Guardianship stream – application for administration – whether
person has impaired decision-making ability – where
no formal health
practitioner report available – where no evidence that requirements of
Source
Original judgment source is linked above.
Catchwords
Guardianship stream – application for administration – whetherperson has impaired decision-making ability – whereno formal healthpractitioner report available – where no evidence that requirements ofSection 13 of the Act were met by healthpractitioner – whetherrequirements in Section 13 of the Act being met are a precondition to Tribunalmaking an order –Administrator appointed.
Judgment (7 paragraphs)
[1]
The application has arisen in the context of financial difficulties in the relationship between FM and the Aged Care Facility. We had written submissions from KN and heard evidence from KN and SN at the hearing. In summary:
FM and his partner each reside in the Aged Care Facility.
The home that FM and his partner had previously shared was in his partner's sole name. Upon their entry into the Facility, the property was sold by the attorney for FM's partner, and the funds form the sale used to fund a Refundable Accommodation Deposit for FM's partner.
FM has been assessed as being required to pay a Daily Accommodation Payment as a result of Services Australia assessing his means on the basis of the joint assets of he and his partner.
The attorney for FM's partner has reportedly refused to assist in the payment of FM's aged care costs or accept that he had any interest in the proceeds of sale of the former home.
FM's only income is the aged pension. As a result, FM's aged care costs exceed his capacity to pay by around $500.00 per week.
They are concerned that the continually accruing debt with the Aged Care Facility may lead to his eviction from the facility.
Without a substitute decision maker, they have been unable to make any type of hardship application to Services Australia on FM's behalf.
In addition, with the exception of some smaller transactions, KN and SN are already informally managing FM's financial affairs on his behalf.
TH, an accounts supervisor for the Aged Care Facility, confirmed KN and SN's evidence with respect to the debt accruing and the reasons for its accrual. Whilst TH made clear that eviction was an absolute last resort, it is apparent to us that there is an immediate need for steps to be taken to resolve the situation to protect FM's place in the facility.
FM told us firmly that his primary concern was remaining in the facility with his partner and we accept and respect his wishes and preferences in that regard.
Ms Li of the Public Trustee submitted that on the evidence before the us there was a need for an administrator and that FM would benefit from the appointment.
In all of the circumstances we are satisfied that there is a need for an administrator:
To ensure the security of FM's aged care place including but not limited to hardship and review application with Services Australia;
To deal with the debt accruing to the Aged Care Facility; and
To take advice in relation to, and consider, any entitlement that FM may have to the assets of his relationship with his partner.
We have considered the least restrictive means possible of meeting FM's needs and have determined that there is no alternative but to appoint an administrator with plenary powers. FM's day to day financial affairs appears relatively settled, but we cannot discount the need for an administrator to make changes to those affairs in order to ensure FM's security of tenure in the Aged Care Facility.
[2]
We have considered the evidence before us and FM's own wishes and preferences in relation to the matters raised in the application and the hearing and the impact that making an administration order will have on his personal and social wellbeing.
We are positively satisfied that the making of an administration order will promote FM's personal and social wellbeing by providing a substitute decision maker that can take steps to protect his place in the aged care facility and fulfill his overarching desire to remain in the facility with his partner.
[3]
Appointment of Public Trustee, Gifting, and Length of Order
[4]
KN, as applicant, requested that the Tribunal appoint the Public Trustee as administrator. No other party has sought or consented to appointment, and having determined to appoint an administrator we are compelled in the circumstances to appoint the Public Trustee by virtue of s 54(1)(b) of the Act.
We heard from FM and KN that FM likes to give gifts from time to time, and we determined to make an order allowing the administrator to make gifts from FM's estate up to an annual value of $300.00.
We have considered the length of order that will be the least restrictive required in all of the circumstances. Ms Li submitted to us that it may take up to two years to resolve issues with respect to FM's aged care place and negotiations with Services Australia. We have accepted that submission and made an order for two years from the date of the hearing, on the understanding that the Act allows for review of the order if circumstances change prior.
[5]
1. The Public Trustee (Tas) is appointed as administrator for FM, until 3 September 2027.
[6]
2. The administrator is to lodge with the Tribunal a financial summary relating to the financial matters of FM within 6 weeks from the date of this order.
[7]
3. The administrator is authorised to distribute gifts from FM's estate to a maximum of $300.00 per year. Such gifts are subject to the administrator's discretion.
Legislation Cited (6)
Administration Act 1995
Administration Regulations 2017
Civil and Administrative Tribunal Act 2020
Administration Regulations 2017
Administration Act 1995
Civil and Administrative Tribunal Act 2020
Cases Cited (4)
FM (Application for Administration) [2025] TASCAT 187 (24 September 2025)