Legislation: Guardianship and Management of Property Act 1991

ss 9(5), 31(1)(a)

Texts/Papers: Explanatory Statement, Guardianship and Management of Property Bill 1991

Appeal Tribunal: Mr W.G Stefaniak AM - Appeal President

Publication of reasons for decision: 5 November 2014

Appeal Tribunal: Mr W.G Stefaniak AM - Appeal President

1. Appeal dismissed
2. Order of the original tribunal dated 22 April 2014 is varied and the following orders substituted:

1. Gregory Thomas Lee is appointed guardian for Rodney John Lee (the protected person) with the following powers:
   • (a) to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure);
   • (b) to make other personal decisions and arrangements needed to ensure that the protected person's health and welfare needs are met and to protect him from unreasonable risks to his health and welfare.
   • (c) to do the things necessary to give effect to decisions about the matters set out above, including (but not limited to):
     • (i) giving or receiving information; or
     • (ii) giving consent to investigations or assessments; or,
     • (iii) participating in negotiations; or
     • (iv) Signing documents
2. The Tribunal will review this appointment on its own initiative before 22 April 2017
3. The guardian must notify the Tribunal of any change to the address of, or of any other significant change in circumstances of themselves or of the protected person.

The Tribunal finds that Gregory Thomas Lee is suitable for appointment as the protected person's financial manager and orders as follow:

1. Gregory Thomas lee is appointed as manager to manage all of the property of Rodney John Lee (the protected person) with the following powers:
   • (i) all the powers that the protected person would have been entitled to exercise if he were legally competent to exercise powers in relation to his property himself.
2. The manager is directed to obtain the endorsement of the Public Trustee of any sale, purchase or mortgaging of real property and to provide information as requested by the Public Trustee for the Australian Capital Territory about any such dealing and is further to seek the endorsement of the Public Trustee before implementing any decision to divest or make any significant change to the protected person's superannuation scheme investment.
3. If the Public Trustee refuses to provide an endorsement pursuant to order 5 above it shall seek a direction from ACAT pursuant to section 16 of the Guardianship and Management of Property Act 1991.
4. The Tribunal will review on its own initiative before 22 April 2017.
5. The manager must notify the Tribunal of any change of the address of, or of any significant change in circumstances of, themselves or of the protected person.

The Tribunal notes that there may be uncertainty or disagreement about what property that forms the pool of property that can be managed under this order. The Tribunal cannot determine that issue and encourages the manager and the Public Trustee for the Australian Capital Territory to work together to remove any uncertainty or disagreement.

1. For a full consideration of the decision and reasons in this matter regard should be had to the transcript of the proceedings before this Appeal Tribunal dated 31 July 2014. This written summary has been prepared for simplicity's sake and for easy reference to the basic reasons behind the decision. The Appeal Tribunal agrees with the submission of Counsel for the Public Trustee for the ACT (the Public Trustee) that for simplicity and clarity's sake the legislation should be amended to remove any possible ambiguity between the interpretation of section 9(5) and section 31(1) (a) of the Guardianship and Management of Property Act 1991 (the GM Act). The tribunal commends this suggestion to the Attorney General.
2. In 2001 Rodney John Lee was involved in a severe accident and as a result is permanently confined to a wheelchair and is not able to look after his basic needs. His ability to make decisions is impaired. Accordingly, it was essential for a guardian to be appointed, and for a manager to be appointed to protect Rodney's financial needs. Rodney's brother Gregory Thomas Lee (Greg Lee) was appointed guardian and the Public Trustee was appointed financial manager.
3. A consent judgement was made in the Supreme Court of the Australian Capital Territory in 2011 awarding Rodney Lee $13.25 million and this was invested in an excellent superannuation scheme by the Public Trustee. The Public Trustee wished to continue as the financial manager as it felt it had a duty to do so as a result of the order made in the Supreme Court. It was not contested that if Greg Lee was made Rodney's financial manager, approximately $70,000 a year would be saved in fees otherwise payable to the Public Trustee.
4. The Public Trustee has always and most properly maintained that it was not interested in the money it made from the fees charged. He made it quite clear that he saw his role as one imposed upon him by virtue of the Supreme Court order.

1. It should be said at the outset that this tribunal could not find anything to actually indicate the Supreme Court intended the Public Trustee to be the financial manager indefinitely. Indeed the consent judgement of 2011 referred to the Public Advocate. The Public Advocate then ensured the money was transferred to the Public Trustee as was right and proper.
2. From 2011 the matter happily continued along with the Public Trustee investing the significant payout very wisely and obtaining for Rodney Lee a very good return on the investment. On 22 April 2014 Greg Lee was appointed financial manager as well as guardian with ACAT having an advisory and directive role in relation to the superannuation fund. The Public Trustee appealed the matter to this tribunal on the basis that section 31(1) of the GM Act as outlined below stipulates:
   1. Removal by ACAT

_(1) The ACAT may, by order, remove a person appointed as a guardian or manager if it is satisfied that - _

(a) the person is no longer suitable to be a guardian or manager; or

(b) the person is no longer competent to exercise the functions or powers of a guardian or manager; or

(c) the person has failed to exercise the functions or powers of a guardian or manager; or

(d) the person has contravened a provision of this Act.

_(2) The ACAT may, by order, remove a manager of a missing person's property if satisfied, on application by the person or anyone else, that - _

1. The Public Trustee's argument was that a suitable guardian or manager cannot be removed. There is, and never was, any dispute about the suitability of the Public Trustee. The Public Trustee has done a fine job in administering Rodney's financial affairs. There was also no dispute about the suitability of Greg Lee either as a guardian or as a financial manager. Both he and the Public Trustee tick all the relevant boxes in the Act in terms of suitability. The fundamental issue revolved around the interpretation of the Act, specifically sections 31(1)(a) and 9(5).
2. Section 9 deals with who may be appointed. Section 9 (1) states that the public advocate or an individual may be appointed as a guardian. Section 9(2) states that the public advocate, the public trustee, a trustee company, or an individual may be appointed as a manager. Section 9(3) states a person may be appointed both guardian and manager, and people may be appointed jointly as guardians or managers, or both. Section 9(4) states the public advocate must not be appointed as a person's guardian if an individual who is otherwise suitable has consented to be appointed. And, section 9(5) states- and this is the crucial subsection- the public advocate, the public trustee, or a trustee company must not be appointed as a manager of a person's property if an individual who is otherwise suitable has consented to be appointed.
3. The tribunal had regard to the submissions made by counsel for the parties and the various sections of the GM Act which might affect this matter. The Explanatory Statement of the 1991 Bill is also of assistance. It clearly indicated that where there is a suitable, natural person available such as a relative or close friend, that person takes precedence in terms of appointment over a public official, or in management matters, over a trustee company. In 1991 the Public Trustee did not get a mention in the statement, however the intent of the statement is quite clear. It indicates the clear intent of the legislature that a suitable natural person such as a relative or close friend takes precedence over a public official.
4. Counsel for the respondent indicated that the GM Act was beneficial legislation and should be interpreted accordingly. It is the view of this tribunal that the intent of the legislature is clear.
5. If section 31(1)(a) were not worded in the way it is, there really would be no issue. However the wording does lead to an ambiguity and counsel for the appellant quite properly put that section 31 clearly, on a reading of it, intended for a person to be removed as a guardian or manager if they had done something wrong or were for some reason no longer able to carry out the task. The rest of section 31 deals with situations where a person is no longer competent, or has failed to exercise their functions or powers, or who has contravened a provision of the Act. It also deals with when a person is dead or presumed to be dead. All of these criteria are obvious impediments to being a guardian or manager. The argument of the appellant was that section 31(1)(a) should be read in conjunction with the other subsections and there had to be some form of inability to be a suitable guardian or manager before a person could be replaced.
6. An alternative reading of section 31 could indicate that each of the various subsections are stand-alone because the word "or" appears after each subsection.
7. There is an ambiguity here, but section 9 and specifically section 9(5) of the GM Act makes it crystal clear that if there is a suitable natural person that person takes precedence over a government official . To quote the transcript of 31 July 2014:

" it is the view of this tribunal that the clear intent of the Act is that fundamentally, if there is a suitable family member or a suitable close friend, that person takes precedence. In other words, once Mr Greg Lee is deemed to be suitable to take over the role of guardian (and /or manager), the Public Trustee as a public official, public identity, institution, takes second precedence."

1. This is in no way saying that the Public Trustee is not suitable. The Public Trustee has done a great job and is clearly suitable. It is just that Mr Greg Lee is deemed to be the most suitable person once he is able to become the financial manager as well as guardian. He is effectively deemed to be more suitable than the Public Trustee and as a result of that, the Public Trustee is then said to be no longer suitable to be a guardian or manager, not because of anything the Public Trustee has done wrong but simply because the intent of the GM Act is to have a suitable family member or close friend take precedence if they are suitable .In this way the Public Trustee is no longer suitable in accordance with section 31(1)(a) the interpretation of which is dependent upon and guided by section 9 specifically section 9(5).
2. It is the view of this tribunal that the counsel for the Appellant is quite correct in stating that any potential ambiguity should be removed by the legislature. It would seem to this tribunal that a simple amendment could be made to section 31 to put beyond any doubt what this tribunal sees and finds as the clear intent of the legislature as expressed in section 9 (5). The Tribunal commends such an amendment to the Attorney.
3. The decision of the learned President at first instance was thus accepted but varied because this tribunal saw a continuing role for the Public Trustee rather than ACAT. As the appointment of a guardian or manager has to be reviewed every 3 years, and as this can be reviewed earlier than that if need be, and, as ACAT has a supervisory role in all of this; this tribunal did not feel the need for ACAT to be involved in terms of giving directions in relation to the superannuation fund. Given that the Public Trustee has done such a good job, we felt it should have a continuing role in relation to the fund so that if Mr Greg Lee was going to make some decisions that may be detrimental to his brother, the Public Trustee would be able to step in and take some appropriate action. An appropriate order has accordingly been crafted to reflect this.
4. The original tribunal's order of 22 April 2014 is accordingly amended specifically by inserting a new paragraph 5 and 6 in place of that part of the original order. Paragraphs 5 and 6 now read as follows:

1. the manager is directed to obtain the endorsement of the Public Trustee of any sale, purchase or mortgaging of real property and to provide information as requested by the Public Trustee for the Australian Capital Territory about any such dealing and is further to seek the endorsement of the Public Trustee before implementing any decision to divest or make any significant change to the protected persons superannuation scheme investment.

1. If the Public Trustee refuses to provide an endorsement pursuant to order 5 above it shall seek a direction from ACAT pursuant to section 16 of the Guardianship and Management of Property Act 1991."

1. This tribunal has made the above amendment to the original order to ensure that Rodney Lee will be getting the best of both worlds. His brother has shown himself to be a loving, caring, diligent and competent guardian and manager, and, the Public Trustee has shown itself to be a very efficient, diligent and competent financial manager. Two good minds are better than one. The Public Trustee will of course still be able to charge at its hourly rate for any further assistance it gives. The day-to-day running of the financial affairs of Rodney will now be done by his brother Greg. This will save the fund close to $70,000 a year and although $13.25 million sounds like a huge amount of money, over the years and with escalating medical costs it is certainly prudent to make any sensible savings wherever possible to maximise the effect of the award given to Rodney by the Supreme Court.
2. This Tribunal commends Mr Andrew Taylor, his staff and Mr Greg Lee for their diligence and competence to date and for the assistance they have and continue to provide to Rodney and thanks counsel for both parties for their helpful submissions. We further commend to the Attorney, the desirability of a simple clarifying amendment to section 31(1)(a) as discussed above.

Error! Reference source not found.

(1) The public advocate or an individual may be appointed as a guardian.

(2) The public advocate, the public trustee, a trustee company or an individual may be appointed as a manager.

(3) A person may be appointed both guardian and manager, and people may be appointed jointly as guardians or managers, or both.

(4) The public advocate must not be appointed as a person's guardian if an individual who is otherwise suitable has consented to be appointed.

(5) The public advocate, the public trustee or a trustee company must not be appointed as a manager of a person's property if an individual who is otherwise suitable has consented to be appointed.

(1) The ACAT may, on application, give a direction to a guardian or manager about the exercise of his or her functions or powers.

(2) A guardian or manager must not, without reasonable excuse, contravene a direction.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(1) The ACAT may, by order, remove a person appointed as a guardian or manager if it is satisfied that -

(a) the person is no longer suitable to be a guardian or manager; or

(b) the person is no longer competent to exercise the functions or powers of a guardian or manager; or

(c) the person has failed to exercise the functions or powers of a guardian or manager; or

(d) the person has contravened a provision of this Act.

(2) The ACAT may, by order, remove a manager of a missing person's property if satisfied, on application by the person or anyone else, that -