also be needed as to the validity of the Renunciation signed by CEC. Further, an order would ensure CEC receives his entitlements under s 28 of the Intestacy Act 2010 (Intestacy Act), given his entitlements are bound up with those of his siblings and the daughter of a deceased child of the intestate who also has entitlements pursuant to s 28(4) of the Intestacy Act.
10. The evidence before us demonstrates an administrator is necessary to protect and enhance CEC's personal and social wellbeing and to ensure his financial needs are met and his entitlements in IC's estate are protected. An administrator is required to manage his bank accounts including a term deposit and his superannuation entitlements. If CEC needs to move from his home, financial decisions will be required for alternate accommodation.

1. CEC's evidence was that he is accepting of his sister LC as the previous administrator, and he was comfortable with the support she provided to him while administrator. This evidence from CEC was consistent with the evidence of Dr Shoemaker. While this evidence is important, and we must take it into account, CEC is unable to appreciate the need for an independent administrator because of his entitlements in IC's estate.

Can CEC's needs be met by any other less restrictive methods?

1. LC and KJ are of the view that an administrator is no longer required, and that CEC's financial needs could be met informally by family members. LC and KJ do not appear to recognise that in circumstances where CEC has impaired decision making in relation to financial matters, without an administrator there is no legal authority for anyone to undertake such a role.
2. Important information came to light during the course of the hearing, namely, that IC had passed away intestate; that CEC had entitlements in IC's estate; that he had signed a Renunciation of his entitlement to apply for Letters of Administration while under an administration order; that he had an entitlement to obtain independent advice about his entitlement to make a claim against his mother's estate noting given the date of the grant of Letters of Administration an extension of time would be required. There are considerable complex legal and financial matters which require determination and cannot be resolved, without the benefit of an administrator.

Wishes and preferences of any close family members, carers, other significant persons in CEC's life

1. LC and KJ did not accept CEC's need for an administrator for the reasons outlined above. It appeared they were both labouring under the misapprehension that management of CEC's financial affairs and complex legal matters regarding his entitlements in IC's estate could be dealt with informally.
2. Further, LC and KJ did not appreciate the conflict with regard to their role as Personal Representatives of their mother's estate and the entitlements of CEC to the benefit of independent advice about his entitlements under IC's estate and his eligibility under the Testator's Family Maintenance Act.

Promotion of CEC's personal and social wellbeing

1. As a result of amendments to the Act, the focus has shifted from a best interest approach to one that prioritises the promotion of CEC's personal and social wellbeing. That is therefore integral to the decision-making process. The appointment of an administrator will promote CEC's personal and social wellbeing by enabling him to obtain appropriate advice regarding his entitlements in IC's estate.
2. His personal and social wellbeing will be further promoted by ensuring his financial affairs are appropriately managed, financial arrangements for accommodation are put in place, his periodic expenses are paid as and when they fall due, and medical expenses are met. In addition, proper management of CEC's bank accounts including his term deposit and management of his superannuation entitlements can occur enabling CEC to undertake activities which provide him with enjoyment including being able to go to Melbourne to attend a football game.
3. The Public Trustee advised us an administration order was required and that it would promote CEC's personal and social wellbeing which included resolving issues relating to IC's estate.
4. We are satisfied an administration order would promote CEC's personal and social wellbeing by ensuring that decisions are made in a way which preserves his dignity, respects his individuality and addresses his ongoing financial needs.

1. There is an entitlement of CEC to obtain advice about his entitlements in his mother's estate, noting also CEC is an eligible person under the Testator's Family Maintenance Act 1912 Act (Tas) (Testator's Family Maintenance Act) and such advice must be able to be obtained free from the potential conflict of interest with his siblings.
2. It is appropriate that an independent administrator be appointed for a sufficient period to enable advice to be obtained by CEC in relation to his entitlements in IC's estate and his eligibility under the Testator's Family Maintenance Act. That cannot occur if one of the Personal Representatives of IC's estate is appointed as his administrator.
3. To appoint LC as administrator would create a conflict given she is one of the Personal Representatives of IC's estate and personally a beneficiary of that estate. By way of example, it is not appropriate that advice be provided to CEC's administrator about his eligibility under the Testator's Family Maintenance Act when that same person is also a Personal Representative and beneficiary of that estate under s 28 of the Intestacy Act.
4. In addition, the Personal Representatives have an obligation to the beneficiaries to maximise the value of IC's estate, and that would place LC in conflict when negotiating and making living arrangements for CEC in IC's home pending finalisation of her estate. We were advised that the Personal Representatives intend to sell IC's home which will result in CEC losing his home where he has lived with IC for several years.
5. Once all matters relating to CEC's mother's estate are resolved, it may even be appropriate for a family member to be appointed as administrator, however it is not appropriate that this occurs in the short term. We are satisfied that the Public Trustee should be appointed as financial administrator based on the evidence presented as this will ensure CEC's financial matters will be managed in a transparent and impartial manner with appropriate oversight in place.

1. As detailed at 48, it maybe that once all matters relating to the estate of CEC's late mother have been resolved more appropriate that a family member take on the role of administrator. We therefore determined the duration of the administration order for CEC should be for a period of six months only. In making this determination we have had regard to the provisions of s 52(2) of the Act.

The administration order for CEC made on 20 December 2022 has been reviewed and is varied and from this day the order is the Public Trustee (Tas) is appointed as administrator for CEC until 25 November 2025.