appellant. Extension of time granted for internal review application (to 26 February 2020); leave granted to TGP to make internal review; the administration order of 19 September 2019 is varied: PRJ appointed...
Key principles
Where recent and persuasive medical evidence demonstrates a marked deterioration in decision-making capacity that affects both short-term financial management and capacity to run...
The Tribunal must apply the suitability criteria in s 50 of the Guardianship and Administration Act 1993 and the principles in s 5 when deciding who to appoint as administrator,...
A tribunal should not assume that the Public Trustee is the only suitable appointee simply because complex legal issues (such as potential litigation) exist; the tribunal must...
Issues before the court
Whether the Tribunal should have made a limited administration order (restricted to the boat/legal dispute and substantial savings) rather than a...
Whether the Public Trustee was correctly appointed as administrator or whether the nominated family member (PRJ) should have been appointed.
Whether the Tribunal should grant an extension of time for lodging the internal review application under s 70 of the SACAT Act.
Plain English Summary
On internal review of a first-instance order appointing the Public Trustee as full administrator, the Tribunal accepted fresh medical evidence showing worsening dementia and affirmed that a full administration was necessary. However, the Senior Member found the original hearing failed to make a sufficiently thorough inquiry into the nominated family member (PRJ). Applying suitability criteria and the protected person's expressed wishes, the Tribunal varied the order and appointed PRJ as full administrator, imposed annual reporting obligations, extended the time to seek review, and recommended an earlier review date.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,797 words · generated 18/06/2026
What happened
An 87‑year‑old man (given the pseudonym TGP) who had been diagnosed with mixed Alzheimer's and vascular dementia was the subject of guardianship and administration proceedings after family members became concerned about his capacity to make safe and reasoned decisions. The immediate catalyst for intervention was an impulsive purchase of a dilapidated boat for $50,000 that TGP intended to live on, despite its unsuitability given his age, physical infirmities and cognitive decline. The sale of a property had earlier left him with a significant cash balance (around $140,000), which heightened concerns about risk to his assets.
Cited legislation
2 cited instruments linked from this judgment.
At first instance (19 September 2019) the Tribunal found TGP lacked capacity and appointed the Public Trustee as full administrator, primarily because of the perceived legal complexity surrounding the boat purchase and the substantial funds now held. PRJ, the applicant's step‑daughter and the nominated private administrator, was appointed as accommodation guardian but not as administrator (the Public Trustee was appointed instead).
TGP sought an internal review under s 70 of the South Australian Civil and Administrative Tribunal Act 2013. His application for review was lodged late; the Tribunal on review extended time to accept it. Fresh evidence, including a report from Dr Robert Culver (Exhibit A1), was adduced. The Senior Member (Rainford) examined the earlier hearing materials and the new evidence, considered the statutory criteria and principles, and varied the original order. The Tribunal concluded a full administration order remained appropriate given medical evidence of marked deterioration, but the earlier decision erred in not adequately enquiring into PRJ's suitability. As a result PRJ was appointed as full administrator subject to reporting obligations and other safeguards, and a review date was recommended.
Why the court decided this way
Three interlocking reasons drove the decision.
Medical evidence established the scope of guardianship needed: The Tribunal emphasised that the scope of an administration order depends on the nature and extent of incapacity demonstrated by medical evidence. The earlier hearing relied on expert evidence, but the internal review produced a more recent report by Dr Culver which stated that the applicant had significant short‑term memory deficits and impaired planning and visuospatial function, and explicitly concluded the applicant did not have capacity to form a will or to run his finances. The Senior Member treated that evidence as decisive in supporting a full administration order rather than a limited one (see the quotation of the medical conclusion and the analysis at the review), the Tribunal explicitly stated that, in light of Dr Culver’s report, a full administration was "the correct or preferable decision" (see the internal review standard at [11] and the medical discussion).
Statutory principles require attention to wishes and suitability: The Tribunal applied the s 5 principles (including least restrictive alternative and regard to the person's likely and present wishes) and the suitability criteria in s 50 of the Guardianship and Administration Act 1993. The Senior Member emphasised that family members are often the preferred appointees and that the Tribunal must consider the protected person's wishes. TGP had expressed a wish for PRJ to act. The Senior Member therefore required a proper enquiry into PRJ's capacity to act under s 50, rather than assuming the Public Trustee was the appropriate appointee simply because a legal dispute existed.
Insufficient enquiry at first instance into the private nominee: The Senior Member found the first instance Member had confined their enquiries into PRJ primarily to whether she could manage the boat dispute and understood reporting obligations, but had not explored her financial background, frequency of contact, or how she would practically resolve the boat matter (for example by engaging legal counsel). Having heard fuller evidence on review, PRJ's recent close contact with TGP, prior office manager experience, candid acknowledgment of past bankruptcy and discharge, readiness to engage professionals, and the limited action taken by the Public Trustee (a single letter of demand), the Senior Member concluded the earlier refusal to appoint PRJ flowed from insufficient inquiry rather than demonstration of unsuitability. That prompted variation in favour of PRJ.
Collectively, the approach balanced the statutory preference for the least restrictive intervention and the protected person's preferences with the concrete need to secure and protect substantial assets where medical evidence showed incapacity.
Before and after state of the law
Before this decision, the statutory framework was clear: s 35(2) lists eligible classes of administrators (including the Public Trustee and any natural person the Tribunal considers suitable); s 50 sets out factors for assessing suitability; and s 5 requires least restrictive intervention and regard to wishes. What this decision clarifies in practice is two points:
Even though s 35(2) does not impose a 'last resort' limitation when appointing the Public Trustee (unlike s 29 for guardianship where the Public Advocate is a last resort), tribunals should not adopt a default preference for the Public Trustee simply because litigation or legal complexity exists. The decision says tribunals should conduct a proper s 50 enquiry into private nominees, and if they satisfy the criteria and the protected person's wishes favour them, a private appointment can be preferable.
The decision reinforces that updated and persuasive medical evidence can change the proper scope of an administration order between hearings. A Tribunal should reassess whether a limited order suffices in light of new medical assessments pointing to deterioration. The reviewing Tribunal must balance that medical evidence with the s 5 principles.
So after this case practitioners should expect active application of s 50 enquiries and careful engagement with the s 5 principles on review, and will take into account that the mere presence of legal issues does not automatically justify appointing the Public Trustee.
Key passages with plain-English translation
Passage: "Section 70 of the SACAT Act requires the Tribunal on internal review to examine the original decision on the evidence or material that was before the Tribunal at that time (with a discretion to allow the admission of further evidence or material) and to reach the correct or preferable decision having regard to, and giving appropriate weight to the decision at first instance." [11]
Plain English: On an internal review the Tribunal looks first at what was before the original decision, but can accept new evidence. The Tribunal should then decide what is correct or preferable overall, but must give proper weight to what the first decision-maker decided.
Passage: Quoting Dr Culver: "At this level of dysfunction I believe TGP does not have capacity to form a Will or to run his finances."
Plain English: The recent medical report says the applicant's cognitive problems are severe enough that he cannot manage significant financial affairs or make a legally valid will, which supports a broader financial protection order.
Passage: "Sometimes there is a real advantage in having the Public Trustee ... because they have direct access to legal support from the Crown Solicitor's Office."
Plain English: The first-instance Member relied on the practical benefit that the Public Trustee has ready legal support, which can help when undoing contracts or dealing with legal disputes. The Senior Member accepted this may be a factor but said it does not relieve the Tribunal of assessing whether a private person could better serve the protected person's wishes and interests.
Passage: "I have no hesitation in accepting that PRJ is a person who is willing and suitable to act as administrator of the estate of TGP."
Plain English: After hearing more about PRJ's experience, contact, and plans, the Tribunal concluded she was properly capable and willing to be the administrator.
What fact patterns trigger this precedent
Cases where a protected person has some legal/contractual entanglement (e.g. recent purchase, suspected undue influence) and also substantial liquid assets that are at risk.
Situations where family members propose a private administrator but the first-instance decision-maker appoints the Public Trustee because of perceived legal complexity.
Matters where fresh medical evidence, obtained after an initial hearing, indicates deterioration of capacity and prompts an internal review.
Applications where the Tribunal must balance least restrictive options and the protected person's expressed wishes against potential financial risk and legal contestability of transactions.
If a client is a family member seeking appointment, they should prepare evidence of recent contact, relevant financial or administrative experience, a plan for engaging professionals, and clear willingness to report and comply with statutory obligations. Conversely, if the Public Trustee is to be appointed because of anticipated litigation, it should be prepared to show active and timely legal steps taken, and justify why private appointment would be inadequate.
How later courts have treated it
This decision is a Tribunal decision applying the Guardianship and Administration Act 1993 and the SACAT Act. It is primarily persuasive within South Australian administrative practice. It emphasises procedural thoroughness when assessing private nominees and the importance of contemporary medical evidence. Later Tribunal panels will likely cite it in support of thorough s 50 enquiries and in decisions refusing to appoint the Public Trustee by default where a suitable family member exists. Practitioners should check subsequent SACAT decisions for citation and whether tribunals continue to adopt the approach of treating the Public Trustee as not presumptively preferred where private nominees meet s 50 criteria.
(As this deep dive is confined to the decision at hand, readers should research any later authority for authoritative developments.)
Still-open questions
Degree of inquiry required: The decision indicates the first-instance Tribunal's questions were “insufficient” but does not set a bright-line as to the depth of enquiry required into a private nominee's finances, professional capacity to engage legal/financial advice, or the appropriate documentary proof of financial competence. Future cases will need to define the practical evidentiary thresholds.
Interaction with the Public Trustee’s supposed advantages: The decision criticises the Public Trustee on the facts (limited action and commission charged) but does not rule out scenarios where its appointment is necessary. The line between “complexity that justifies Public Trustee appointment” and “complexity manageable by a private administrator engaging professionals” remains fact-dependent.
Timing and review practice: The Tribunal varied the order rather than setting aside and substituting a new order. Whether that pathway is always suitable when fresh evidence appears on review remains an administrative practice question.
Costs and commissions: The decision notes commission charged by the Public Trustee and weighs it as a factor. There is room for further legal clarity on how cost implications should influence appointment choices where a private administrator would itself incur professional fees.
Practitioners should prepare to demonstrate on evidence how a proposed private appointee would manage complex legal or financial issues, including anticipated professional fees and a practical plan, and to ensure medical evidence is up to date when arguing for limited or private administration.
Member Richardson (19 September 2019 - 2019/SC003616)
[3]
The applicant sought an internal review of a decision to appoint the Public Trustee as the applicant's full administrator. The applicant contended that the administration order should be limited to the legal issue regarding the applicant's boat and decisions regarding the use of his substantial savings. He also contended that his step-daughter, who is also his appointed accommodation guardian, should be appointed as his administrator.
[4]
The Public Trustee adopted a neutral position regarding the application but provided evidence of their management of the estate, and communications with the vendor of the boat.
[5]
A number of the applicant's relatives made submissions to the Tribunal in favour of his step-daughter's appointment as administrator however some questioned her ability to manage the legal issue concerning the boat.
[6]
The Tribunal found that the medical evidence regarding the applicant's decision-making capacity indicated that a full administration was appropriate. However, the original decision-maker erred by not sufficiently considering the step-daughter's suitability to be appointed administrator.
[7]
An extension of time of time is granted for the application to the date on which the application was lodged;
Leave is granted to TGP to make an application for internal review;
The applicant's step-daughter is appointed full administrator of his estate;
The administrator must provide to the Public Trustee a statement of accounts of the estate by September each year, with an annual report by September to TGP on her administration of the estate;
This order continues to have effect until further order of the Tribunal; and
The Tribunal recommends the order is reviewed on or before Thursday 16 September 2021.
[8]
Guardianship and administration - Administration orders - Full administration order
For the respondent: Mr Robert Lawton, Crown Solicitor's Office
[12]
This is an edited version of the Tribunal's statement of reasons issued pursuant to s 81 of the Guardianship and Administration Act 1993. The protected person has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.
This is an application for internal review of a decision by the Tribunal at first instance to make an order on 19 September 2019 (in matter number 2019/SC003616) appointing the Public Trustee as the full administrator of the estate of TGP.
TGP is an 87 year old gentleman who on 20 January 2018, by instrument of Enduring Power of Attorney, appointed his niece, VTM and his nephew-in-law, KGC, as his joint and several attorneys.
On 2 February 2018 TGP also appointed VTM and KGC as his substitute decision-makers under an Advance Care Directive.
TGP was diagnosed in mid-2019 with a mixed Alzheimer's and vascular dementia with severe short term memory loss when family noticed that he was repeatedly making poor decisions about his living circumstances and financial affairs. He has been assessed by two well respected Geriatricians and Consultant Physicians - Dr Boon Tan and Dr Robert Culver - who both agree on the diagnosis.
KGC (supported by VTM) applied to the Tribunal for administration and guardianship orders. In the applications they stated that TGP had separated from his wife and the matrimonial home had been sold and their property settled. TGP had moved into a retirement village where he had been living for about five months before he impulsively managed, by himself, unbeknown to them, to purchase an old boat at Hindmarsh Island for the sum of $50,000.00. He was intending to live on the boat which was moored at the local marina, however it was in need of considerable repair. In any event, even if restored, VTM and KGC considered it was totally unsuitable accommodation for TGP given his age, physical infirmities (which resulted in a recent incident where he fell and hit his head) and his mental incapacity. They also felt that he had been taken advantage of by an unscrupulous vendor. Furthermore, they were concerned that as part of his property settlement, TGP had access to a large sum of money which they considered was at risk. When they tried to intervene as the appointed substitute decision-makers and attorneys of TGP, they were met with considerable hostility on his part, to the point where they felt it was no longer possible to continue in those roles as TGP was very assertive in insisting that they not meddle in his financial dealings and legal affairs. Accordingly, they sought to renounce their appointments under the Advance Care Directive and the Enduring Power of Attorney and applied for the appointment of an independent guardian, namely the Public Advocate and an independent administrator, namely the Public Trustee.
[15]
Dr Tan was unsure if the condition (Alzheimer's and vascular dementia) was affecting TGP's ability to understand and make reasoned decisions concerning non-complex decisions.
[16]
Accordingly, the applicant argued that the order should have been limited to the administration of the legal situation regarding the boat and the substantial savings TGP has accumulated since the sale of the Magill property. Thus leaving him with control over his fortnightly pension income and payment of his living and other day-to-day expenses. Mr Womersley submitted that a limited order was the least restrictive option required by s 5(d) of the G & A Act.
[17]
I consider that the applicant's contention about limiting the order would have had considerable force at the time of the original hearing, however, in light of the most recent report of Dr Culver,[2] it appears that since 19 September 2019 there has been a marked deterioration in TGP's condition. Dr Culver states:
[18]
In summary, TGP has evidence of quite significant short term memory deficit but also impaired planning and visuospatial function. At this level of dysfunction I believe TGP does not have capacity to form a Will or to run his finances. (emphasis added)
[19]
It is clear from the affidavit and attached financial reports of Darren Ross Becker, Team Leader of Personal Estates at Public Trustee[3] that at the present time, there is a substantial cash balance in a Cash Common Fund being administered. In addition, the administrator is also making a number of regular payments including accommodation expenses, SA Ambulance, water usage and electricity.
[20]
I am satisfied from all of the medical evidence before me (including the medical reports that were before the original decision-maker) that the decision to make a full as opposed to a limited administration order is the correct or preferable decision at the present time given the unfortunate deterioration in the applicant's condition based on the most recent assessment by Dr Culver on 10 July 2020. I am satisfied that the evidence demonstrates that in his current condition TGP would struggle with managing his day-to-day finances let alone managing a large cash investment and a legal dispute over the return of the monies he paid for the purchase on repairs of the Hindmarsh Island boat.
[21]
I turn now to the second ground of contention. Mr Womersley submits that the reasons provided for not appointing PRJ as administrator are inadequate and without substance. The Tribunal member stated:[4]
[22]
After considering all the evidence I am satisfied there are complex legal issues to be resolved regarding the monies paid for the boat, that in all the circumstances there is a need for an administrator to be appointed but that, at this stage, it is not appropriate to appoint PRJ or OOP to be private administrator, and for that reason I appoint Public Trustee as full administrator...
[23]
Section 35(2) of the G & A Act, prescribes the class of persons who are eligible to be appointed as an administrator as follows:
[24]
35 (2) Any of the following may be appointed as an administrator under this section:
(a) The Public Trustee;
(b) A trustee company;
(c) Any natural person who the Tribunal considers suitable to act as administrator of the person's estate.
[25]
There is no requirement in s 35 of the G & A Act that the Tribunal be satisfied that the appointment of the Public Trustee be a last resort as there is in s 29 of the Act where the Public Advocate can only be appointed as a guardian if there are no other persons suitable and willing for appointment. However, I am of the view that a similar approach ought to be adopted when considering who to appoint as administrator for a person in need of financial and legal protection. Section 35(2) of the Act should be read in light of the s 5 principles of the Act which require the Tribunal, as a decision-maker, to have regard to the likely wishes of the person if he/she were not mentally incapacitated and to his/her present wishes. In most cases, a person is more likely to prefer the appointment of a family member or a person of significance in their life ahead of the government body for obvious reasons of trust. A family member or significant other is more likely to be seen as being more readily available and attentive to the particular needs of the protected person than a government entity charged with the responsibility of administering the estates of many people with whom they are not personally familiar.
Whilst it does not appear that the original decision-maker asked TGP directly who he would like to be his administrator if one was appointed, he was asked who he would like to be his guardian and he clearly nominated his wife and step-daughter.[5] It is, however, implicit from the evidence of PRJ that it was also his wish in relation to administration. PRJ indicated that she had attended the hearing on 19 September 2019 to nominate herself as administrator if one was appointed for TGP.[6] Furthermore, the applicant clearly expressed his wish that PRJ be appointed at the review hearing on 24 June 2020.
Mr Womersley also submits that there was no evidence before the Tribunal at first instance that PRJ was not suitable for appointment and more specifically, would not be capable of sorting out the situation with the boat. He says that there is no basis for concluding that an independent administrator was needed to manage this aspect of the estate as a natural administrator such as PRJ could, if necessary, because of the complexity of the matter, engage appropriate legal assistance.
Section 50 of the G & A Act sets out the legal criteria which must be considered when determining whether a person is suitable to be appointed an administrator (or a guardian). It states:
[26]
50-Criteria for determining suitability for appointment
(1) In determining the suitability of a person for appointment as a guardian or administrator, the Tribunal must have regard to-
(a) Whether the potential appointee and the protected person would be incompatible;
(b) Whether there is some existing family arrangement or relationship that should be preserved or should not be disturbed;
(c) Whether the potential appointee would be competent to discharge the functions of guardian or administrator under the order and would do so in accordance with the principles stated by this Act;
(d) Whether the potential appointee would be readily available for discharging those functions;
(e) Whether any conflict of interest would arise from the appointment;
(f) Such other matters as the Tribunal considers relevant.
(2) The fact that a proposed appointee is related to the protected person by blood or marriage will not, of itself, be taken to give rise to a conflict of interest.
[27]
It appears from my reading of the transcript of the audio-recording of the hearing on 19 September 2019 that the Tribunal essentially confined the enquiries of PRJ to two issues. Firstly, her ability to deal with the legal matter concerning the boat and secondly, her understanding of the requirements (under s 44 of the G & A Act) of a private administrator to report to the Public Trustee.[7] I do acknowledge, however, that there was some brief enquiry about whether any conflict existed between the applicant's blood relatives and PRJ given that she had only recently re-established contact with TGP after many years of absence_._ With respect, I consider that these enquires were insufficient. In particular, there was no proper enquiry about PRJ's personal background and experience in handling financial matters, or of exactly how she would go about dealing with the legal matter of securing the return of the $50,000.00 TGP had spent on the purchase and repairs of the boat which remains at Hindmarsh Island, or about the frequency of her current contact with TGP and the status of their relationship now.
[28]
PRJ impressed me greatly at the internal review hearing. She gave evidence that she has a very close relationship with the applicant who she now sees almost every other day. She showed a good understanding of the roles and responsibilities of an administrator including the requirement to report annually to the Public Trustee and the consequences that could follow if that obligation is breached. She informed the Tribunal that whilst she is currently a full-time carer for her daughter, she previously worked as an office manager and as part of her employment duties she was required to keep financial records. In relation to the boat issue, she stated that she only became aware after her mother and the applicant separated and had finalised their financial affairs. She said that she was immediately concerned about the purchase and she expressed those concerns to TGP. If appointed as his administrator PRJ said that she would speak to a lawyer about whether the contract could be challenged on the grounds that the applicant did not have the mental capacity to enter into an agreement at the time, if that could be supported by medical evidence. If a legal remedy was not available then PRJ said she would pursue a commercial remedy by attempting to negotiate the sale of the boat either in its current state or after improvement with the completion of appropriate repairs. In relation to the substantial cash balance PRJ said that she would seek the assistance from someone qualified such as an accountant or financial advisor to ensure the monies remain invested for the best financial return possible. She also said that she had had experience in the past of managing large investments. I found PRJ to be a very honest and forthright person to the point where she candidly acknowledged that she was declared bankrupt in the early 1990s as a result of a substantial telephone debt she was left with in her name when she and her partner of the time parted ways. She informed the Tribunal that she was discharged from that bankruptcy some four and a half years later.
Even though the applicant's estranged wife and relatives are not strictly parties to these proceedings, the Tribunal allowed each of them to state their views in regards to the current review. I summarise those views as follows:
- OOP informed the Tribunal that she supports the appointment of her daughter as her estranged husband's administrator. She has been caring for TGP in recent times and she has made some positive observations about the recent interactions between the applicant and PRJ.
[29]
Sometimes there is a real advantage in having the Public Trustee as the administrator when it comes to legal affairs like this because they have direct access to legal support from the Crown Solicitor's Office. I know, for example, that you hear about people without capacity entering into contracts. You and I might try to extricate them from that contract but Public Trustee seems to be able to go, for example, to Telstra and say: No, that person didn't have capacity to sign up for a phone for two years. And, the documents disappear. Because they speak with some authority. And, I am wondering whether everyone thinks it might in fact be in your interests to have an administrator that has some public status in order to manage the legal affairs?
[30]
I acknowledge that there are cases where it is clearly appropriate that the Public Trustee be appointed where there are no next of kin or significant others or if those persons don't wish to take on the responsibilities of an administrator or if there is significant and entrenched conflict amongst those persons where to appoint one over another would make an administration order unworkable. There may also be a need for an independent administrator where an estate is large and the administration of it very complex. For example, the estate may consist of several properties (private or commercial) which need to be properly managed or a significant share and investment portfolio. There may also be commercial litigation either ongoing or to be commenced that requires resources that are well beyond the means of the estate. Even in these instances, if a private administrator is being proposed it is incumbent on the Tribunal to conduct a proper enquiry about the suitability of the person being suggested and to give proper consideration to the s 50 criteria before rejecting that person because of the prospect of litigation alone. I accept the submission of Mr Womersley that, in this instance, if PRJ were to be appointed she could (and on the basis of her evidence, would) engage appropriate professional assistance on behalf of the applicant's estate to achieve a satisfactory resolution of the dispute concerning the boat.
Ironically, Mr Lawton on behalf of the Public Trustee, confirmed that since its appointment, nothing more than sending a letter to the vendor of the boat demanding the return of the full purchase has been achieved despite the vendor declining to refund the monies. The letter of demand and the vendor's response are annexed to the affidavit of Mr Becker.[9] I note that Public Trustee did not send the letter of demand until 22 July 2020, that is, some ten months after appointment. In the meantime, mooring fees are continuing to accrue which may still result in a significant debt to the applicant's estate even if the contract for the purchase of the boat is successfully challenged and rescinded. It would appear that the anticipated expertise of the Public Trustee on this occasion has achieved nothing to date in respect of resolving the boat issue which is of considerable concern. I also note from the Interim Client Statement attached to Mr Becker's affidavit, that the involvement of the Public Trustee has also resulted in significant cost to TGP's estate over the last 12 months in capital and income commission charged by the Public Trustee-commission to which they are legitimately entitled. According to that document I have calculated costs of in excess of $2000.00 to date.
[31]
(a) The applicant has an arguable case and that it is just and reasonable in the circumstances to dispense with the requirement in this case that an internal review of the administration order made at first instance on 19 September 2019 be lodged within one month of the making of that order.
[32]
(b) There are no grounds to set aside the original order however, the correct and preferable decision is to vary the order as set out below.
[33]
The Tribunal makes the following orders:
The Tribunal extends the time for the lodgement of the application for internal review to the date on which the application was lodged, namely, 26 February 2020.
Leave is granted to TGP to make an application for internal review, pursuant to s 70(1a)(a) of the SACAT Act.
The administration orders of the Tribunal made on 19 September 2019 (in matter 2019/SC003616) are varied as follows to now read:
PRJ is appointed full administrator of the estate of TGP.
The administrator must provide to the Public Trustee a statement of accounts of the estate by September each year, with an annual report by September to TGP on her administration of the estate showing:
[34]
2.c. Such other particulars relating to the estate as the Tribunal may require.
[35]
TGP shall not make any will or other testamentary provision from the date of this order, except with the consent of and in the presence of the Public Trustee or an authorised officer from the Public Trustee.
This order continues to have effect until further order of the Tribunal.
The Tribunal recommends the order is reviewed on or before Thursday 16 September 2021.
Legislation Cited (2)
Australian Civil and Administrative Tribunal Act 2013
Administration Act 1993
AI Analysis
Outcomeappellant
Disposition:
Extension of time granted for internal review application (to 26 February 2020); leave granted to TGP to make internal review; the administration order of 19 September 2019 is varied: PRJ appointed full administrator with annual accounting/reporting obligations to the Public Trustee and TGP; TGP prohibited from making a will except with consent and in presence of the Public Trustee; order continues until further order; review recommended on or before 16 September 2021.
The matters came before the Tribunal at first instance for full hearing of the applications on 19 September 2019. TGP, KGC and VTM were in attendance together with TGP's wife, OOP, who despite their separation had still been caring for him. PRJ, the daughter of OOP from a separate relationship and the step-daughter of TGP, was also in attendance as well as a representative from the Office of the Public Advocate.
The Tribunal Member hearing the applications made several findings at the conclusion of the hearing including a finding that TGP had a mental incapacity within the definition of s 4 of the Guardianship and Administration Act 1993 (the G & A Act). She also found that neither KGC nor VTM were willing to act in their roles as substitute decision-makers for TGP and that there was a need for an accommodation guardian to be appointed for him along with an administrator to manage all of his legal and financial affairs. The Tribunal Member was satisfied that TGP's step-daughter was a suitable person to appoint as his guardian. However, she was not satisfied that anyone other than the Public Trustee was suitable to act as administrator given what she considered was the complex nature of administering the estate. It would appear largely that this conclusion was drawn because of the need for legal intervention regarding the purchase of the boat but in addition, the fact that TGP had recently received a substantial amount of money of about $140,000.00 for the sale of a unit at Magill.
On 26 February 2020, TGP lodged an application for an internal review of the administration order only, pursuant to s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act). Under that section, the application should have been lodged within one month of the order being made, however, it was not until sometime after then that TGP says he became aware of his right to seek a review. Through his counsel, Mr Womersley, he makes an application for an extension of time in which to bring the current application. I note that the respondent does not oppose an extension being granted under the circumstances.
In the Applicant's Notice of Contentions dated 17 July 2020, he raises two grounds of complaint. Firstly, that the Tribunal erred in appointing a full (as opposed to a limited) administrator and secondly, that the Tribunal should have appointed PRJ as administrator and not the Public Trustee. I will discuss the basis of these grounds in more detail shortly.
The application for internal review proceeded before me for full hearing on 27 August 2020. All of those persons who attended the original hearing on 19 September 2019 were present. TGP's sister, PUQ who did not attend the original hearing, was also in attendance. The applicant was represented by Mr Womersley and the Public Trustee was represented by Mr Lawton of the Crown Solicitor's Office. Prior to the hearing the Tribunal (and TGP through his counsel) was provided with an affidavit from the Team Leader of Personal Estates at Public Trustee with an attached Budget Plan, Portfolio Valuation Report and Interim Client Statement setting out details of the estate that the Public Trustee is currently administering. In addition to supplementing the written submissions contained in the Applicant's Notice of Contentions, Mr Womersley made oral submissions. He also called PRJ to give evidence about her willingness and suitability for appointment. He tendered (with the leave of the Tribunal) a report from Dr Robert Culver dated 13 July 2020 (Exhibit A1) and a written consent from PRJ to be appointed as the applicant's administrator (Exhibit A2). Mr Lawton, whilst remaining neutral on behalf of the Public Trustee, tendered (with the leave of the Tribunal) the affidavit from the Team Leader of the Public Trustee Personal Estates with the attached documents stated above and also attached correspondence passing between the Public Trustee and the vendor of the boat, Mr Nick Louis (Exhibit R1). I also heard the views of each of the family members present and most importantly, the views and wishes of TGP from himself directly. I reserved my decision at the conclusion of the hearing to carefully consider all of the evidence, both oral and documentary. I now hand down my decision together with the reasons for that decision which follow.
Section 70 of the SACAT Act requires the Tribunal on internal review to examine the original decision on the evidence or material that was before the Tribunal at that time (with a discretion to allow the admission of further evidence or material) and to reach the correct or preferable decision having regard to, and giving appropriate weight to the decision at first instance.
Mr Womersley, on behalf of the applicant, sought that the current administration order be rescinded and in its place either a limited order be made appointing PRJ or in the alternative a full order be made appointing PRJ. He further contends that if the Tribunal is not satisfied that either of those remedies are appropriate that it would be appropriate to remit the matter for a review of the order under s 57 of the G & A Act. I note that the order is due for review in any event on or before 18 September 2020.
It is clear from the outset that neither the applicant nor any of his family are contending either that he does not have a mental incapacity or that there is not a need for an administration order. The only issues for the Tribunal on this review are simply whether an administration order should be full or limited and who should be appointed.
In relation to the first contention raised by the applicant, Mr Womersley submits that the Tribunal erred in appointing a full administrator for TGP by relying on evidence from Dr Tan when it was stated specifically in the evidence and the reasons of the Member at first instance that:[1]
- VTM informed the Tribunal that she agrees with the original Order and considers that because of the boat issue no one other than Public Trustee would be an appropriate administrator.
- KGC stated that he does not have a fixed view about who should be appointed. He stated he was pleased that PRJ had taken on the role of accommodation guardian and he recognises that TGP can be difficult to manage as he had experienced particularly in the months leading up to the original hearing when TGP was apparently behaving quite erratically.
- PVA informed the Tribunal that she would be fine with PRJ being appointed as administrator but for the issue concerning the boat. She believes that the Public Trustee has the expertise to deal with that issue.
- PUQ is supportive of the current order remaining in place.
It appears that collectively, none of these persons are objecting to the appointment of PRJ for reasons of her unsuitability on any ground addressed in the s 50 criteria other than a generalised concern about it being beyond her capability to achieve a desirable outcome in respect of the boat issue because of the perceived complexity of the situation.
The Tribunal at first instance was clearly swayed by the commonly held belief that where there is a legal issue to be resolved, that it is desirable to appoint the Public Trustee ahead of a private administrator. The Member stated at the hearing the following during an exchange with the former attorneys:[8]
I have no hesitation in accepting that PRJ is a person who is willing and suitable to act as administrator of the estate of TGP. I find that the learned member fell into an error of approach in not conducting a sufficient enquiry into her suitability and in presuming that the Public Trustee was the only candidate for appointment in this instance, largely it would appear, because of the perceived complexities concerning the boat issue. I consider that the correct and preferable decision in this instance is to appoint PRJ.
TGP was very clear in expressing his wishes in this regard when he informed the Tribunal at the review hearing that "I would prefer PRJ over the Public Trustee". A proper consideration of the s 5 principles dictate her appointment in this instance given that in my view, she clearly satisfies the s 50 criteria. There is an added benefit in appointing her as administrator given that she is TGP's appointed guardian in that she will be fully informed of his personal, financial and legal affairs as effectively required by s 75 of the G & A Act.
In relation to Mr Womersley's application that the current order be set aside and a new order substituted, I am not convinced that this is the correct approach in this instance given that the appointment of an administrator under a full order was the correct and preferable decision. I consider the correct approach would be to vary the administration order made on 19 September 2019 both in respect to the person appointed and the recommended review date given that the order is due for review now.
In all the circumstances I am well satisfied that: