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O'Neill, Nick; Peisah, Carmelle --- "Chapter 8 - Administration (financial management) of the Estates of Incapable People" [2011] SydUPLawBk 10; in O'Neill, Nick; Peisah, Carmelle (eds), "Capacity and the Law" (Sydney University Press, 2011)



Chapter 8 – Administration (financial management) of the estates of incapable people

8. 1. Introduction

Central to the modern guardianship and administration of estates systems in Australia is the power given to guardianship tribunals of the States and the Australian Capital Territory to make orders appointing others to manage the property and affairs of incapable adults. These orders are known as administration orders in all the States, except New South Wales where they are called financial management orders, if they are made by a tribunal. They may have different names if made by courts. In New South Wales they are called financial management orders, in the Australian Capital Territory, management orders and in the Northern Territory they are management orders if made by the Local Court and protection orders if made by the Supreme Court.

However, as is already clear from other chapters of this book, the guardianship and administration of estates systems in the different States and Territories of Australia are essentially the same, but have sufficient differences between them for it to be necessary to deal with each State and Territory’s system separately. Also, as many of the provisions that apply to the making of administration orders have already been discussed in Chapters 6 and 7 dealing with the appointment of guardians and their functions or powers, particularly Chapter 7, there will be appropriate cross references to those chapters in this chapter.

This chapter sets out which bodies have jurisdiction to make administration orders in each State and Territory. It also sets out how applications for those orders are made, by whom, who may be involved in the hearing process and what the criteria are for making such orders. The chapter deals with the processes for reviewing administration orders and the criteria that are relevant to the review process.

In New South Wales the Guardianship Tribunal makes the majority of administration orders, but unlike its counterparts elsewhere in Australia does not give administrators their powers to carry out their functions and responsibilities as administrators. Nor do administrators report to it. Since mid 2009 when the office of Protective Commissioner was abolished, the NSW Trustee has been giving administrators directions as to how they are to administer the estates they have been appointed to manage, and administrators have been accounting to the NSW Trustee. In the other States and the two Territories the relevant tribunal gives the administrators their powers either directly by setting them out in the appointment order or by appointing administrators whose appointment vests them with powers that the tribunal appointing them may be able to limit by conditions and limitation or add to in the appointment order. In Victoria, Queensland and Tasmania the administrators report to the tribunal. In South Australia private administrators report to both the Guardianship Board and the Public Trustee while the Public Trustee reports to the Guardianship Board. In Western Australia and the Australian Capital Territory, private administrators report to the Public Trustee, but there is no provision for the Public Trustee to report to the tribunal that appointed them in either jurisdiction. In the Northern Territory, a guardian appointed by the Local Court as a manager is required, at least once a year, to give the Executive Officer an account of their management of the person's estate.

In this chapter the powers and functions that the NSW Trustee automatically has when appointed as administrator in New South Wales and the powers she may give to private administrators are set out in detail together with the powers that VCAT may give to administrators it appoints in Victoria. The powers, function and requirements imposed on family members and friends appointed as administrators in Queensland are set out in the general section of the chapter referred to in the next paragraph as it is suggested that they apply to administrators appointed in the other States and Territories of Australia. The powers and functions of administrators are not dealt with in the same amount of detail.

There are a number of issues common to each of the eight guardianship and administration of estates systems in the country. Where possible, these issues are drawn out and discussed later in the chapter.

The chapter also discusses the role of health care professionals in the making and reviewing of administration orders.

8. 2. Jurisdiction to appoint administrators

As noted in Chapter 5, one of the key aims of the modern guardianship and administration of estates systems in Australia has been to make the seeking and obtaining of administration orders much cheaper and more accessible to those who need to get the orders than previously. As a result, applications for administration orders in the States and the Australian Capital Territory are made to tribunals. The situation in the Northern Territory is more complicated as will be explained at 8. 8.

In New South Wales the Supreme Court not only retains its statutory as well as its parens patriae jurisdiction, but regularly uses it to make financial management orders. In the Northern Territory, the Supreme Court may make administration orders called “protection orders” in relation to those who meet the criteria set out in the Aged and Infirm Persons’ Property Act 1979 (NT).[1] However, in Victoria, Morris J has doubted that the Supreme Court’s parens patriae jurisdiction “should play any current role in the day to day administration of guardianship [and administration] matters” because of Victoria’s comprehensive laws in relation to those matters.[2] The question of which tribunals and courts are empowered to appoint administrators in each of the States and Territories is discussed in more detail below.

8. 3. New South Wales

8. 3. 1. Who has jurisdiction to appoint financial managers?

In New South Wales the Supreme Court, the Guardianship Tribunal, and the Mental Health Review Tribunal may, and regularly do, make financial management orders.[3] In addition to its statutory jurisdiction under the NSW Trustee and Guardian Act 2009 (NSW), the Supreme Court retains the inherent, parens patriae jurisdiction it has had since it came into existence in 1824. In a 1987 case Powell J of the Supreme Court of New South Wales noted that the jurisdiction of the Court to make orders for the management of property of a person with unsound mind or incapable of managing their affairs may be found in a variety of sources including the inherent jurisdiction of the Court in relation to those of unsound mind and the jurisdiction given to the Court by the Protected Estates Act 1983 (NSW) which has now been superseded by the NSW Trustee and Guardian Act 2009 (NSW).[4] The Guardianship Tribunal’s jurisdiction in relation financial management issues is found in the Guardianship Act 1987 (NSW).[5] In June 2010, the Mental Health Review Tribunal took over, from the magistrates, the jurisdiction to make financial management (administration) orders in relation to those who are going through the process of being admitted to a mental health facility.[6]

In summary, the Guardianship Tribunal, the Supreme Court and the Mental Health Review Tribunal have jurisdiction, arising from different sources, to make administration orders as follows:

1. Guardianship Tribunal, under the Guardianship Act 1987 (NSW),

2. Supreme Court, under the NSW Trustee and Guardian Act 2009 (NSW),

3. Supreme Court, under the parens patriae element of its inherent jurisdiction,

4. Mental Health Review Tribunal conducting mental health inquiries under the Mental Health Act 2007 (NSW),

5. Mental Health Review Tribunal, in relation to those in mental health facilities, under the NSW Trustee and Guardian Act 2009 (NSW).

As the Guardianship Tribunal makes far more financial management orders than the Supreme Court and the Mental Health Review Tribunal, its role will be discussed in more detail than those bodies. The jurisdiction of the Mental Health Review Tribunal both when conducting mental health inquiries and when making financial management orders later during a person’s admission to a mental health facility is dealt with as a separate matter at 8. 3. 8. It should be noted that the Guardianship Tribunal may deal with applications to make financial management orders in relation to patients under the Mental Health Act 2007 (NSW).[7]

8. 3. 2. Who may apply for a financial management order?

8. 3. 2. 1. Guardianship Tribunal

Similar to applications for guardianship orders, applications for financial management orders may be made to the Tribunal by:

1. any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who the application is about, or

2. the NSW Trustee.[8]

8. 3. 2. 2. Supreme Court

Applications to the Supreme Court for management orders are made according to the requirements of the Supreme Court Rules.[9] It is usual for the applicant, the plaintiff, to be a relative; however it is not essential that the applicant be a relative and another person, often described in legal cases and texts as a “stranger” may apply. This will be the case where there are no relatives to bring the application or where it is alleged that family members are mistreating the incapable person physically or misusing their estate.[10]

8. 3. 3. Who may take part in the hearing as a party?

8. 3. 3. 1. Guardianship Tribunal

The automatic parties to an application to the Tribunal for a financial management order are listed below. As parties they may attend the hearing of the application, give evidence and make submissions to the Tribunal as well as call witnesses and cross examine other witnesses.[11] They may also appeal against the decision of the Tribunal.[12] They may seek leave to be represented by a lawyer or agent at the Tribunal hearing.[13] They are:

1. the applicant,

2. the person the application is about,

3. the spouse, if any, of that person, if their relationship with that person is close and continuing,

4. the person, if any, who has care of that person,

5. the person, if any, appointed attorney by the person to whom the application relates under a power of attorney that is in force, and

6. the NSW Trustee.[14]

The Tribunal may join others as parties to the application.[15] Joined parties have the same rights as automatic parties.

8. 3. 3. 2. Supreme Court

The parties to applications to the Supreme Court for management orders are usually confined to the applicant as plaintiff and the person the hearing is about as defendant. The Supreme Court Rules apply.[16]

8. 3. 4. What has to be proved before an order can be made?

8. 3. 4. 1. Guardianship Tribunal

Before the Tribunal may make a financial management order, it must conduct a hearing at which it considers the capability of the person the hearing is about to manage their own affairs and must be satisfied as to the following matters, namely that:

1. the person is not capable of managing their own affairs,

2. there is a need for another person to manage those affairs on the person’s behalf, and

3. it is in the person’s best interests that the order be made.[17]

These criteria, and the criteria applied by the Supreme Court and courts and tribunals around the country are discussed later in this chapter at 8. 11. 5. to 8. 11. 8.

8. 3. 4. 2. Supreme Court

The Supreme Court has a discretion to make an order that a person’s estate be subject to management if it is satisfied that the person is incapable of managing their affairs.[18] The formal process of the Court is:

1. to make a declaration that the person is incapable of managing their financial affairs,

2. to order that their estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW), and

3. by order appoint either a suitable person or the NSW Trustee as manager of the estate of the incapable person.[19]

As already noted, the criteria applied by the Supreme Court before making its declaration and appointment order are discussed later in this chapter at 8. 11. 5 to 8. 11. 8. The procedures of the Court to be followed in relation to an application under section 41of the NSW Trustee and Guardian Act 2009 (NSW) are set out in the Supreme Court Rules and in the Act.[20]

8. 3. 5. Appointing a financial manager

8. 3. 5. 1. Guardianship Tribunal and the Supreme Court

When either the Tribunal or the Court makes a financial management order, it must either:

1. appoint a suitable person as (private) manager of the estate, or

2. commit the management of that estate to the NSW Trustee.[21]

In the Supreme Court, but not the Guardianship Tribunal, unless it is proposed that the estate of the person the hearing is about is to be committed to the NSW Trustee for management or to be managed by the applicant, the proposed manager must consent, in the prescribed form, to being appointed the manager. Furthermore, unless the proposed manager is the NSW Trustee or a trustee company, affidavits must be given by at least two persons giving their opinion of the proposed person’s character, their fitness to act and details of their business experience.[22]

In the leading New South Wales Court of Appeal case on the matters to be considered when deciding who to appoint as financial manager, Kirby P noted that the legislation provided first that a “suitable person” should be appointed as manager of the estate of a person the subject of a financial management order and only secondly that the management of that estate should be committed to the NSW Trustee.[23] He described this as a sensible hierarchy of choices pointing out that:

In many estates of modest size it will be appropriate where there is no risk of conflict of interest and duty, and where a relationship of love or affection is established, to reflect in the statutory appointment the form of management which for millennia, in primitive societies as in civilised communities, has been followed when a family member is found to be incapable of managing his or her affairs. It is normal then for the family to step in.[24]

Despite this limiting view of who should be appointed manager, he insisted that the discretion to appoint and remove a financial manager was a broad one that should not be confined “by rigid rules” or even ‘guidelines’ expressed in general terms. He then went on to provide a checklist of considerations to be borne in mind when exercising the discretion as to who to appoint as manager, with the “abiding rule” being the achievement of the best interests of the person the hearing is about.[25] A summary of the checklist is set out below.[26]

He also noted that, in earlier times and before the advent of the modern guardianship and administration system, the courts conserved their intervention to cases where there was no family or where no family member was willing to act or where for special reasons of incompetence or conflict of interest it was unsuitable to appoint a family member. He then pointed out that there was a danger in the administration of the legislation of overlooking not only that this as the natural order of things but also that it was the way parliament had reflected the matter in the legislation by referring to the appointment of a suitable person ahead of committing the management of the estate to the NSW Trustee.[27]

It should be noted however, that the Tribunal deals with a significant number of cases in which it is precisely because there is no family or no family willing to take on the role of financial manager that the Tribunal commits the management of the estate to the NSW Trustee. At other times, and often at the request of or with the support of family members, the Tribunal appoints the NSW Trustee in order to have a body outside the family managing the financial affairs of the incapable person. At other times the appointment is made for reasons of incompetence or conflict of interest or intra-family conflict which makes it not in the incapable person’s best interests to appoint a family member.

Nevertheless, in a 2006 case the Appeal Panel of the Administrative Appeals Tribunal stated that “if the Guardianship Tribunal did not look first to the possibility of appointing a suitable person to be the manager of the protected person’s estate or considered any potential conflict of interest to be an "absolute bar" to [a family member’s] appointment as a manager, then it will have made an error of law”.[28] While the Appeal Panel did not find an error of law on the facts of the case, its statement of the law reflects a rigidity of approach that is inconsistent with the broad discretion to be exercised in appointing financial managers and the abiding rule of achieving the best interests of the incapable person.

While care has to be taken to ensure that a financial manager will abide by the limits of the authorities and directions as to the management of the estates they are appointed to manage, and will account annually to the NSW Trustee on the management of those estates, the Guardianship Tribunal occasionally appoints as financial managers persons who are not resident in New South Wales if they are otherwise suitable for appointment.

Where a private person is appointed as manager, they may not begin to manage the estate until the NSW Trustee has authorised them to exercise functions relating to the estate or, directions of the Supreme Court relevant to the management of the estate have been obtained. Nevertheless, a manager may take such action as may be necessary for the protection of the estate, including action specified by the Tribunal, pending the directions of the Court or authorisation by the NSW Trustee.[29]

8. 3. 6. Joint/several/alternate financial managers

8. 3. 6. 1. Guardianship Tribunal and Supreme Court

The Tribunal may, and sometimes does, appoint more than one financial manager. When the Tribunal does this, those appointed must act jointly and all agree with the decisions made during the management of the estate. However, as Powell J of the New South Wales Supreme Court pointed out in a 1982 case, it is the duty of the appointing authority to keep the administration of an estate simple and inexpensive, particularly if it is comparatively small and uncomplicated. Hence the appointment of multiple managers is to be avoided, especially if there is antipathy and mistrust between them.[30]

Because it is appropriate for managers to have all the powers of a manager and for all managers to be able to exercise all their powers over all the estate, or at least as much of the estate that is under management, it is not sensible to appoint one manager with some powers over some of the estate and another with different powers. Nor is it sensible to appoint one manager for part of the estate and another manager for another part.

None of the Supreme Court, Guardianship Tribunal, Magistrates conducting mental health inquiries and the Mental Health Review Tribunal has statutory power to appoint alternate financial managers. Consequently, if the financial manager dies or becomes incapable, an application has to be made for another manager to be appointed.

8. 3. 7. Types of financial management orders

8. 3. 7. 1. Plenary orders

In New South Wales all financial management orders made by the Supreme Court and most such orders made by the Guardianship Tribunal are plenary orders covering all of a person’s estate.

8. 3. 7. 2. Orders with part of the estate excluded

The Guardianship Tribunal may exclude a specified part of a person’s estate from a financial management order. This is not the same as deciding what part of the person’s estate is placed under management. In New South Wales a financial management order applies to all of the person’s property and affairs unless the Tribunal specifically excludes part of the person’s estate from management and specifies, with precision, that part of the estate that is excluded from management.

8. 3. 7. 2. Interim orders

The Guardianship Tribunal may make interim financial management orders for specified periods, not exceeding 6 months, pending the Tribunal’s further consideration of the capability of the person about whom the order is made to manage their own affairs.[31] This power is limited intentionally. It is intended to be used where there is an urgent need to make the order in a person’s best interests, but where there has been insufficient time to obtain a satisfactory level of evidence, through medical examinations or other sources of information, to show that the person lacks capacity to manage their own financial affairs or where there is some doubt about the person’s capacity to manage those affairs and time is needed to obtain that evidence.

The Tribunal may not make an interim financial management order unless it has before it an evidential basis for believing that the person may be incapable of managing their own financial affairs and that they need an order. These orders are not to be used as short term financial management orders if the evidence of the person’s incapacity is available. In that case, the proper course is to apply the tests for making a final order, and, if the order is made, to provide an early date for its review. It is not legitimate to make an interim financial management order where a short term order appears to be needed in the knowledge that such an order will be taken to have been revoked if the period for which it is made expires and no further interim order or no final order has been made.[32]

While the wording of the legislative provision empowering the Tribunal to make interim financial management orders does not preclude the making of more than one such order either through clear words or necessary implication, a second interim order following immediately upon a first order should not be made unless there are legitimate difficulties in obtaining the evidence of the person’s incapacity and the evidence is likely to become available if the further order is made.

While the legislation appears to limit the circumstances in which such an order can be sought, interim financial management orders can be sought:

1. during an application for either a guardianship or a financial management order,[33]

2. for a person who is already under guardianship, whether just placed under guardianship or having been under guardianship for some time,[34]

3. during the review of an appointment of an enduring guardian,[35] or

4. during the review of an appointment of an enduring power of attorney.[36]

Where an interim order is made, the usual practice is to adjourn the application for a full financial management order or other relevant application so that the required evidence can be gathered and to bring the matter back on for hearing before the time provided for in the interim order has expired. Interim financial management orders are taken to be revoked when the time for their expiry is reached.[37]

8. 3. 7. 3. Supreme Court

While the Supreme Court has no legislative power to make interim financial management orders, it has inherent jurisdiction to make interim orders to protect the estates of, as noted by Lord Eldon in Ridgeway v Darwin, “all persons who were ‘unable to act with any proper and provident management’ who were ‘liable to be robbed by anyone’ whether they were, strictly speaking, insane or not because the mischief called for as much protection as actual insanity”.[38] As Young J pointed out as he proceeded to appoint an interim receiver and manager on an urgent summons that the judge proceeded to hear without it being served on the person the hearing was about, the requirement was that the applicant:

[M]ust then show that there is a strongly arguable case that the defendant is a person who falls within the class specified by Lord Eldon in Ridgeway v Darwin, at least in the short term. The evidence need not go so far as to show that two medical practitioners or a medical practitioner and a psychologist consider that the defendant is incapable of managing his or her affairs, but the evidence must at least show a strongly arguable case that immediate protection is needed to preserve the defendant's property.[39]

8. 3. 8. The jurisdiction of the Mental Health Review Tribunal to make financial management orders

8. 3. 8. 1. Mental health inquiries conducted by the Mental Health Review Tribunal

When a person is taken to a mental hospital or other mental health facility, they must be examined as soon as possible, and in any event within 12 hours after they arrive at the hospital or other facility. The same requirements for examination apply if the person has gone to the mental hospital or other mental health facility as a voluntary patient and it is subsequently believed that they should be detained there for treatment on an involuntary basis. The examination must be carried out either by the medical superintendent or a medical officer at the hospital. Unless the examining doctor certifies that they are a mentally ill or a mentally disordered person, the person must not be detained after the examination.[40] If the person is certified to be either a mentally ill or mentally disordered person, they must be examined by a second doctor and that doctor must be a psychiatrist if the first examining doctor wasn’t. There are further provisions about medical examinations and if the medical opinion is that the person is either a mentally ill or mentally disordered person, then they must be brought before the Mental Health Review Tribunal for a mental health inquiry as soon as practicable.[41]

It is the obligation of the medical officer who conducts the examination or causes other doctors to conduct the examination to bring the person before the Mental Health Review Tribunal for a mental health inquiry. The medical officer must give the person written notice of the inquiry and that notice must advise that, if the Mental Health Review Tribunal considers that the person should be detained, the Tribunal will also have to consider whether or not the person is able to manage their own affairs.[42] This notice must be given as soon as the medical officer is aware that the person is one for whom an inquiry is required to be held.[43]

The mental health inquiry must be arranged by either the medical superintendent of mental hospital or other mental health facility or a doctor attached to that hospital or other facility and authorised by the medical superintendent. The parties to such an inquiry are:

1. the applicant doctor,

2. the person the inquiry is about, and

3. their primary carer, if they can be served.[44]

The doctor arranging the mental health inquiry must advise the person that all reasonably practicable steps will be taken to give notice of the inquiry to the person’s primary carer and then take those steps.[45] The primary carer of a person is:

1. their guardian,

2. their parent if the person is a child, unless the child has made a nomination referred to in 3,

3. if the person is over the age of 14 years and not under guardianship, the person nominated by them as their primary carer,

4. if 1, 2 or 3 do not apply then,

(i) the person’s spouse of the, if any, if the relationship between the person and their spouse is close and continuing,

(ii) any person who is primarily responsible for providing support or care to the person (other than wholly or substantially on a commercial basis), or

(iii) a close friend or relative of the person.[46]

If, after holding the mental health inquiry, the Mental Health Review Tribunal directs that the person must be detained in a mental hospital or other mental health facility as an involuntary patient, the Tribunal must deal with the question of the person’s capability to manage their own affairs under the NSW Trustee and Guardian Act 2009 (NSW).[47] That matter is dealt with at 8. 3. 8. 2 below.

8. 3. 8. 2. Mental Health Review Tribunal

There are various situations in which the Mental Health Review Tribunal has jurisdiction to make financial management orders.

The first is where it is conducting a mental health inquiry, as discussed in 8. 3. 2. 1 above.[48] If, after conducting the inquiry, the Tribunal orders that the person the subject of the inquiry is to be detained in a mental health facility, the Tribunal must consider whether or not the person is capable of managing their own (financial) affairs and if satisfied that the person is not capable of managing their own affairs, must order that their estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and commit the management of the person’s estate to the NSW Trustee.[49] The parties to such a hearing are:

1. the applicant doctor,

2. the person the inquiry is about, and

3. their primary carer if they can be served.

The second is where the Tribunal is reviewing a person’s case under Part 5 of the Mental Health (Forensic Provisions) Act 1990 (NSW).[50] Again if, after conducting the review, the Tribunal orders that the person the subject of the inquiry is to be detained in a mental health facility, the Tribunal must consider whether or not the person is capable of managing their own (financial) affairs and if satisfied that the person is not capable of managing their own affairs, must order that their estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and commit the management of the person’s estate to the NSW Trustee.[51]

The third situation is where a person who, in the opinion of the Tribunal has a sufficient interest in the matter, makes an application to the Tribunal for a financial management order to be made in relation to a patient in a mental health facility.[52] Whether or not it has previously considered the question, the Tribunal may consider a person’s capability to manage their own affairs. If the Tribunal is satisfied that the person not capable, it must order that the person’s estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and commit the management of the person’s estate to the NSW Trustee.[53] Where such an application is made, the parties to the hearing would be:

1. the applicant, and

2. the person the hearing is about.

It is suggested that the language of sections 44 and 45 of the NSW Trustee and Guardian Act 2009 (NSW) makes it mandatory for the Tribunal to consider the capacity to manage their (financial) affairs of a person it has ordered to be detained in a mental health facility immediately after it has made the detention order in relation to them, and if the Tribunal is satisfied that the person is not capable of managing their (financial) affairs, it must make a financial management order in relation to them. There does not appear to be any discretion in the Tribunal not to make the order if it finds the patient not capable on the grounds that the patient has put other arrangements in place, like having appointed an attorney under an enduring power of attorney to handle their financial affairs when they, the patient with a mental illness, are unwell and need someone to manage their financial affairs for that time only. However, it may make sense in most cases in which a patient is detained in a mental health facility to have the Public Trustee managing their financial affairs as they, the patients, would usually, because of the state of their illness or the physical reality of their detention, be unable to manage their affairs themselves.

In relation to a subsequent application in relation to a patient, the language of section 46 indicates that the Tribunal has a discretion as to whether or not it needs to consider the person’s capacity to manage their (financial) affairs. However, if the Tribunal does consider the application, and is satisfied that the person is not capable of managing their affairs, the section appears to require the Tribunal to make an order that the estate of the person be subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and commit the management of the person’s estate to the NSW Trustee even though there may have been no change in the person’s capability to manage their own affairs since that capability was last considered by the Tribunal or the Supreme Court.[54]

There appears to be a conflict between the mandatory requirements of sections 44, 45 and 46 of the NSW Trustee and Guardian Act 2009 (NSW) and section 39 of that Act which sets out applicable general principles. These principles apply to the Mental Health Review Tribunal and require it, when dealing with a patient’s capacity to manage their (financial) affairs, to:

1. Give paramount consideration to the patient’s welfare and interests;

2. Restrict the patient’s freedom of decision and freedom of action as little as possible;

3. Encourage patients, as far as possible, to live a normal life in the community;

4. Take the views of the patient into consideration;

5. Recognise the importance of preserving family relationships and cultural and linguistic environments;

6. Encourage the patient, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs; but also

7. Protect the patient from abuse, exploitation or neglect.

These principles suggest that the Tribunal should exercise a discretion not to make a financial management order in some situations where the patient was incapable of managing their financial affairs. For example, where to make an order would so retard the patient’s recovery because of their agitation about the order that it would be contrary to the particular patient’s welfare and interests, as well as their views, to make the order. Another example of where it would be consistent with the principles not to make a financial management order is where the person has already appointed an attorney under an enduring power of attorney to handle their financial affairs when they are unwell and need someone to manage their financial affairs for the period of their unwellness only.

8. 3. 8. 3. Interim financial management orders made by the Mental Health Review Tribunal

The Mental Health Review Tribunal, when exercising any of its financial management jurisdictions, may, if it appears to it either necessary or convenient to do so, make an interim financial management order appointing the NSW Trustee the manager of a person’s estate for a period of up to six months pending further consideration of that person’s capability to manage their own affairs.[55] An interim financial management order will expire six months after it is made if it is not reviewed within that time. If a review is begun within the six month period, the interim order will expire at the end of the review.[56] However, the Tribunal may, after further consideration of the patient’s capacity to manage their (financial) affairs, be satisfied that do not have that capacity and make a financial management order or, not being so satisfied, revoke the interim financial management order and end the proceedings.

8. 3. 9. Powers and functions of NSW Trustee as financial manager

Most financial management orders made in New South Wales by the Guardianship Tribunal and the Supreme Court and all those made by the Mental Health Review Tribunal involve committing the management of the estate to the NSW Trustee (appointing the NSW Trustee as financial manager).

The NSW Trustee has and may exercise all the functions the person would have had and could have exercised when or if they had capacity.[57] In addition, the NSW Trustee may exercise all functions that are necessary for the management and care of the estate as well as any other functions given to her by the Supreme Court or the Guardianship Tribunal.[58] The Tribunal’s power to give extra functions is, for reasons that are unclear, limited to situations in which the person whose affairs were being managed was also under guardianship.[59] The NSW Trustee may also execute and sign any document on behalf of the incapable person while managing their estate.[60]

The NSW Trustee and Guardian Act 2009 (NSW) sets out the specific purposes for which the NSW Trustee may spend money from an estate under management, namely:

1. the payment of the debts and engagements of the person and the repayment of expenses chargeable to their estate,

2. the person’s funeral expenses, but only after their death,

3. the maintenance of the spouse of the person or any child, parent or other person dependent upon the person, or for whose maintenance the person provided when not a managed person or would be expected to provide,

4. the payment of all proper costs incurred in or about the care, protection, recovery, sale, mortgage, leasing, disposal and management of the estate of the person,

5. the preservation and improvement of the estate of the person,

6. the taking up of rights to issues of new shares, or options for new shares, to which the person may become entitled by virtue of any shareholdings, and

7. the maintenance (including future maintenance), clothing, medicine and care, past and present, of the person.[61]

Without restricting any of her other functions, the NSW Trustee may exercise the following functions relating to the property of a person when managing that person’s estate:

1. receive money, rent, income and profit of real and personal property,

2. grant leases of property for a term not exceeding 10 years and give to a lessee an option of renewal if the aggregate duration of the lease and any such renewal does not exceed 10 years,

3. enter into a share-farming agreement for a period not exceeding 3 years,

4. surrender a lease and accept a new lease,

5. accept a surrender of a lease and grant a new lease,

6. execute a power of leasing vested in a person having a limited estate only in the property over which the power extends,

7. buy, sell, realise and mortgage or charge (with or without a power of sale) real and personal property[62],

8. pay interest secured by a mortgage or charge out of capital, if income is insufficient,

9. postpone the sale, calling in and conversion of any property that the NSW Trustee has a duty to sell, other than property that is of a wasting, speculative or reversionary nature,

10. settle, adjust and compromise a demand made by or against the estate,

11. exchange or join in a partition of property and give or receive money for equality of exchange or partition,

12. carry on a business, so far as may appear desirable for the purpose of more advantageously disposing of, or winding up, the business or preserving the business of a managed person until the managed person is able to carry it on,

13. agree to an alteration of the conditions of a partnership into which a managed person has entered, for the purpose of more advantageously disposing of an interest in the partnership or terminating liability,

14. carry out a contract entered into before the appointment of the NSW Trustee or enter into an agreement terminating the liability,

15. surrender, assign or otherwise dispose of, with or without consideration, onerous property,

16. exercise a power, or give a consent required for the exercise of a power, where the power is vested in a managed person for the benefit of the person or the power of consent is in the nature of a beneficial interest in the person,

17. sequestrate the estate under the bankruptcy laws,

18. take proceedings to cause a company to be placed in liquidation and vote or act by proxy at meetings of creditors or shareholders, whether the company is in liquidation or not,

19. bring and defend actions, suits and other proceedings,

20. without limiting paragraph 19, take criminal proceedings touching or concerning property,

21. pay rates, taxes, assessments, insurance premiums, debts, obligations, costs and expenses and other outgoings,

22. without limiting paragraph 21, pay the reasonable costs of the erection of a memorial or a tombstone over the grave of a deceased person or, if a deceased person is cremated, the reasonable costs of a memorial or any arrangements for the preservation of the ashes of the deceased person,

23. repair and insure against fire or accident any property, and

24. bring land under the Real Property Act 1900 (NSW).[63]

8. 3. 10. The supervisory role of the Supreme Court in the management of estates

Even though the evolutionary separation of the Supreme Court from the management of estates placed under management by itself, the Guardianship Tribunal or the Mental Health Review Tribunal continues, the Court still retains a supervisory role which it may exercise from time to time.[64] In particular, the Court may give the NSW Trustee directions about how she should exercise her functions in relation to an estate she is managing under a financial management order. While the NSW Trustee may apply for such directions from time to time in difficult matters, the person whose estate is under management or a relative, friend or debtor of that person may also apply to the Court. Also the Court may let any other person it considers has sufficient interest in the matter apply for such directions.[65]

Nevertheless, private managers, whether appointed by the Supreme Court or the Guardianship Tribunal, except in exceptional circumstances, receive their detailed authorities to act in orders from the NSW Trustee to whom they have to account annually.

8. 3. 11. The orders the NSW Trustee may give to private financial managers

The NSW Trustee gives orders to private financial managers as to the administration and management of the estates they have been made responsible for by either the Guardianship Tribunal or the Supreme Court. Those orders cover the authorities and directions that the NSW Trustee gives to private financial managers, but may also cover enforcing the exercise of their functions.[66]

The NSW Trustee may make both general and particular orders. She may make the orders that appear necessary:

1. for the payment of the debts and engagements of, or otherwise for the benefit of the person whose affairs a private financial manager is managing,

2. for the maintenance and benefit of the family of that person, or

3. otherwise as the Public Trustee thinks necessary or desirable for the care and management of the estate of the incapable person.[67]

The NSW Trustee may also make particular orders for particular purposes. She may make orders relating to the mortgaging or otherwise charging of the real property or the sale, charging or otherwise dealing with or disposing of, in the most expedient way, the real and personal property of a person whose affairs are managed by a private financial manager for the purpose of achieving one or more of the following outcomes:

1. payment of the person’s debts or engagements,

2. discharge of any encumbrance on property of the person,

3. payment of any debt or expenditure incurred for the maintenance (including future maintenance), or otherwise for the benefit, of the person,

4. payment of the costs of any proceeding under this Act or of any sale or other disposition made under this Act, and

5. payment of such other sum or sums to such person or persons as the NSW Trustee thinks fit.[68]

In addition the NSW Trustee may make orders authorising or directing the application of money that may comprise either the whole or a part of an estate under private management for any of the following purposes:

1. the preservation and improvement of the person’s estate,

2. the taking up of rights to issues of new shares, or options for new shares, to which the person may become entitled by virtue of any shareholdings, and

3. the investment of money not required for the time being for any of the other purposes specified in 1 and 2 in such manner as the NSW Trustee thinks fit.[69]

Further, the NSW Trustee may make orders authorising and directing private financial managers as follows:

1. to exercise some or all of the functions as to property that the NSW Trustee may exercise and which are set out above,

2. a manager to have all, or any specified, functions necessary and incidental to the management and care of an estate,

3. to have and exercise such other functions as the NSW Trustee may direct.

The NSW Trustee may also give a manager such directions relating to the orders set out in 1, 2 and 3 as she thinks fit.[70]

These 2009 provisions continue the practice developed in New South Wales that where the Guardianship Tribunal or the Supreme Court appoints a private person as financial manager for an incapable person, but, unlike in some other States and Territories, it is the NSW Trustee, rather than the Tribunal or Court making the appointment, that gives the financial manager their functions. Indeed, the Guardianship Act 1987 (NSW) specifically states that the making of a financial management order by the Guardianship Tribunal does not authorise the person appointed as manager to interfere in any way with the estate concerned until the NSW Trustee has given the manager an order setting out the functions that manager may exercise.[71] While this is the normal procedure, it is possible for the Supreme Court, on request, to give directions relevant to the management of the estate.[72]

Also since 2009, the Guardianship Tribunal has been able to include in its financial management orders appointing the NSW Trustee as financial manager, functions for the NSW Trustee to exercise as manager.[73] Orders made by the NSW Trustee in relation to private financial managers are subject to any relevant order the Guardianship Tribunal may have made.[74] However, the Guardianship Tribunal may make such orders only when the person the financial management order is about is also under guardianship.

Nevertheless, the person appointed as manager may take such action as may be necessary for the protection of the estate (including action specified by the Guardianship Tribunal) pending the NSW Trustee’s orders (or directions of the Court).[75]

Private financial managers provide the accounts of the estates they are managing to the NSW Trustee and answer to the NSW Trustee in relation to their management of an estate.

8. 3. 12. Effect of a financial management order

The effect of a financial management order made by the Guardianship Tribunal, the Supreme Court of the Mental Health Review Tribunal is that the power of a person whose financial affairs are placed under management (a managed person) to deal with their estate is suspended in relation to so much of that estate as is placed under management of another person or committed to the management of the NSW Trustee.[76]

Nevertheless, the private financial manager or the NSW Trustee when appointed to manage the person’s estate may give a written authorisation to the person whose affairs are under management to deal with so much of their estate as the manager considers appropriate and specifies in the written authority.[77] This authorisation may be given at any time and, similarly, may be withdrawn, wholly or in part, at any time.[78] However, if the authorisation is to be given or taken away by a private financial manager, it cannot be given or withdrawn without the approval of the NSW Trustee.[79]

This statutory provision reflects the decision of the majority in the New South Wales Court of Appeal case David by her Tutor the Protective Commissioner v David that the effect of a decision by the Guardianship Tribunal to make a financial management order was to suspend, during the currency of the order, the right of the person the order was about to deal with their property as well as to give effect to the issues raised by the dissenting judge, Kirby P, about retention of rights and a least restrictive alternative approach.[80] The decision in the David Case applies also to an order of this kind made by the Supreme Court if it were to exercise its residual parens patriae jurisdiction.

8. 3. 13. Reviews of financial management orders

8. 3. 13. 1. Requested and “own motion” reviews

Who may request a review?

The Guardianship Tribunal may conduct two kinds of review. These are:

1. a review of the whole order, and

2. a review of the appointment of the manager.[81]

In relation to the first, broad review of an order, this may be initiated in a number of ways:

1. the Tribunal may order that a financial management order be reviewed within a specified time in which case, the Tribunal must begin the review within the time specified in the order,[82]

2. in any financial management that is either confirmed or varied as a result of a review, the Tribunal may order that that order be reviewed within a specified time in which case the requirements set out in 1 apply,[83]

3. by the Tribunal, at any time on its own motion,[84] and

4. on an application for revocation or variation of an order.[85]

A review of the appointment of the manager may be initiated by:

1. the Tribunal on its own motion,

2. a request from the NSW Trustee, or

3. a request from any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.[86]

While the legislation does not empower the person the order was about to request this kind of review, the Tribunal would be likely to initiate the review of its own motion if such a person was seeking a review, unless the Tribunal considered that the review would be futile in that there would be no chance that it would result in it changing the manager or changing the order in any of the ways open to the Tribunal on such a review.

Supreme Court

The Supreme Court does not review the financial management orders it makes, but it may, on application by the person the order is about, revoke its order. [87] However, it should be noted that Porter and Robinson suggest that once made management orders remain in place until the death of the person the order is about unless the Court orders that the person has become capable of managing their estate.[88] Nevertheless, the Court has the inherent power to replace a manager it has appointed if to do so was in the best interests of the person whose affairs were under management.[89] These matters are dealt with below at 8. 3. 13. 2 and 8. 3. 13. 3.

A form of “own motion” review by the NSW Trustee

When the Guardianship Tribunal was initially established, it could not make a financial management order in relation to a person’s estate unless it also had before it an application to make a guardianship order in relation to that person. A vestige of that time remains in the legislation so that where a person has been the subject of a guardianship order and a financial management order committing the estate of the person to the NSW Trustee and the guardianship order is revoked or lapses, the NSW Trustee has a discretion to continue to manage the property and affairs of that person until either the financial management order is revoked, or the NSW Trustee is satisfied that the person is capable of managing their own affairs.[90] In practice, when the Guardianship Tribunal is reviewing the guardianship order in relation to a person whose estate is being managed by the NSW Trustee, the NSW Trustee asks the Tribunal, should it revoke the guardianship order, to express its views on whether the financial management order should continue or not. The NSW Trustee usually acts on that advice, after considering it.

Also, even if the NSW Trustee is not satisfied that the person is capable of managing their affairs, she must nevertheless do all things that are reasonably practicable to inform the person that they may apply to the Guardianship Tribunal to revoke the financial management order in relation to them. The NSW Trustee is under the same obligation to a person who has ceased to be a patient in a mental health facility to advise them that they can make the same application to the Mental Health Review Tribunal if it made the financial management order in relation to them.[91]

8. 3. 13. 2. Parties to reviews of financial management orders

Guardianship Tribunal

The following are parties to reviews by the Guardianship Tribunal of financial management orders or the appointment of a manager of an estate:

1. the person who requested the review,

2. the person the order is about,

3. the spouse of that person, if the relationship between them is close and continuing,

4. the person, if any, who has care of the person the order is about,

5. the manager of the estate,

6. the NSW Trustee, and any person whom the Tribunal has joined as a party to the review.[92]

Supreme Court

Only the person the order is about may make an application to the Supreme Court under the NSW Trustee and Guardian Act 2009 (NSW) for the order to be revoked.[93] Applications to change managers can be made by the person or others.[94]

8. 3. 13. 3. Powers of the Tribunal to review orders and the Court to deal with applications to revoke orders

Guardianship Tribunal

The Tribunal has, in effect, the same powers whether it is dealing with what is, from the beginning a review of the whole financial management order or a review of the appointment of the manager. However, it may review only those orders that it has made.

After a review of the whole order, the Tribunal has three options; it must vary, revoke or confirm the order. However, it may revoke the financial management order only if it:

1. is satisfied that the person the order is about is capable of managing their affairs,[95] or

2. considers that it is in the best interests of the person the order is about that the order be revoked (even though the Tribunal is not satisfied that the person is capable of managing their affairs).[96]

In addition, when reviewing its appointment of a manager, the Tribunal may also review the financial management order under which the manager was appointed, and may take any of the actions set out in the last paragraph.[97]

If the Tribunal limits its review to reviewing its appointment of the manager, then, after the review, the Tribunal may revoke or confirm that appointment. However, it may revoke the appointment under review only if:

1. the manager themselves seeks the revocation, and

2. the Tribunal is satisfied that it is in the best interests of the person the order is about that the appointment be revoked.[98]

Those who seek to have the manager changed do not have to prove that the manager acted incompetently, improperly or unlawfully. They must show some reason why the manager should be replaced. The Tribunal has a broad discretion as to whether or not to replace the manager, but must be satisfied that it is in the best interests of the person whose estate is under management that the manager should be replaced before doing so. However, once so satisfied, it is “duty bound” to replace the manger.[99]

If the outcome of the review is that the financial management order is revoked, then the appointment of the manger also comes to an end. However, if the outcome of the review is that the appointment of the manager is revoked, the Tribunal is required to appoint another person as manager of the estate under management to replace the manager whose appointment has been revoked.[100] The person whose appointment as the manager of an estate is revoked must pay over or hand over the estate to the new manager.[101]

In a 2002 case, the Tribunal reviewed the appointment of two daughters of a woman with dementia, revoked their appointment and appointed the then Protective Commissioner (since replaced by the NSW Trustee) to manage their mother’s estate. They had failed to provide for their mother’s needs and had made gifts of $10,000 dollars each to themselves. Their view was that they were beneficiaries of their mother’s estate and she had no use for the money in her estate.[102]

For a case in which the Tribunal reviewed a financial management order on the basis of evidence that the person the subject of the order was capable of managing her affairs see, NCS [2009] NSWGT 7.

Supreme Court

When dealing with an application to revoke a financial management order, if the Court is satisfied that the person the order is about is capable of managing their affairs, it may:

1. revoke any declaration made that the person is incapable of managing their affairs,

2. revoke the order that the estate of the person be subject to management, and

3. make such orders as appear to it necessary to give effect to the revocation of the order, including the release of the estate of the person from the control of the Court, the NSW Trustee or a manager and the discharge of any manager.[103]

As already noted at 8. 3. 13. 1 above, because the Supreme Court has the power to appoint a manager, it also has the power to remove and replace a manager.[104] Its discretion, and that of the Guardianship Tribunal, to appoint and remove a financial manager is a broad one, but Kirby P has provided a checklist of considerations to be borne in mind when exercising the discretion as to who to appoint as manager or whether to revoke the appointment of a manager and appoint another person as manager. He also noted that the “abiding rule” was the achievement of the best interests of the person the hearing was about.[105] A summary of the checklist is set out below.[106]

8. 3. 14. Dealing with the estate after revocation of the financial management order

If the Guardianship Tribunal revokes a financial management order (or varies it so as to exclude from the order a specified part of the estate previously subject to it), the person appointed as manager of the estate is to pay over or hand over the estate (or the relevant part of it):

1. to the owner of the estate, or

2. to a person designated by the Tribunal to receive the estate on behalf of the owner.

A person who pays over or hands over any part of an estate as a result of decisions made by the Tribunal does not incur any liability for doing so. Also, the paying over or handing over of any part of an estate not operate to change the ownership of the estate.[107] However, it would create a form of constructive trust with the person receiving the estate being the trustee and the owner of the estate being the beneficiary.

The Guardianship Tribunal has to be very careful when designating who is to receive the estate. If the financial management order is revoked because the person the order was about has regained capacity to manage their own affairs, the Tribunal should designate them as the recipients of their own estate. The Tribunal would have to have very good reasons for designating a person other than the owner of the estate to receive the estate if its owner had capacity.

The question of who to designate to receive the estate becomes more difficult for the Tribunal if it revokes the financial management order on the ground that it is in the best interests of the person the order is about to do so even though the Tribunal is not satisfied that the person is capable of managing their affairs. It may be able to designate an attorney under an enduring power of attorney that may have been revived by the revocation of the order. Alternatively, it may be able to designate someone else who has demonstrated to the Tribunal that they have a relationship with the owner of the estate and have a set of arrangements in place that will protect the estate of the still incapable person. An example would be a spouse or other long term life partner who had a long established joint bank account with the person.

8. 4. Queensland

8. 4. 1. Who has jurisdiction to appoint administrators?

As noted in Chapter 10, in Queensland the Queensland Civil and Administrative Tribunal (QCAT) has exclusive jurisdiction to appoint administrators for “adults with impaired capacity for (financial) matters”.[108] While the Guardianship and Administration Act 2000 (Qld) specifically states that its provisions do not affect the Supreme Court of Queensland’s inherent jurisdiction, including its parens patriae jurisdiction, that general provision does not prevail over the specific provision in the same Act giving exclusive jurisdiction to appoint guardians to QCAT.[109] Nevertheless, the Supreme Court retains its specific jurisdiction under the Public Trustee Act 1978 (Qld) to make protection orders appointing the Public Trustee to manage all or those parts of the estate of a person under the age of 18 years as the Court directs.[110]

Also, the Court may transfer proceedings before it that are within QCAT’s jurisdiction to QCAT. Also, the Court has acknowledged that QCAT is a specialist tribunal set up to determine issues relating to intellectually disabled adults.[111]

8. 4. 2. Who may apply for an administration order?

8. 4. 3. Who may take part in the hearing as a party?

These matters are the same as for an application for the appointment of a guardian.[112] The application must also include the proposed administrator’s written agreement to being appointed.[113] Also, unless QCAT orders otherwise, a person who agrees to be appointed as administrator must give a

management plan to QCAT, or its appropriately qualified nominee, for approval.[114]

8. 4. 4. What has to be proved before an order can be made?

The same matters have to be proved for the appointment of an administrator as for the appointment of a guardian.[115] In particular, before QCAT may, by making an administration order, appoint an administrator for the person the hearing is about, it must be satisfied that:

1. the person the application is about has impaired capacity for the (financial) matter,

2. there is a need for a decision in relation to that matter or the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to their health, welfare or property, and

3. without the appointment of an administrator;

(a) the person’s needs will not be adequately met, or

(b) the person’s interests will not be adequately protected.[116]

A person has impaired capacity for a (financial) matter if they are incapable of:

1. understanding the nature and effect of decisions about the matter,

2. freely and voluntarily making decisions about the matter and

3. communicating the decisions in some way.[117]

A financial matter for an adult, is defined in the Act as, a matter relating to the adult’s financial or property matters. It includes a matter relating to one or more of the following:

1. paying maintenance and accommodation expenses for the adult and the adult’s dependants, including, for example, purchasing an interest in, or making another contribution to, an establishment that will maintain or accommodate the adult or a dependant of the adult,

2. paying the adult’s debts, including any fees and expenses to which an administrator is entitled under a document made by the adult or under a law,

3. receiving and recovering money payable to the adult,

4. carrying on a trade or business of the adult,

5. performing contracts entered into by the adult discharging a mortgage over the adult’s property,

6. paying rates, taxes, insurance premiums or other outgoings for the adult’s property,

7. insuring the adult or the adult’s property,

8. otherwise preserving or improving the adult’s estate,

9. investing for the adult in authorised investments,

10. continuing investments of the adult, including taking up rights to issues of new shares, or options for new shares, to which the adult becomes entitled by the adult’s existing shareholding,

11. undertaking a real estate transaction for the adult,

12. dealing with land for the adult under the Land Act 1994 (Qld) or Land Title Act 1994 (Qld),

13. undertaking a transaction for the adult involving the use of the adult’s property as security (for example, for a loan or by way of a guarantee) for an obligation the performance of which is beneficial to the adult, a legal matter relating to the adult’s financial or property matters, and

14. withdrawing money from, or depositing money into, the adult’s account with a financial institution.[118]

8. 4. 5. Appointing an administrator

The matters the Tribunal must be satisfied about before it may appoint a person as an administrator are essentially those it must be satisfied about before it may appoint a person a guardian. These are set out in Chapter 6. 7. 5. In addition, the proposed administrator must not be a bankrupt or be taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cth) or a

similar law of a foreign jurisdiction.[119]

The Tribunal may appoint the Public Trustee or a trustee company under the

Trustee Companies Act 1968 (Qld) as the administrator of an impaired adult.[120]

8. 4. 6. Joint, several, alternate and successive administrators

In relation to these matters, the same provisions apply as apply to guardians. These are set out in Chapter 6. 7. 6. In addition, the appointment of an administrator ends automatically if the administrator becomes bankrupt or insolvent.[121]

8. 4. 7. Queensland administration orders

The Guardianship and Administration Act 2000 (Qld) empowers administrators to exercise power in relation to all the financial matters of the adult with impaired capacity they have been appointed administrator for or in relation to those financial matters of that adult set out in the order appointing them. Administrators may do anything in relation to the financial matters that the incapable adult would have been able to do if they had had capacity.[122] In this sense administration orders made by QCAT may be either plenary, covering all of the estate of the adult with impaired capacity, or limited in the sense of covering only those financial matters specifically referred to in the administration order. In this way part of the person’s estate may not be covered in the administration order leaving that part of the estate in their hands to be managed either by them or informally by others on their behalf.

8. 4. 7. 1. Interim orders

If QCAT is satisfied that urgent action is required because of a serious risk to the financial affairs of an adult with impaired capacity, it may make an interim order appointing an administrator, for a maximum period of six months, without having to conduct a full hearing, provide notice of the hearing, or otherwise comply with the requirements of the Guardianship and Administration Act 2000 (Qld).[123] The procedure for dealing with applications for interim orders is set out in a Presidential Direction.[124]

8. 4. 8. Powers and functions of an administrator

As already noted, Queensland administrators may do anything in relation to the financial matters they have been appointed to administer that the incapable adult would have been able to do if they had had capacity.[125] Some of the powers and functions of administrators are set out in the Guardianship and Administration Act 2000 (Qld).[126] Those powers and functions and the common law powers and functions of administrators are dealt with later in this chapter at 8. 11. 14.

Administrators of estates valued at less than $50,000, excluding the principal place of residence or aged care facility bond of the person whose financial matters are being administered, account directly to QCAT. If the estate is valued at $50,000 or more, with the same exclusions, the administrator must submit the accounts of the estate they are administering to one of a panel of examiners approved by QCAT.

8. 4. 9. Reviews of administration orders

QCAT must conduct a review its appointment of an administrator at least every five years.[127] In addition to these periodic reviews, QCAT may also review its appointment of an administrator on its own initiative (own initiative reviews) or on the application of certain persons (requested reviews).[128] The provisions in relation to reviews of administration orders in Queensland, including the parties to such reviews and the powers of QCAT when conducting such reviews, are the same as those for the reviews of guardianship orders. These are set out in Chapter 6. 7. 11.

It should be recalled that, having conducted its review, QCAT must revoke the administration order unless it is satisfied it would have made an appointment if it had been dealing with a new application for an appointment of an administrator.[129] The Tribunal may replace administrators after conducting a review.[130]

8. 5. South Australia

8. 5. 1. Who has jurisdiction to appoint administrators?

In South Australia, both the Supreme Court and the District Court may make protection orders and the Guardianship Board may make administration orders. The Supreme and District Courts may make protection orders under the Aged and Infirm Persons’ Property Act 1940 (SA).[131] The Supreme Court may retain its parens patriae jurisdiction to appoint administrators for the estates of incapable people and the District Court may also have the same parens patriae jurisdiction.[132] Nevertheless, the Aged and Infirm Persons’ Property Act 1940 (SA) appears to give the Guardianship Board precedence over the two courts in relation to the making of administration orders.[133]

Consequently, for the reasons set out in Chapter 6. 6. 1., the wise course is to make applications for administration orders to the Guardianship Board of South Australia rather than to the Supreme or District Court, unless the court has awarded damages to a person who has a physical or mental infirmity which renders them unable to manage their financial affairs. The role of the two courts in making protection orders will be returned to below at 8. 5. 8.

In summary, the Guardianship Board and the Supreme and District Courts have jurisdictions, arising from different sources, to make administration orders:

1. Guardianship Board, under the Guardianship and Administration Act 1993 (SA),

2. Supreme Court, under the Aged and Infirm Persons’ Property Act 1940 (SA),

3. Supreme Court, under the parens patriae element of its inherent jurisdiction,

4. District Court, under the Aged and Infirm Persons’ Property Act 1940 (SA).

8. 5. 2. Who may apply for an administrator order?

Those who may make an application to the Guardianship Board for a guardianship order or for the variation or revocation of such an order may also make applications for administration orders.[134] This matter is dealt with at 6. 6. 2.

8. 5. 3. Who may take part in the hearing as a party?

This matter is dealt with in Chapter 6. 6. 3. Those who may attend the hearing of an application for a guardianship order for a particular person may also attend the hearing of an application for an administration order for the same person. It is common for applications for both orders to be heard together.

8. 5. 4. What has to be proved before an order can be made?

Before the Board may make an administration order it must be satisfied by the evidence before it that the person the subject of the application:

1. has a mental incapacity, and

2. should have an administration order made in relation to them.[135]

The term “mental incapacity” and the considerations that the Guardianship Board has to take into account before it can make an administration order are set out in Chapter 6. 6. 4 as they are the same as those that the Board has to take into account before it may make a guardianship order.[136]

8. 5. 5. Appointing an administrator

The Guardianship Board may appoint any of the following as an administrator:

1. the Public Trustee,

2. a trustee company under the Trustee Companies Act 1988 (SA), or

3. any natural person who the Board considers suitable to act as administrator of the estate of the person the hearing is about.

The Board cannot appoint anyone as an administrator unless they consent to the appointment. However the Public Trustee’s consent is not required before the Board appoints her.[137] It is suggested that the Public Trustee cannot refuse to accept an appointment as administrator by the Board.

When determining the suitability of a person for appointment as a private administrator, the Board must have regard to:

1. whether the potential appointee and the person with the mental incapacity would be incompatible,

2. whether there is some existing family arrangement or relationship that should be preserved or should not be disturbed,

3. whether the potential appointee would be competent to discharge the functions of an administrator and would do so in accordance with the principles set out in the Guardianship and Administration Act 1993 (SA),[138]

4. whether the potential appointee would be readily available for discharging those functions,

5. whether any conflict of interest would arise from the appointment. (The fact that a proposed appointee is related to the person with the mental incapacity by blood or marriage is not, of itself, to be taken as giving rise to a conflict of interest), and

6. such other matters as the Board considers relevant.[139]

8. 5. 6. Joint, several and alternate administrators

While the Public Trustee may only be appointed as a sole administrator, the Guardianship Board may appoint more than one private administrator to administer the estate of a mentally incapacitated person. If that is done, the administrators are joint administrators who must concur with one another in every act done and decision made in relation to the person the order is about.[140]

While it is possible for the Board to appoint administrators with separate functions and thus as “several” administrators, it would not be very practical to do so and would make it difficult for the administrators to consult among themselves and with the person the order is about and act in that person’s best interests.

8. 5. 7. Types of administration orders

8. 5. 7. 1. Limited and full administration orders

The Guardianship Board may appoint an administrator for only a specified part of a mentally incapable person's estate - a limited administration order – unless it is satisfied that such an order would not be appropriate, in which case it can make a full administration order applying to the whole of the person's estate.[141]

8. 5. 7. 2. Self-revoking orders

The Board has power to include limitations in any administration order it makes, including a limitation as to the duration of the order. Consequently, it may make administration orders that are to last only for a set period (of less than three years). Such orders would not have to be reviewed at the “circumstances reviews” discussed at 8. 5. 11. 1 below.[142] Self-revoking orders may be made for both limited and full administration orders.

8. 5. 7. 3. Urgent orders

If it is satisfied that urgent action is required, the Board may make an urgent administration order for up to 21 days where such an order is necessary to stop transactions such as withdrawals from bank accounts or the transfer of the title to real estate taking place.[143] There must be grounds for believing that the person lacks mental incapacity but that more evidence has to be gathered to demonstrate whether or not the person the hearing about has a mental incapacity.

8. 5. 8. Powers of the Supreme and District Courts to make protection orders

Both the Supreme Court and the District Court may make a protection order applying to all or part of the estate of a person who, they are satisfied, because of age, disease, illness, or physical or mental infirmity, is:

1. unable, wholly or partially, to manage their affairs,

2. being subjected to or liable to be subjected to, undue influence in relation to their estate or the disposition of it, or

3. otherwise in a position which the court considers it necessary in the interest of that person or of those dependent upon them that their property should be protected.[144]

These criteria are consistent with those that courts and tribunals elsewhere in Australia have to be satisfied about before they may make an administration order, but the two South Australian courts have a broad discretion to make administration orders where they are satisfied that a person is wholly or partially unable to manage their affairs because:

1. the person takes alcohol to excess or uses any intoxicating, stimulating, narcotic, or sedative drug to excess, and

2. this renders them, either continuously or occasionally, wholly or partially unable to manage their affairs.[145]

The courts may do this notwithstanding anything to the contrary in any other Act.[146]

8. 5. 8. 1. Who may apply for a protection order?

The following may apply for a protection order in either the Supreme or District Court:

1. the person whose property is sought to be protected,

2. the person they are married to or their domestic partner,[147]

3. any near relation by blood or marriage of the person,[148]

4. the Public Trustee, or

5. any other person who, through evidence, satisfies the court that circumstances exist which make it proper that they should make the application.[149]

When dealing with an action for damages for personal injury, both the Supreme or District Courts may, either on their own motion or on application, but before assessing the amount of the damages, make a protection order relating to all or part of the estate of the person the action for damages is about if it appears to the court that, as a result of that injury, the person suffers or is likely to suffer from some physical or mental infirmity which renders them:

1. unable, wholly or partially, to manage their affairs, or

2. actually or likely to be subject to undue influence concerning their estate or the disposition of it.[150]

The courts may also make a protection order it they consider it is otherwise necessary in the interests of the person or their dependents that their property should be protected under the Aged and Infirm Persons’ Property Act 1940 (SA).[151] This provision, inserted in the Act in 1973, reflects more paternalistic philosophy than is reflected in the principles of the Guardianship and Administration Act 1993 (SA).[152]

8. 5. 8. 2. Who may be appointed manager under a protection order?

The courts may, in a protection order, appoint any of the following as either sole or joint manager:

1. the person’s spouse or domestic partner,

2. the person’s near relation by blood or marriage,

3. some other person, or

4. any incorporated body (usually a trustee company).[153]

The courts may appoint the Public Trustee but alone, not jointly.[154] The common law preference for appointing a family member appears to have been displaced by the terms of the Aged and Infirm Persons’ Property Act 1940 (SA) so that in any case the courts have a complete discretion as to whether or not they appoint the Public Trustee or some other person or body.[155]

The courts may rescind or vary any protection order.[156] The powers that managers have, unless the appointing court otherwise orders, are set out in the Act.[157]

8. 5. 9. Relationship between Aged and Infirm Persons’ Property Act 1940 (SA) Guardianship and Administration Act 1993 (SA)

If the Guardianship Board has made an administration order in relation to an estate or part of an estate, then neither the Supreme nor District Court may make a protection order in relation to that estate or part of an estate. Furthermore, if either of those courts has made a protection order in relation to an estate or part of an estate and subsequently the Guardianship Board makes an administration order covering that estate or part of an estate and files its order in that court, the protection order is deemed to have been rescinded as from the day that the administration order was made.[158] In these ways administration orders made by the Guardianship Board take precedence over protection orders made by the two courts.

8. 5. 10. Powers and functions of an administrator

The Guardianship and Administration Act 1993 (SA) makes it clear that, although the administrator has the control and management of the estate and has the duties and obligations of, and is accountable as a trustee in relation to it, the estate does not vest in the administrator.[159] The estate remains the property of the mentally incapable person.

Administrators have significant powers and duties when appointed by the Guardianship Board; however the Board can limit the extent of these powers in the orders it makes.[160] Nevertheless, the Board may, in its orders, confer further powers on an administrator, beyond those set out in the legislation, if the Board considers these necessary or desirable for the proper administration of the estate of the mentally incapable person. The Board may include in the administration order such conditions or limitations as it thinks fit, including a limitation as to the duration of the order.[161] It is by appointing them that the Board gives administrators their powers to act in South Australia. Most of the powers of administrators are found in the Guardianship and Administration Act 1993 (SA).[162]

Private administrators must provide statements of the accounts of the estates they are administering to both the Guardianship Board and the Public Trustee.[163] The Public Trustee must examine those statements of accounts and report on them to the Board.[164] Where the Public Trustee is the administrator, she must provide statements of the accounts of each estate she is administering as a result of an order by the Board to the Board at intervals decided by the Board.[165]

8. 5. 11. Reviews of administration orders

8. 5. 11. 1. Automatic reviews

The Guardianship Board is required to review the “circumstances” of those whose financial affairs are under administration at least every three years to see whether the administration order in relation to them is still appropriate for those people. On completion of the review, the Board must revoke the order unless it is satisfied that there are proper grounds for keeping the order in force.[166] If the Board decides to keep the order in force, it may vary the terms of the order. The Board has a wide discretion as to how it may conduct its reviews. [167]

8. 5. 11. 2. Parties to automatic reviews of administration orders

The Guardianship and Administration Act 1993 (SA) does not set out who are the parties to a review; however procedural fairness would require that at least the person whose estate was under administration, the administrator of their estate and their guardian (if any) would have to be notified of the review and be given the opportunity to take part in it.

8. 5. 11. 3. Powers of the Board on automatic review

While the Board is required to review the circumstances of the person rather than the administration order, the purpose of the review is to decide whether the administration order is still needed. If it is not still needed, it must be revoked so that the person is not under the stigma of having an administration order. If the order is still needed, its terms may be varied.

8. 5. 11. 4. Requested reviews

The website of the Public Advocate notes that the Board will review an administration order upon request, if there is new information or a change in circumstances to justify such a review.[168] The Guardianship and Administration Act 1993 (SA) provides that “on an application” the Board may vary or revoke an administration order.[169]

8. 5. 11. 5. Who may request a review?

While the Act does not set out who may request such a review, procedural fairness would require that the person requesting the review would have to have, in the opinion of the Board, sufficient interest in the order being varied or revoked before it would carry out the review.

8. 5. 11. 6. Parties to requested reviews of administration orders

Again, while the Act does not set out who are the parties to requested reviews, at least the person whose estate was under administration, the administrator of their estate and their guardian (if any) would have to be notified of the review and be given the opportunity to take part in it.

8. 5. 11. 6. Powers of the Board when dealing with requested reviews

Requested reviews appear to be limited to applications to vary or revoke the order. The drafting of the relevant section opens up the argument that these applications are different in nature from the reviews of its orders that the Board is required to carry out at intervals of no more than three years. The argument is that they limit the Board to either dismissing the application or varying or revoking the administration order and they are not reviews of “the circumstances” of the person the order is about which require the Board to revoke the order unless it is satisfied that there are proper grounds for the order remaining in force.[170]

8. 6. Tasmania

8. 6. 1. Who has jurisdiction to appoint financial managers?

For the reasons set out in Chapter 6. 5. 1., the wise course is to make applications for orders appointing administrators to the Guardianship and Administration Board of Tasmania rather than to the Supreme Court.

8. 6. 2. Who may apply for a financial management order?

Any person may apply to Guardianship and Administration Board for an order appointing an administration for the estate of a person with a disability who is 18 years old or older.[171] As to other aspects of this matter, see Chapter 6. 5. 2.

8. 6. 3. Who may take part in the hearing as a party?

This matter is dealt with sufficiently in Chapter 6. 5. 3.

8. 6. 4. What has to be proved before an order can be made?

Before the Board may make an administration order, it must be satisfied by the evidence that:

1. the person the hearing is about has a disability,

2. because of that disability they are unable to make reasonable judgements about matters relating to all or any part of their estate, and

3. they are in need of an administrator for their estate.[172]

As to the other matters and considerations the Board has to put its mind to, these are set out in Chapter 6. 5. 4. and 6. 4. 4.

8. 6. 5. Appointing a financial manager

Where Board is satisfied that it is in the best interests of the person the hearing is about to appoint an administrator for their estate, it may appoint as administrator:

1. the Public Trustee,

2. the Public Guardian,

3. a trustee company, or

4. a private person.[173]

While none of the Public Trustee, Public Guardian or trustee companies have to meet any specific criteria, private persons have to be suitable to act as the administrator and the Board has to be satisfied as to other matters in relation to them.[174] These are set out in Chapter 6. 5. 5. and 6. 4. 5.[175]

8. 6. 6. Joint/several/alternate administrators

It is the practice of the Tasmanian Board to appoint only single administrators. Applying the normal rules of statutory interpretation, the Board may be able to appoint joint administrators, provided each of them meets the criteria for appointment as an administrator and they have the same functions as each other. [176] They would have to make the decisions about the estate jointly. The Board does not appoint joint administrators with different functions and does not to appoint alternate administrators. The Guardianship and Administration Act 1995 (Tas), provides for such appointments in relation to guardians, but does not have similar provisions in relation to administrators.[177]

Also, since there is no provision for dealing with the death of an administrator, the administration order would cease to operate if the administrator died.

8. 6. 7. Types of administration orders

8. 6. 7. 1. Limited orders

The Board may make limited orders which list the type of financial decisions that the administrator is authorised by the Board to make.

8. 6. 7. 2. Full orders

The effect of the Guardianship and Administration Act 1995 (Tas) is that the Board may make a full order which allows an administrator to make all the financial decisions for the person with the disability only if such an order is the least restrictive of the person’s freedom of decision-making and action as is possible in the circumstances.

8. 6. 7. 3. Emergency administration orders

The Board has the power to make an emergency order appointing the Public Trustee as the administrator of the estate of a person whose estate is not already under administration applying the same processes and criteria as for appointing a guardian where it is proper to do so for reasons of urgency.[178] These processes and criteria are set out Chapter 6. 5. 7. 3.

8. 6. 8. Powers and duties of an administrator

In Tasmania administrators must at all times act in the best interests of the person whose estate they are administering. This involves them acting as far as possible:

1. in such a way as to encourage and assist the person whose estate they are administering to become capable of administering their own estate; and

2. in consultation with that person and in taking into account as far as possible their wishes.[179]

Their powers and duties are set out in the Guardianship and Administration Act 1995 (Tas).[180] These powers are similar to those given to administrators in New South Wales and Victoria. Administrators must provide statements of accounts of the estates they are administering to the Guardianship and Administration Board. The Board must examine those statements of accounts and have them audited if necessary.[181]

8. 6. 9. Administrators may seek advice

An administrator may apply to the Board for advice or directions on any matter relating to:

1. the scope of the administration order appointing them, or

2. the exercise of any power by the administrator under that order.[182]

If the Board receives such an application, it may require notice of the application to be given to any person that the Board directs. However, the Board may exercise its powers in relation to such an application without conducting a hearing. After considering the application, the Board may:

1. approve or disapprove of any act proposed to be done by the administrator,

2. give such advice as it considers appropriate, and

3. vary the administration order or make any other order that it could have made on the original application relating to the administration of the estate that it considers necessary.[183]

In addition, the Board of its own motion may direct, or offer advice to, an administrator in respect of any matter relevant to the administrator’s administration of the estate.[184]

8. 6. 10. Reviews of administration orders

As with guardianship orders, the Board may make administration orders for a maximum of three years. After that they will expire unless they are continued after a review.[185] However, the Board is also empowered to hold a hearing to review an administration order at any time. It may do so:

1. on its own initiative,

2. on application by, or on behalf of, the person whose estate is under management, or

3. on the application of any other person.[186]

8. 6. 11. Parties to reviews of guardianship orders

In Tasmania the parties to reviews of administration orders are those persons that procedural fairness requires to be treated as parties. These are at least the following:

1. the person the order is about,

2. the administrator of their estate,

3. the applicant for the review if they are neither the administrator nor the person whose estate is under administration.

Others, such as the spouse of the person whose estate is under administration, may be entitled to be parties, but that will depend on the circumstances of the case. However, it not necessary to be a party to be able to attend a review and to give evidence at it

8. 6. 12. Powers of the Board on review

After conducting the review hearing, the Board may vary or continue the administration order, subject to any conditions or requirements it considers necessary, or it may revoke the order. Also, the Board may make such further orders as it considers necessary in order to give effect to the administration order.[187]

In a 2004 case the Board received an application for an early review of an administration order from the administrator. She wished to resign as administrator citing emotional conflict within the family. After considering the circumstances of the case, including the claim of another family member for appointment as administrator, the Board varied its original order by appointing the Public Trustee as administrator. The Board concluded its reasons for decision as follows:

The evidence received indicated to the Board that appointment of another family member would exacerbate existing conflicts. While appointment of the Public Trustee cannot solve those conflicts, it can ensure that decisions made about Mrs P’s estate are made independently from that conflict and for a single purpose of ensuring her best interests.[188]

8. 7. Victoria

8. 7. 1. Who has jurisdiction to appoint financial managers?

The opinion of Morris J that Victoria has comprehensive laws relating to guardianship and administration matters and the Victorian Civil and Administrative Tribunal (VCAT) has a wide jurisdiction to deal with them has been noted a number of times. While the Supreme Court of Victoria’s parens patriae jurisdiction may continue to exist, that Court has preferred to leave the making of administration orders to VCAT.[189] This approach was noted in a 2006 case.[190] Consequently, for the purposes of this chapter, only VCAT’s jurisdiction to deal with applications in relation to administration matters, under the Guardianship and Administration Act 1986 (Vic) will be considered.

8. 7. 2. Who may apply for an administration order?

Any person may apply to VCAT for an order appointing an administrator of the estate of a person with a disability who is 18 years old or older or for such an order to take effect when the person reaches 18 years, if that person is resident in Victoria and they have real or personal property in Victoria.[191] If the person is not resident in Victoria, the application cannot be made until they have reached 18 years of age and may apply only to that part of their estate that is in Victoria.[192]

8. 7. 3. Who may take part in the hearing as a party?

The following are automatic parties to an application:

1. the applicant who can be any person,

2. the person the application is about (the person),

3. the proposed administrator, and[193]

4. anyone made a party to the application by VCAT.[194]

The following are entitled to notice of the application, the hearing and any order made as a result of the application:

1. the nearest relative available of the person the application is about, [195]

2. the primary carer (if any) of the person the application is about,[196]

3. the Public Advocate,

4. any guardian of the person the application is about, and

5. any person who has advised VCAT of their interest in the person the application is about or in their estate.[197]

8. 7. 4. What has to be proved before an order can be made?

Before VCAT may make an administration order, it must be satisfied that the person the application is about:

1. is a person with a disability,

2. that by reason of that disability is unable to make reasonable judgments concerning matters relating to all or any part of their estate,

3. is in need of an administrator of their estate, and

4. an administration order would be in their best interests.[198]

In a 2006 case, Cavanough J pointed out that the first three of these matters are seen as separate and cumulative requirements and should not be conflated. He said that the question of whether the person was “in need of an administrator” did not arise unless and until VCAT was satisfied, first, that they were a “person with a disability” and that, second, because of that disability they were unable to make reasonable judgments about all or part of their estate. He also noted that, generally speaking, the question of “need” would be answered primarily by reference to the availability or otherwise of alternative arrangements outside administration (such as family support) to compensate for or deal with the person’s identified “inability”.[199]

The Guardianship and Administration Act 1986 (Vic) also requires VCAT when determining whether or not a person is in need of an administrator of their estate, to consider whether the needs of the person the application is about

could be met by other means that were less restrictive of their freedom of decision and action.[200] Also, any administration order that VCAT makes must be the least restrictive of freedom of decision and action of the person the order is about as is possible in the circumstances.[201]

8. 7. 5. Appointing an administrator

Where VCAT is satisfied that it is in the best interests of the person the hearing is about to make an administration order in relation to their estate, it may appoint either a private person, the State Trustees or a trustee company as the administrator of the person’s estate. Unlike with the appointment of a guardian, there is no statutory requirement preventing VCAT appointing either the State Trustees or a trustee company as the administrator of the person’s estate only if no private person meets the tests set out below. VCAT has a wider discretion as to whom it may appoint, but that discretion is limited by the preference established in the common law to appoint a family member provided that that is in the best interests of the person the hearing is about and that family member meets the requirements set out in the next paragraph.[202]

Before VCAT may appoint a private person as the administrator of the person’s estate it must be satisfied that the proposed administrator is 18 years or older and consents to be the administrator and that the proposed administrator:

1. will act in the best interests of the person the hearing is about,

2. is not in a position where their interests conflict or may conflict with the interests of the person the hearing is about,[203]

3. is a suitable person to act as the administrator of the estate of the person the hearing is about, and

4. has sufficient expertise to administer the estate. [204]

If a person met the first three of these criteria and there was a special relationship or some other special reason why the proposed administrator should be appointed, then VCAT may appoint them.[205]

When deciding whether a person is suitable to be the administrator, VCAT must take into account:

1. the wishes of the person the hearing is about,

2. the compatibility of the prospective administrator with the person the hearing is about and with their guardian (if any). [206]

8. 7. 6. Joint/several/alternate administrators

Although VCAT has specific statutory power to appoint joint guardians, it is not given the same power to appoint joint administrators.[207] Nevertheless, under the normal rules of statutory interpretation, VCAT could appoint joint administrators. While doing so can create difficulties as joint administrators have to make all the administration decisions jointly and be in agreement about those decisions, VCAT and tribunals elsewhere in Australia do appoint joint administrators.[208]

While the Guardianship and Administration Act 1986 (Vic) does not deal with the matter in terms, VCAT does occasionally appoint “concurrent” administrators. For example, VCAT has appointed a firm of solicitors as administrator with power limited to “bringing, maintaining or concluding” a particular proceeding in the Magistrates’ Court proceeding while, at the same time, maintaining the appointment of the State Trustees to administer all of the rest of the incapable person’s estate.[209] .

VCAT has no statutory authority to appoint alternative administrators. If an administrator dies, resigns or becomes physically, mentally or legally incapable of administering the estate they were appointed to administer, then a party to the application may apply for a rehearing of the application so that a new administrator may be appointed.[210]

8. 7. 7. Types of administration orders

8. 7. 7. 1. Plenary orders

Usually when VCAT appoints an administrator, it gives the administrator all the powers and duties of an administrator in relation to all of the estate of the incapable person.

8. 7. 7. 2. Concurrent orders involving different aspects of an incapable person’s estate

As already noted in 8. 7. 6 above, VCAT may appoint concurrent administrators responsible for different aspects of an incapable person’s estate.

8. 7. 7. 3. Orders with part of the estate excluded

While in most cases it will appoint the administrator to administer the whole of the estate, VCAT may also make orders which apply to part of a person’s estate and leave other parts of the person’s estate under their control.[211] It is not uncommon for VCAT to appoint an administrator just to conduct proceedings in the Family Court or to apply for a maintenance order under the Administration and Probate Act 1958 (Vic) on behalf of an incapable person, to lodge a caveat to protect an incapable person’s interest in certain land or to administer a pool of money that an incapable person may have inherited, been gifted or won while leaving them in control of the rest of their estate.

8. 7. 7. 4. Temporary orders

Any person can apply to VCAT to make a temporary administration order, whether or not an application can be made for a “normal” administration order. Those entitled to notice of a normal application have the same entitlements in relation to an application for a temporary order.[212]

Before VCAT may make a temporary administration order, it must be satisfied that the person the application is about:

1. is a person with a disability,

2. that by reason of that disability is unable to make reasonable judgments concerning matters relating to all or any part of their estate, and

3. is in need of an administrator of their estate

Temporary administration orders may remain in effect for a maximum of 21 days. VCAT may renew them but only once and for a maximum of 21 days.[213] VCAT must hold a hearing within 42 days of making a temporary administration order to decide whether or not to make a normal administration order in relation to the person the subject of the temporary order.[214] VCAT makes few of these orders, but they are sometimes required to protect an inheritance or a substantial sum of money that is about to or has come into the hands of an incapable person and VCAT is not possible to convene a full hearing of an administration application immediately.

8. 7. 8. The role of VCAT after making an administration order

Unlike in New South Wales where the NSW Trustee has the role of giving administrators their authorities and supervises their management of the estates they have been appointed to administer, in Victoria VCAT is responsible for awarding their powers and duties to administrators. VCAT also sets out the arrangements for the examination or auditing of the accounts of the estates under administration. It also gives directions and advice to administrators about the estates they are administering and reassessing administration orders periodically, on application or on its own initiative.

8. 7. 8. 1. Giving advice etc

VCAT may on its own initiative direct, or give an advisory opinion to, an administrator concerning any matter.[215] In addition, any administrator may apply to VCAT for the advice about any matter relating to the scope of their administration order or the exercise of any power by them under the administration order.[216] When dealing with such an application VCAT may, approve or disapprove of any act proposed to be done by the administrator, give such advice as it considers appropriate and make any order that it considers necessary.[217]

Where State Trustees Ltd wishes to commence proceedings acting in one capacity or on behalf of one person whose estate they are administering against State Trustees Ltd acting in another capacity or on behalf of another person whose estate they are administering, they must seek and obtain an order from VCAT approving such action.[218] Where this situation arises, State Trustees Ltd may deal with the matter by taking action to have another administrator appointed to administer the estate of one of the parties to the proceedings.

Any person who has an interest as a creditor, beneficiary, next of kin, guardian, nearest relative, primary carer or otherwise in any estate being administered by an administrator appointed by VCAT or the Public Advocate may apply to VCAT about any matter arising out of the administration of the estate by the administrator. VCAT may make such order in relation to the application as the circumstances of the case may require.[219] While this right to apply about any matter arising out of the administration of the estate by the administrator is given to a range of people, it is likely that their right to apply would be limited to issues in which they have a clearly identifiable or legitimate interest.

In order to assist VCAT to deal with any question of advice or other order in relation to the administration of estate the subject of an administration order, VCAT may open and read the will of the person whose estate is under administration and the subject of proceedings before VCAT.[220] While VCAT’s application form encourages applicants to find the will of the person the hearing is about and applicants sometimes bring the person’s will to the hearing, VCAT will only look at the will when there is a need to. However, if the person whose estate is under administration makes a will between the time an administration order is made in relation to them and the reassessment of that order, VACT is likely to look at that will.

8. 7. 8. 2. Accounts

Usually at the time that it appoints the administrator of an estate, but sometimes at a later time, VCAT will appoint a person to examine or audit the accounts of the estate for a fee that VCAT approves and which is paid from the estate.[221]

In almost all cases the State Trustees Ltd is appointed as the examiner.

VCAT will receive a report from the examiner or auditor. If that report recommends the disallowance of any item in the accounts, VCAT must deal with that matter. However, it may not make an order disallowing an item if it is satisfied that the administrator acted in good faith and with reasonable care in the exercise of their powers as administrator. If any item is disallowed the administrator is liable for the amount of the item disallowed.[222]

8. 7. 9. Powers and duties of administrators

When VCAT appoints administrators those administrators are automatically invested with certain powers and duties.[223] In addition VCAT may give administrators, in the orders appointing them, one or more of a set of further powers set out in the Guardianship and Administration Act 1986 (Vic).[224]

8. 7. 9. 1. The powers and duties of all administrators.

All administrators appointed by VCAT have the following powers and duties by virtue of their appointment.

Duties of all administrators

Administrators must act in the best interests of the person whose estate they have been appointed to administer. They do this if they act in the person’s best interests generally and in particular they act as far as possible:

1. so as to encourage and assist the person to become capable of administering their own estate, [225]

2. in consultation with the person, and

3. take into account, as far as possible, the wishes of the person.[226]

They must also keep accounts for each estate that they administer and have those accounts examined or audited by a person appointed for the purpose by VCAT.[227]

Powers of all administrators

All administrators have the general ancillary power to sign and do all such things as are necessary to give effect to any power or duty vested in them as an administrator. However, they may not execute a will in the name of the person whose estate they are administering.[228]

Administrators may apply to VCAT for advice about any matter relating to the scope of their administration order or the exercise of any power by them administrator under that administration order.[229]

Any administrator may make gifts of the property of the person whose estate they are administering, but only if:

1. the value of the gift is not more than what is reasonable in all the circumstances and, in particular, the person's financial circumstances,

2. the gift is;

(i) to a relative or close friend of the person and is of a seasonal nature or for a special event (including, for example, a birth or marriage),

(ii) a type of donation that the person had made when they had the capacity to do so or might reasonably be expected to make.[230]

Administrators themselves or any charity with which they have a connection is not precluded from receiving such gifts.[231] However, administrators must notify VCAT in writing if the value of the gift, or the total value of the gifts to the administrator, or a charity with which the administrator has a connection, is $100 or more.[232]

Private administrators and trustee companies appointed as administrators, but not the State Trustees Ltd, which has investment powers under its own Act, may:

1. for such period as the administrator thinks fit allow any part of the estate to remain invested in the manner in which it had been invested by the the person whose estate they are administering,

2. in the case of money deposited in an authorised deposit-taking institution within the meaning of the Banking Act 1959 (Cth) re-deposit it after it becomes payable.[233]

Private administrators and trustee companies appointed as administrators have and may exercise in relation to any part of the estate they are administering the same powers, including powers of investment, as the administrator would have if the administrator were a trustee of that part of the estate under the Trustee Act 1958 (Vic).[234]

Administrators must keep separate accounts for the estates they are administering. They must lodge these accounts as soon as practicable after, the anniversary of their appointment as administrator each year. These accounts must provide a full and true account of the assets and liabilities of the estate and all receipts and disbursements relating to it.[235] Sometimes VCAT may require an administrator to lodge accounts at another time.[236] The examiner or auditor will examine the accounts and must lodge with VCAT a report in relation to those accounts.[237]

In addition to the powers and duties conferred on all administrators appointed by VCAT as a consequence of their appointment, there are certain powers and duties that may be imposed upon them in the order appointing them.

Duties that VCAT can impose on an administrator

While VCAT has a discretion as to whether it imposes all the duties listed below on an administrator, its practice is to do so.[238] These duties are to:

1. have the general care and management of the estate,

2. take possession and care of, recover, collect, preserve and administer the property and estate,

3. generally manage the affairs of the person,

4. exercise all the statutory or other rights which the person might exercise if they had legal capacity, and

5. in the name and on behalf of the person may generally do all acts and exercise all powers concerning the estate as effectually and in the same manner as the person whose estate they are administering could have done if they were not under a legal disability.[239]

Powers that VCAT can give to an administrator

While VCAT has a discretion as to whether it gives all the powers listed below on an administrator, its practice is to do so.[240] These powers that an administrator may exercise, in the name and on behalf of the person whose estate they are administering, are to:

1. collect, receive and recover income of and money due or which becomes due to and any compensation or damages for injury to the estate or person of the person,

2. invest any money in any security in which trustees may by law invest,

3. grant a lease of land at a rent and on conditions as the administrator thinks fit for any term not exceeding 5 years or, with the consent of VCAT, for any longer term,

4. exercise to the extent and in the manner the administrator thinks proper any power of leasing that is vested in the person whose estate they are administering,

5. surrender any lease, accept any lease, accept the surrender of any lease or renew any lease,

6. bring land under the Transfer of Land Act 1958 (Vic),

7. sell, exchange, partition or convert into money any property,

8. mortgage or charge any property,

9. pay any debts and settle, adjust or compromise any demand made by or against the estate and discharge any encumbrance on the estate,

10. carry on so far as appears desirable any trade, profession or business which the person carried on,

11. agree to any alteration of the conditions of any partnership into which the person has entered or to a dissolution and distribution of the assets of the partnership,

12. bring and defend actions and other legal proceedings in the name of the represented person,

13. execute and sign deeds, instruments and other documents,

14. complete any contract for the performance of which the person was liable, or enter into any agreement terminating liability,

15. pay any sum for the maintenance of the person (and, in the event of their death, for funeral expenses) and for the maintenance of their spouse or domestic partner or any child, parent or other person dependent on them and for the maintenance and education of their children as to the administrator seems expedient and reasonable,

16. do all matters necessary or incidental to the performance of any of the matters set out above and apply any money from the estate which it is necessary to apply for the purposes of the Guardianship and Administration Act 1986 (Vic).[241]

In addition VCAT may give the administrator any of the following powers to exercise if the administrator considers it expedient and reasonable to do so. VCAT usually gives these powers too. They are:

1. pay or cause to be paid to the person for their personal use any amount of their money that the administrator has control of,

2. give or cause to be given to the person for their personal use any personal property which belongs to them and is under the control of the administrator.[242]

3. If a person whose estate is being administered has a power vested in them for their benefit or their consent is necessary to the exercise of a power and the power or consent is in the nature of a beneficial interest held by them, the administrator may exercise that power or consent in any manner the administrator thinks fit if it appears to the administrator to be for the benefit of the represented person that the power should be exercised or the consent given. Administrators have a similar discretion if the power or consent is given to the person whose estate they are administering in the character of a trustee or guardian.[243]

An administrator may open and read the will of the person whose estate they are administering.[244] This is a prudent step, particularly if the person has considerable assets and property as they may have left specific bequests of some of their real and personal property. It is preferable to avoid selling such real or personal property or changing its character as part of the administration of the estate during the lifetime of the person whose estate they are administering if that is possible while still acting in the best interests of the person.

On its website VCAT advises that it usually requires administrators to provide a financial statement and plan about how they intend to manage the estate within six weeks after the date of the administration order. Also, VCAT usually requires administrators to lodge statements of accounts of the estates they are managing each financial year. These are examined by the State Trustee.[245]

8. 7. 10. Effect of a financial management order

The real and personal property the subject of the administration remains the property of the person the order is about even if the nature of that property changes, for example, by land or shares being sold and converted into money.[246] Nevertheless, while an administration order applies to a person’s estate, the person the order is about cannot deal with, transfer, alienate or charge their money or property or any part of it that is under the control of the administrator or become liable under any contract in relation to that part of the estate, unless:

1. VCAT orders that the person may deal with their property or become liable under a contract, or

2. the administrator gives their written consent to them so dealing or becoming so liable.[247] In exercising this discretion, administrators do not have to obtain the consent of VCAT.

Every dealing, transfer, alienation or charge by the person in relation of any part of the estate which is under the control of the administrator is void and of no effect. Also, any money or property the subject of any such dealing, transfer, alienation or charge is recoverable by the administrator in any court of competent jurisdiction. However, any dealing, transfer, alienation or charge by any person the subject of an administration order made for adequate consideration with or to or in favour of any other person who proves that they acted in good faith and did not know or could not reasonably have known that the person was the subject of an administration order remains valid.[248]

8. 7. 11. Requested rehearings

In Victoria, VCAT can rehear an application for an administration order if an application is made to it regardless of whether an administration order was made or the application was dismissed at the first hearing. If this happens, the matter is reheard by a more senior member. No rehearing can be applied for if VCAT makes a temporary order or if the President of VCAT hears the application alone or with others.[249]

8. 7. 11. 1. Who may apply?

The Public Advocate, an automatic party or a person entitled to notice of the application may apply to for a rehearing of the application.[250] A person entitled to notice of the application who did not become a party at the initial hearing may apply for a rehearing, but only if VCAT gives them leave to do so.[251] The application for a rehearing, or for leave to apply for a rehearing, must be made within 28 days after the day of the order.[252]

8. 7. 11. 2. Parties to rehearings of applications for administration orders

Anyone who was a party to the hearing of an application for an administration order is a party to a rehearing of the application, in addition to any other parties such as a person given leave to apply for a rehearing or a person joined as a party by VCAT. Anyone was entitled to notice of the initial application is entitled to notice of the application for a rehearing.[253]

8. 7. 11. 3. Powers of VCAT at the rehearing

VCAT must rehear the matter but in doing so has all the functions and powers it had at the first hearing. After rehearing the application, VCAT may:

1. affirm the order made at the first hearing,

2. vary that order,

3. set aside that order and make another order instead.[254]

8. 7. 12. Reassessments of administration orders

In Victoria administration orders, as with guardianship orders, are the subject of periodical reassessment. They can also be the subject of requested reassessments.[255]

VCAT must conduct a reassessment of any administration order within 12 months after making the order, unless it orders otherwise, but must reassess the order at least once within each three year period after making the order. However, again VCAT has the discretion to order otherwise.[256] In practice where VCAT makes a longer order, it is usually only for three months or less longer and for administrative convenience.

Nevertheless, VCAT may at any time conduct a reassessment of an administration order made by it either on its own initiative or on the application of any person.[257]

8. 7. 12. 1. Parties to reassessments

The following are automatic parties to a reassessment:

1. the person whose estate is under administration, and

2. the administrator.[258]

The following are entitled to notice of the making of the application for reassessment, the hearing and any order made as a result of the reassessment:

1. the nearest relative available of the person the application is about, [259]

2. the primary carer (if any) of the person the application is about,[260]

3. the Public Advocate,

4. any guardian of the person the application is about.

Note that if VCAT intends to conduct a reassessment either as a periodic one or on its own initiative and does not propose to amend, vary or replace the order it may give notice to the automatic parties and the others referred to above that they can request a hearing of the reassessment. If no hearing is requested VCAT may conduct its reassessment “on the papers” without a hearing.[261]

8. 7. 12. 2. Orders after reassessments

After completing the reassessment VCAT may amend, vary, continue or replace the administration order subject to any conditions or requirements it considers necessary; or it may revoke the order.[262]

8. 8. Western Australia

8. 8. 1. Who has jurisdiction to appoint administrators?

As already noted in Chapter 6. 8. 1, the Supreme Court of Western Australia’s inherent jurisdiction, of which the parens patriae jurisdiction is part, is not affected by the Guardianship and Administration Act 1990 (WA) which gives Western Australia’s State Administrative Tribunal (WASAT) its jurisdiction to make administration orders.[263] While the Court retains its jurisdiction, most applications for administration orders are made to WASAT. This appears to be supported by the Supreme Court which acknowledged the specialist jurisdiction of WASAT in a 2007 case.[264]

8. 8. 2. Who may apply for an administration order?

Anyone may apply to WASAT for an administration order relating to real and personal property in Western Australia, including that part of the estate which is in Western Australia of a person who is neither resident nor domiciled in Western Australia.[265]

8. 8. 3. Who may take part in the hearing as a party?

The executive officer of the Tribunal must give notice of the hearing at least 14 days in advance to the following so that they can attend if they wish:

1. the applicant,

2. the person the hearing is about,

3. their nearest relative,

4. the Public Advocate,

5. any proposed administrator,

6. the Public Trustee

7. the guardian of the person if one has been appointed, and

8. any other person who in the opinion of the executive officer has a proper interest in the proceedings. [266]

8. 8. 4. What has to be proved before an order can be made?

Before WASAT may appoint an administrator for a person, it must be satisfied that the person is:

1. unable, because of mental disability, to make reasonable judgments about matters relating to all or any part of their estate, and

2. in need of an administrator of their estate.[267]

When dealing with an application to appoint an administrator, the primary concern of WASAT is the best interests of the person the application is about.[268] It must also presume that the person the hearing is about is capable of looking after their own affairs and can make reasonable judgments about matters relating to their estate until the contrary is proved to the satisfaction of WASAT. In addition, the Tribunal must, as far as possible to do so, get the views and wishes of the person the hearing is about however it can when the application is being dealt with or by gathering those views and wishes from the person’s previous actions.[269]

WASAT must not make an administration order if the needs of the person the application is about could be met by other means less restrictive of the person’s freedom of decision and action.[270] Also, any administration order it makes must be in terms that WASAT considers impose the least restrictions possible, in the circumstances of the case, on the person’s freedom of decision and action.[271]

8. 8. 5. Appointing an administrator

If WASAT decides to make an administration order, it must first declare that the person the hearing is about is in need of an administrator for their estate and then proceed to appoint an administrator or joint administrators.[272] Also, the order may be subject to such conditions and restrictions that WASAT thinks fit.[273]

WASAT may appoint as private administrators only adults 18 years and above who have consented to being appointed administrator.[274] Before appointing them, the Tribunal must be of the opinion that they:

1. will act in the best interests of the person whose estate they are appointed to administer, and

2. are otherwise suitable to act as the administrator of the estate of that person.[275]

When considering the suitability of a proposed private administrator for appointment, WASAT is required to take into account as far as possible:

1. the compatibility of the proposed administrator with the person the hearing is about and with the any guardian of that person,

2. the wishes of the person the hearing is about, and

3. whether the proposed appointee will be able to perform the functions proposed to be vested in them as administrator.[276]

The fact that a proposed administrator is the guardian of the person the hearing is about does not disqualify them from being appointed as the administrator of the estate of that person.[277]

WASAT may also appoint as the administrator (or a joint administrator) of an estate, the Public Trustee or a trustee company which has consented to being so appointed.[278] As with private administrators, the Tribunal must be of the opinion before appointing them that they:

1. will act in the best interests of the person whose estate they are appointed to administer, and

2. are otherwise suitable to act as the administrator of the estate of that person.[279]

Furthermore, when considering the suitability of a trustee company for appointment as administrator, WASAT is required to take into account as far as possible:

1. the compatibility of the trustee company with the person the hearing is about and with the any guardian of that person,

2. the wishes of the person the hearing is about, and

3. whether the trustee company will be able to perform the functions proposed to be vested in it as administrator.[280]

This requirement also applies to the Public Trustee[281] However, there are further limits that apply to trustee companies but not to the Public Trustee.[282] A trustee company may not be appointed as an administrator unless WASAT is satisfied that either there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company or the person in the hearing is about has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.[283] Also, as WASAT has noted:

[T]here is a statutory preference for an unpaid individual to act as administrator over a corporate trustee, where such a person who is suitable for appointment exists in the life of the represented person. That statutory preference of an individual over a corporate trustee as administrator does not apply to the Public Trustee.[284]

In Western Australia, the Public Advocate may be appointed as a joint administrator, but WASAT must not appoint the Public Advocate as sole administrator unless there is no other individual or corporate trustee who is suitable and willing to act as administrator of the estate of the person the particular hearing is about.[285] The Former Gaurdianship and Administration Board of Western Australia saw the Public Advocate as administrator of last resort.[286] However, circumstances could arise in which it was inappropriate to appoint the Public Trustee, leading to the Public Advocate being appointed. However, the fact that it may be preferable to appoint the Public Advocate does not render the Public Trustee unsuitable for appointment, nor does the fact that the Public Trustee is required to charge fees fixed by Parliament. In addition the Public Trustee has provided a “standing consent” to being appointed.[287]

8. 8. 6. Joint/concurrent/alternate administrators

As just noted, WASAT may appoint joint administrators.[288] As WASAT may appoint administrators for limited functions such as to conduct legal proceedings on behalf of the person whose estate they are administering, it is likely that it will need to appoint “concurrent” administrators from time to time where one administrator has one or more functions and an another administrator has one or more other functions.[289]

WASAT has no statutory authority to appoint alternative administrators.

8. 8. 7. Types of administration orders

8. 8. 7. 1. Orders giving plenary or limited functions

In Western Australia, WASAT has a discretion to give an administrator all the functions of an administrator (plenary functions) or to give them only the functions of an administrator set out in the order appointing them. [290] Consequently administrators can be appointed for limited purposes.

8. 8. 7. 2. What the Tribunal may do in an emergency

Sometimes situations arise in which an application is made and it appears to the Tribunal that a person may be someone who needs an administration order, but it is not possible for the evidence to prove this to WASAT to be gathered and presented or for appropriate notice to be given or a procedurally fair hearing to be conducted; nevertheless it is necessary to make immediate provision for the protection of the person’s estate. In these circumstances WASAT, pending determination by it of the question whether the person is, in fact, a person in respect of whom an administration order should be made, may exercise such of the powers conferred on it by the Guardianship and Administration Act 1990 (WA) as may be necessary for the protection of the person’s estate.[291] Such powers could include power to collect urgently money that would otherwise come into the hands of the person the hearing was about and may be quickly dissipated or lost by that person.

8. 8. 7. 3. Orders authorising actions without administration orders

Where a person is, because of mental disability, unable to make reasonable judgments about matters relating to all or any part of their estate, but there is no need of a continuing appointment of an administrator of their estate, the Tribunal may, without making such an appointment, make an order authorising or requiring a person who could be appointed as administrator to perform any specified function.[292] These orders are intended for situations where only one or a few actions of a financial nature need to be taken in the interests of the incapable person, for example the sale of a property.[293]

8. 8. 8. Obligations and functions of an administrator

Administrators are required to act according to their opinion of the best

interests of the person whose estate they are administering.[294] They act in the best interests of that person if they act as far as possible:

1. as an advocate for the person whose estate they are administering, in relation to the estate,

2. in such a way as to encourage the person to live in the general community and participate as much as possible in the life of the community,

3. in such a way as to encourage and assist the person to become capable of caring for themselves and of making reasonable judgments in respect of matters relating to their person,

4. in such a way as to protect the person from financial abuse, exploitation or neglect,

5. in consultation with the person, taking into account, as far as possible, the wishes of the person as expressed, in whatever manner, or as gathered from the person’s previous actions,

6. in the manner that is least restrictive of the rights, while consistent with the proper protection, of the person,

7. in such a way as to maintain any supportive relationships the person has, and

8. in such a way as to maintain the person’s familiar cultural, linguistic and religious environment.[295]

Nevertheless, none of these considerations is to be read as restricting the functions of an administrator may have at common law or under any written law.[296] A consequence of that provision is to preserve any functions of an administrator developed by the judge made law and not replaced by the provisions in the Guardianship and Administration Act 1990 (WA) or other relevant legislation.

An administrator with plenary functions may perform any function in relation to the estate that the person whose estate they are administering could have performed if they were capable.[297] An administrator with limited functions may perform any function specified by WASAT in its administration order, including any common law function or any function found on Part A of Schedule 2 of the Guardianship and Administration Act 1990 (WA) or in any in another Act.[298]

Administrators are empowered to execute documents and do such things on behalf of the person whose estate they are administering as are necessary for the performance of the functions vested in them by the administration order appointing them. [299] Any action an administrator takes, decision they make, consent they give or other thing that they do in the performance of the functions vested in them by the order appointing them has effect as if it had been taken, made, given or done by the person whose estate they are administering with full legal capacity.[300]

In Western Australia the supervision of administrators is undertaken by the Public Trustee. Administrators are required, within four weeks of their appointment, to provide the Public Trustee with information about the estate, the person whose estate they are administering and themselves. They must also submit statements of accounts of the estates they are managing to the Public Trustee who examines them.[301] There is no provision for the Public Trustee to report to WASAT about the estates he is administering, except on a review of an administration order.

8. 8. 9. The role of Tribunal after making an administration order

WASAT’s role in relation to administration orders is not confined just to making and reviewing them. When it gives a function to an administrator, it may give directions as to the time, manner or circumstances of the performance of the function by the administrator.[302]

WASAT may deal with applications from administrators with limited functions to increase their functions without the need to conduct a review of the order.[303] This provision is rarely, if ever, used.

While administrators must submit their accounts to the Public Trustee in Western Australia and the Public Trustee has, through its examination of those accounts, a supervisory role over other administrators, the Tribunal may, on application, review decisions of the Public Trustee relation those accounts.[304]

8. 8. 10. Reviews of administration orders

When WASAT makes an administration order, it must specify a period, not exceeding five years, within which the order must be reviewed and WASAT must ensure that the order is reviewed accordingly.[305] However, WASAT must also review an administration order if the administrator or a joint administrator:

1. dies,

2. wishes to be discharged,

3. has been guilty of such neglect or misconduct or of such default as, in the opinion of WASAT, renders them unfit to continue as guardian,

4. appears to WASAT to be incapable of carrying out their duties, because of mental or physical incapacity,

5. is bankrupt or a person whose property is subject to an order or arrangement under the laws relating to bankruptcy, or

6. is a corporate trustee but has ceased to carry on business, has begun to be wound up, or is under official management or subject to receivership.[306]

Any person may make an application for such a review.[307] They do not have to obtain leave from WASAT to do so.

In addition to these mandatory reviews, WASAT may, at any time, review an administration order on the application of:

1. the Public Advocate,

2. the person the order is about,

3. the administrator of their estate

4. their guardian, or

5. a person to whom leave has been granted, with or without conditions, to conduct the review.[308]

8. 8. 10. 1. Parties to reviews of administration orders

As the executive officer of WASAT is required to give those listed below at least 14 days notice of the hearing of any of the three kinds of reviews of administration orders set out above, it is reasonable to assume that they are parties to any reviews to which they are given notice:

1. the applicant where there is one,

2. the person the order under review is about,

3. the nearest relative of that person,

4. the administrator,

5. if there is one, the guardian of the person the hearing is about,

6. the Public Advocate, and

7. any other person who in the opinion of the executive officer has a sufficient interest in the review.[309]



8. 8. 11. Powers of the Tribunal on review

After reviewing an administration order, WASAT may, as it considers necessary in the best interests of the person the order is about:

1. confirm the order,

2. amend the order so as to make any provision that may be included in an administration order,

3. revoke the order,

4. revoke the order and substitute another order for it, or

5. without revoking the order, revoke the appointment of any administrator and appoint a new or additional administrator.[310]

8. 9. Australian Capital Territory

8. 9. 1. Who has jurisdiction to appoint financial managers?

As noted in relationship to guardianship in Chapter 6. 9. 1, the Supreme Court of the Australian Capital Territory continues to have all original and appellate jurisdiction that is necessary to administer justice in the Territory, including its inherent, parens patriae jurisdiction.[311] However, it is not bound to exercise its powers if it has concurrent jurisdiction with another court or tribunal.[312]

Although the Supreme Court may exercise its jurisdiction to appoint managers (the committee) of the property of an incapable person, this jurisdiction is more conveniently and cost effectively exercised by the ACT Civil and Administrative Tribunal (ACAT) which can appoint managers for the property of adults, namely persons 18 years of age or older.[313] ACAT may also appoint managers for persons less than 18 years of age, but such appointments do not take effect until the person turns 18.[314] In the light of these considerations, this chapter will deal only with the jurisdiction of ACAT.

8. 9. 2. Who may apply for a management order?

The Guardianship and Management of Property Act 1991 (ACT) does not set out who may apply for a management order. The question of who may apply is discussed in Chapter 6. 9. 2.

In emergency situations, the Public Advocate will usually apply. Only the Public Advocate or the Public Trustee can be appointed as a person’s manager in emergency circumstances.[315] In most cases the Public Trustee would be the appropriate public official to appoint.

8. 9. 3. Who may take part in the hearing as a party?

This matter is discussed in relation to applications for guardianship orders in Chapter 6. 9. 3. If the person the application is about has a guardian, they should be given notice of the hearing.

8. 9. 4. What has to be proved before an order can be made?

Before it may make a management order ACAT must be satisfied that:

1. the person has impaired decision-making ability in relation to their financial matters or a matter affecting their property; and

2. there is, or is likely to be, a need for a decision in relation to the matter; or

3. the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and

4. if a manager is not appointed the person’s needs will not be met; or their interests will be significantly adversely affected.

Impaired decision-making ability and the person’s interests have the same meaning as set out in Chapter 6. 9. 3.

While a person’s impaired decision-making ability for management must arise from the same causes as for guardianship, the test for management requires an assessment of the person's level of understanding of their personal financial matters or matters affecting their personal property. The test is subjective in that sense and not a more objective “inability to make reasonable judgments” test that applies in Victoria, Tasmania and Western Australia.[316]

There is a specific restriction on ACAT’s power to appoint a manager for property in the Australian Capital Territory of someone who lives outside the Territory. ACAT may appoint a manager in these circumstances only if it is satisfied that it is impracticable for a manager for the property to be appointed in the jurisdiction where the person with impaired decision-making ability lives or that an order appointing a manager for the property under the law of the other jurisdiction cannot be registered under Guardianship and Management of Property Act 1991 (ACT).[317]

8. 9. 5. Appointing a financial manager

Any of the following may be appointed by ACAT as a manager of a person’s property in the Australian Capital Territory:

1. a private person 18 years or older,

2. the Public Trustee,

3. a trustee company, or

4. the Public Advocate.[318]

However, the Public Trustee, a trustee company or the Public Advocate may be appointed must not be appointed as the manager if an individual who is otherwise suitable has consented to be appointed.[319]

The private person may also be the person’s guardian or joint guardian.[320] Nevertheless, ACAT cannot consider a private person suitable for appointment as manager unless it is satisfied that that person will follow the decision-making principles, has provided certain information on oath and ACAT has taken into account a number of considerations.[321] These matters are discussed in Chapter 6. 9. 4.

The decision-making principles to be followed are:

1. the wishes of the person whose property is under management, as far as they can be worked out, must be given effect to, unless making a decision in accordance with those wishes is likely to significantly adversely affect the person’s interests,

2. if giving effect to those wishes is likely to significantly adversely affect the person’s interests—the manager must give effect to those wishes as far as possible without significantly adversely affecting the person’s interests,

3. if those wishes cannot be given effect to at all—the interests of the person must be promoted,

4. the protected person’s life (including the person’s lifestyle) must be interfered with to the smallest extent necessary,

5. those whose property is under management must be encouraged to look after themselves as far as possible,

6. those whose property is under management must be encouraged to live in the general community, and take part in community activities, as far as possible.[322]

Note, as suggested in Chapter 6. 9. 11, these principles require a manager to exercise “substituted judgment” and make decisions for the person whose property is under management according to their wishes unless to do so would be likely to significantly adversely affect the interests of that person. If the person whose property is under management is able to express views, the manager must apply a form of substituted judgment. It is only if the person whose property is under management is unable to express views that the manager is free to act as a substitute decision-maker and act in the way that they think is in the best interests of that person.

Whether acting as a maker of substituted judgment decisions or as a substitute decision-maker, there is a further limitation on the manager. Before making a decision, the manager must consult with each carer of the person whose property is under their management.[323] However, the manager must not consult with a carer if the consultation would, in the opinion of the manager, adversely affect the interests of the person whose property is under their management.[324]

8. 9. 6. Joint/several/replacement managers

Private persons may be appointed jointly as managers of the property of a person found by ACAT to have relevant impaired decision-making ability.[325] They will usually be required to act jointly only, but ACAT can specify that they may act severally in making decisions about the person’s property if necessary.

While there is no specific statutory provision for the appointment of replacement managers, ACAT has an implied power to do so. This is because it is required to conduct a review to consider the suitability of a person to be a manager as soon as practicable after the person becomes the replacement manager.[326]

8. 9. 7. Types of management orders

8. 9. 7. 1. Management orders in relation to all of the person’s property

ACAT may appoint a manager to manage all of the property of a person found to have relevant impaired decision-making ability. ACAT may also give that manager all the powers it is satisfied are necessary or desirable to allow the manager to make decisions in relation to the property of the person, in accordance with the decision-making principles.[327] Nevertheless, the Guardianship and Management of Property Act 1991 (ACT) specifically requires that the powers given to a manager of a person’s property are to be no more restrictive of the incapable person’s freedom of decision and action than is necessary to achieve the purpose of the order.[328]

In practice most management orders are plenary in effect to ensure that the manager can mange all aspects of the property of the person with impaired decision-making ability without having to return to ACAT to request extra powers when unexpected matters arise.

8. 9. 7. 2. Orders with part of the estate excluded

As an alternative, ACAT may appoint a manager to manage only a stated part of the property of a person found to have relevant impaired decision-making ability. As with a manager of the whole of a person’s property, ACAT may also give that manager all the powers that are necessary or desirable to allow the manager to make decisions in relation to the property, but only those powers that are no more restrictive of the incapable person’s freedom of decision and action than is necessary to achieve the purpose of the order.

Although most management orders made by ACAT are plenary in nature and apply to all of the person’s financial matters and property, ACAT’s ability to make orders applying only to a stated part of the person’s property is consistent with the least restrictive alternative provisions of the Act. In practice how it works is for the Tribunal to include all of a person’s property in a management order, except for a clearly stated part of it. This approach is sometimes used to allow a person with limited ability to manage their property and financial affairs to have control over their disability support pension or other social security income while an inheritance, a damages payment or other substantial sum and other related matters are managed on their behalf for their benefit and are protected against dissipation as a result of the importuning demands of others.

8. 9. 7. 3. Emergency management orders

ACAT can make emergency management orders, lasting no longer than 10 days, appointing the Public Trustee or the Public Advocate to be the manager of a person’s property, without holding a normal hearing. However, the Tribunal must be satisfied that there are special circumstances of urgency that make it proper to do so.[329]

The question of the degree of proof required in relation to whether:

1. the person the hearing has impaired decision-making ability in relation to their financial matters or a matter affecting their property,

2. there is a need to make a decision about that matter, and if a manager is not appointed, the person’s needs will not be met or their interests will be significantly adversely affected,

has not been resolved in relation to emergency management orders. There is no indication in the legislation that it should be any less than proof on the civil standard of the balance of probabilities. In any event, as the application is usually made by the Public Trustee or Public Advocate, it is accompanied by one or more doctor’s reports about the person’s decision-making ability and information, albeit often hearsay, about the other matters that ACAT has to be satisfied about, the information before ACAT usually meets the standard of proof required.

Unlike in New South Wales, in the Australian Capital Territory there is no provision for an interim financial management order pending further consideration of the person’s capacity to manage their own affairs. Such a provision allows a financial management order to be made where the current and urgent need for the order is clear but, while there is an evidential basis for believing that the person is incapable, there is insufficient evidence to prove that matter on the balance of probabilities at the time the order needs to be made.[330] However, in the Australian Capital Territory there is power to seek a form of injunction to restrain dealings which has some of the same protective effect. This is discussed in the next section, 8. 9. 8.

8. 9. 8. Injunctions to restrain dealings

In addition to its power to make emergency management orders for periods no longer than 10 days, the Tribunal has the power, on the application of another person, to make an order restraining a person from entering into, completing or registering or otherwise giving effect to a transaction with someone else in relation to the property of that other person. However, before it may do so, ACAT must be satisfied that there are grounds for making an appointment of a manager for the property of that person. ACAT does not have to be satisfied by the evidence before it that an order can and should be made. However, it must have before it material that provides an evidential basis for it to form a view that there are grounds for the appointment of a manager.[331]

Such an order can be made for a period of not more than three days. If, within that period, an application for the appointment of a manager is made to the Tribunal, it may continue the restraining order until the application is decided.[332]

8. 9. 9. Effect of a management order

The accepted position when an administration order is made is that the power of the person whose property is under management to deal with their property is suspended while the order is in force.[333] However, while acceptance of this position is implied by the Guardianship and Management of Property Act 1991 (ACT), that Act provides that if a person whose property is under management purports to enter into a transaction in relation to that property, the transaction is not necessarily void on the ground that the person was not legally competent to enter into the transaction. The person’s guardian or manager or some other person involved in the transaction may, within 90 days after the date of the transaction, apply to ACAT, the Supreme Court or the Magistrates Court. ACAT or either of those courts may by an order it considers just:

1. confirm the transaction; or

2. declare the transaction void; or

3. adjust the rights of the parties to the transaction.[334]

8. 9. 10. The role of Tribunal after making a management order

ACAT’s role in relation to management orders is, as in most of the States, not confined just to making and reviewing them. It may, on application, give directions, an opinion or advice to a manager about the exercise of their functions or powers.[335]

While managers must submit their accounts and other documents to the Public Trustee in the Australian Capital Territory and the Public Trustee must examine those accounts and documents, it is the role of the Tribunal to disallow any items in the accounts.[336]

8. 9. 11. Powers and functions of a financial manager

When ACAT appoints a manager to manage all or a part of a person’s property, it gives that manager all the powers it is satisfied are necessary or desirable to allow the manager to make decisions in relation to the property of the person, in accordance with the decision-making principles.[337]

Any act or omission of a manager acting under a management order or execution of a document (instrument) by them has effect as if it were an act, omission or document of the person whose property they are managing.[338] A manager may also read the will of the person whose property they are managing, unless ACAT orders otherwise.[339] This can help them in their decision-making in relation to the management of the person’s property.

The Guardianship and Management of Property Act 1991 (ACT) imposes the following obligations on managers to:

1. act, as far as possible, as the person would have acted in the circumstances if they did not have impaired decision-making ability,[340]

2. take into account the need to ensure that the person whose property is under their management does not become destitute,[341]

3. take into account the desirability of maintaining, as nearly as possible, the lifestyle of the person as if the person did not have impaired decision-making ability,[342]

4. exercise the power in the best interests of the person,[343]ensure that in the exercise of the power their own interests do not conflict with those of the protected person,[344] and

5. ensure, unless ACAT orders otherwise, that their own property is kept separate from that of the person whose property is under their management.[345]

If the property the manager has been appointed to manage includes real estate, the manager must lodge a copy of the management order with the Registrar-General.[346]

If the person whose property is being managed receives interest or income from that property or money from the sale of it, or obtains other property, for example as a bequest in a will or as a gift, whatever is received will be managed by the manager unless ACAT orders otherwise.[347]

A manager may only invest money that is part of the property they are managing in accordance with the requirements of the Trustee Act 1925 (ACT), unless ACAT permits otherwise in an order.[348]

Managers also have a discretion to pay out of the income or capital of a person’s property they are managing, reasonable amounts for the maintenance, advancement or education, or otherwise for the benefit, of the person and their dependants. In deciding whether to make a payment, the manager must take into account:

1. the views and wishes of the person whose property they are managing,

2. the amount and nature of the property to be paid out for these purposes,

3. the amount and nature of the person’s remaining property, and

4. the present and likely future needs of the person and any dependants they have.[349]

ACAT’s “Information for Managers” sets out the powers of managers the principles they should operate by and other matters, in further detail.[350]

On the anniversary of their appointment, managers must submit to the Public Trustee their accounts and other documents relating to their management of the estates they are managing. [351] The Public Trustee must examine those accounts and other documents.[352] There is no provision for the Public Trustee to report to the tribunal, ACAT or the Supreme Court, that appointed them as administrator.

8. 9. 12. Reviews of management orders

When the Tribunal appoints a manager, the appointment continues until:

1. the death of the person whose property is under management,[353]

2. ACAT removes the manager because it is satisfied that the manager is no longer suitable, competent, or has neglected to perform the duties and functions of manager, or has contravened a particular provision of the Act, or[354]

3. the manager resigns in writing given to ACAT.[355]

Nevertheless, ACAT must hold a review of (an inquiry into) each management order at least once every three years to see whether the order should be:

1. varied,

2. revoked on the ground that it is no longer needed, or

3. whether the manager should be removed.[356]

Such reviews may also be held as a result of an application or on ACAT’s own initiative.[357] Reviews must also be held if the manager dies or a replacement manger, provided for in the management order, becomes the manager.[358]

8. 9. 13. Parties to reviews of management orders

These reviews, whether periodic, requested or commenced on ACAT’s own initiative, are conducted by way of hearing.[359] Chapter 6. 9. 3 sets out those entitled to receive notice of and attend such hearings.

8. 9. 14. Powers of ACAT on review

After conducting a hearing to review a management order, it may:

1. vary the order,

2. revoke it on the ground that it is no longer needed, or

3. remove and replace the manager if they are no longer suitable to be a manager or no longer competent to exercise the functions or powers of a manager or have failed to exercise the functions or powers of a manager, or have contravened a provision of the Guardianship and Management of Property Act 1991(ACT). [360]

8. 10. Northern Territory

As both the Supreme Court and, in a more restricted way, the Local Court can make administration orders in the Northern Territory, the provisions relevant to both courts are set out in this part of the chapter.

8. 10. 1. Who has jurisdiction to appoint financial managers?

8. 10. 1. 1. The Supreme Court’s statutory and parens patriae jurisdiction

The Supreme Court of the Northern Territory may make an administration order, known in the Northern Territory as a “protection order”, in relation to a person who meets the criteria set out in the Aged and Infirm Persons’ Property Act 1979 (NT).[361] This jurisdiction of the Supreme Court may be exercised by a Master (Associate Justice) of the Court and not necessarily in open court but in chambers.[362]

The jurisdiction is in addition to any parens patriae jurisdiction that the Court has. It is not intended to remove or reduce that jurisdiction.[363] The Supreme Court’s inherent jurisdiction, including its parens patriae jurisdiction, was inherited from the Supreme Court of South Australia when the Northern Territory became a territory of the Commonwealth of Australia 1 January 1911.[364]

In a 2006 case, Mildren J noted that the Aged and Infirm Persons’ Property Act 1979 (NT) enabled the Supreme Court to make a protection order for the estate or part of the estate of a person. [365] It also enabled the Court to make such an order of its own motion in any proceedings relating to the estate of any party to those proceedings.[366] He then continued:

The Court has wide powers to make such an order where the Court is satisfied that it is necessary in the interests of the person concerned that his estate be protected. The Court, before making such an order, is required to take into account whether the person concerned is unable, wholly or partly, to manage his or her affairs or is subject to or liable to be subject to undue influence in respect of his or her estate or the disposition thereof. The Court may appoint the Public Trustee or anyone else whatsoever to be the manager of the estate and the order may be made subject to such terms and conditions as the Court thinks fit.[367]

The Aged and Infirm Persons’ Property Act 1979 (NT) makes it clear that the Supreme Court’s jurisdiction can be exercised if the person the application is about resides or is domiciled in the Territory; or, even if they are not resident or domiciled in the Territory, the estate that is the subject of the proceedings is situated within the Territory.[368]

8. 10. 1. 2. The Local Court’s guardianship related jurisdiction

In practice however, because of the costs involved in seeking a protection order in the Supreme Court, but more particularly because those who need guardianship orders often need administration orders as well, the question of the management of an incapable person’s estate is usually dealt with by the Local Court. Nevertheless, the magistrates have no power to appoint someone to manage the estate of an incapable person without first making a guardianship order in relation to that person.[369] The Adult Guardianship Act 1988 (NT) gives jurisdiction to the Local Court, at the hearing of an application for a guardianship order, to appoint the guardian or the joint guardians to manage the estate of the person under guardianship.[370]

8. 10. 2. Who may apply for an administration order?

8. 10. 2. 1. Application for a protection order in the Supreme Court

If an application is made to the Supreme Court for a protection order, it may be made by the following, without them first obtaining the leave of the Court:

1. the person in relation to whose estate the protection order is being sought,

2. a spouse or de facto partner of that person, a near relation by blood, marriage or de facto relationship of that person or an adopted child of that person, or

3. the Public Trustee.[371]

With the leave of the Court, any person may make an application for a protection order.[372] Also, as already noted, the Court may, of its own motion, and in any proceedings, make a protection order.[373]

8. 10. 2. 2. Management orders in the Local Court

As the Local Court can appoint as managers only those guardians it has appointed, there is no separate provision about who may apply for such orders. Consequently, those who may apply for a guardianship order may also indicate that they are seeking a management order when they make their application for a guardianship order. The people who may apply, and the process that is commenced by the making of an application , are set out in Chapter 6.10. 2 and 6. 10. 3.

8. 10. 3. Who may take part in the hearing as a party?

For matters being dealt with by the Local Court under the Adult Guardianship Act 1988 (NT), see Chapter 6. 10. 4.

For matters being dealt with by the Supreme Court under the Aged and Infirm Persons’ Property Act 1979 (NT), notice of the application made to the Court or the intention of the Court to make a protection order of its own motion must be served the personally on the person to whose estate is the subject of the application or proceedings and on such other persons as the Court may direct. However, the Court may if it is satisfied that special circumstances exist, direct that service of notice not be carried out and may hear or determine any such proceedings as though such service had been carried out.[374]

When conducting proceedings under this Act, the Supreme Court has a wide discretion as to how it goes about this. It may examine personally the person whose estate the proceedings are about in any manner which it thinks fit either with or without the attendance of any other person.[375] Additionally or alternatively, it may order an investigation and report.[376]

8. 10. 4. What has to be proved before an order can be made?

For matters being dealt with by the Local Court under the Adult Guardianship Act 1988 (NT), this is set out in Chapter 6.10. 5.

For matters being dealt with by the Supreme Court under the Aged and Infirm Persons’ Property Act 1979 (NT), the Court must not make a protection order unless it is satisfied that the person whose estate is the subject of the proceedings is:

1. by reason of age, disease, illness or mental or physical infirmity in a position which renders it necessary in their interests or in the interests of those dependent on them that their estate be protected, and

2. in determining whether the person’s estate should be protected, to take into account whether the person is wholly or partly unable to manage their affairs or is subject to or liable to be subject to undue influence concerning their estate or the disposition of it. [377]

When the Supreme Court makes a protection order under the Act, it may make the order subject to such terms and conditions as it thinks fit.[378]

8. 10. 5. Appointing a manager

Before it may appoint the guardian of the person to also manage their estate, the Local Court has to be satisfied that the guardian is competent to manage the person’s estate. The Court may make the order subject to such terms and conditions as it thinks fit.[379] Such management orders are very common. A survey conducted in 2005 showed that more than 90% of those subject to guardianship orders in the Northern Territory also had their guardian appointed as manager of their estate. The Public Guardian is regularly appointed manager in these circumstances.

However, if the Court is not satisfied that the guardian is competent to manage the person’s estate, it cannot appoint another person to act in their place. Instead, it may order that the Public Trustee or some other person make an application under the Aged and Infirm Persons’ Property Act 1979 (NT) to the Supreme Court for a protection order.[380]

When the Supreme Court is appointing a manager under the Act, it may appoint either the Public Trustee alone or one or more private persons.[381]

8. 10. 6. Joint/several/alternate financial managers

When the Supreme Court is appointing managers under the Aged and Infirm Persons’ Property Act 1979 (NT), there is no provision for alternate managers or managers to act severally. The Act specifically provides that where more than one manager has been appointed, all the managers of the estate must concur in every act, matter and thing done in relation to the estate by any manager of the estate.[382] This provision counsels in favour of having only one and no more than two managers.

8. 10. 7. Types of financial management orders

8. 10. 7. 1. Plenary orders

The effect of the Aged and Infirm Persons’ Property Act 1979 (NT) is to allow the Supreme Court to make a protection order covering the whole of a person’s estate for the whole of their life. So the Court may make plenary orders. However it may also make the order in relation to part only of the person’s estate and subject to such terms and conditions it thinks fit. It may also vary or rescind a protection order.[383] Consequently, the Court has considerable discretion about the extent of the person’s estate to be covered, the longevity of the order and its terms and conditions, including the power to give the person whose estate is being protected leave to deal with all or part of their estate.

On the other hand, management orders made by the Local Court appear to be plenary in power and to cover all of the person’s estate. However, the Local Court may vary or terminate a management order at any time.[384]

8. 10. 7. 2. Orders in relation to part only of the person’s estate

As already noted, the Supreme Court may make protection orders covering part only of a person’s estate.[385] The Local Court does not appear to have this power when it appoints a guardian as the manager of the estate of the person under their guardianship.

8. 10. 7. 3. Interim orders

The Supreme Court does not have power under the Aged and Infirm Persons’ Property Act 1979 (NT) to make interim protection orders pending further consideration of a person’s capacity to manage their own affairs. However, the Court would be able to exercise its powers to issue interim injunctions or other orders to protect a person’s property pending its decision whether or not to make a protection order.

The Local Court does not appear to have this power when deciding whether to appoint a guardian as the manager of the estate of the person under their guardianship.

8. 10. 8. Powers and functions of a financial manager

Both the manager of an estate appointed under protection order by the Supreme Court and the guardian appointed also as the manager of the estate of the person under their guardianship by the Local Court have the same powers and liabilities of a manager.[386] These powers and liabilities are set out in the Aged and Infirm Persons’ Property Act 1979 (NT).[387] In addition to its powers under that Act, the Supreme Court has been willing to rely on its parens patriae jurisdiction to order that an award to a woman with an intellectual disability, who needed her estate to be protected, be held in trust and to appoint someone outside the jurisdiction (the Public Trustee of Western Australia) to act as trustee.[388]

A guardian appointed as a manager is required, at least once a year, to give the Executive Officer an account of the management of the person's estate, showing assets and liabilities and receipts and payments in relation to the estate. The Executive Officer is required to report on the management of the estate to the Local Court at the time the guardianship order is reviewed.[389]

8. 10. 9. Effect of a protection order or management order

8. 10. 9. 1. Protection orders made by the Supreme Court

A protection order made under the Aged and Infirm Persons’ Property Act 1979 (NT) renders the person the order applies to incapable of dealing with any part of their estate that is covered by the order, for example by charging or otherwise disposing of it. However, the person can buy necessaries or deal with their estate with the leave of the Supreme Court. Any other transaction will be void, of no effect and unenforceable unless the transaction was for valuable consideration and the other party to it acted in good faith and without actual notice of the protection order.[390]

8. 10. 9. 2. Management orders made by the Local Court

The Adult Guardianship Act 1988 (NT) is silent on the effect of a management on the capacity of the person the subject of the order dealing with their financial affairs and property. However, the common law position is that the power of a person whose financial affairs are placed under administration to deal with their estate is suspended for the duration of the order.[391]

8. 10. 10. Reviews of financial management orders

Because the Executive Officer is required to report to the Local Court on the management of the estate at the review of the guardianship order in relation to the person, management orders made by the Local Court are, in effect, reviewed at least every two years.[392] At such a review, the Court may vary or terminate the appointment of a guardian as the manager of the estate of the person under their guardianship.[393]

8. 10. 10. 1. Requested reviews

Applications to vary or revoke protection orders made by the Supreme Court under the Aged and Infirm Persons’ Property Act 1979 (NT) can be made by the same people, subject to the same limitations, as can make applications for such orders.[394] Those may attend and take part in the hearing are the same as those who may have taken part in the original hearing.[395] Such reviews can also be undertaken, on its own motion by the Supreme Court.

The Local Court may, at any time, vary or terminate the appointment of a guardian as the manager of the estate of the person under their guardianship.[396] However, as there is no process for initiating such an application, an application would have to be made to review the guardianship order upon which the management order is based.[397] Those able to take part in the review of the guardianship order would be entitled to notice of, and to attend, such a requested review.[398]

8. 11. General matters

8. 11. 1. Purpose of administration orders

It is well established in the common law and has been restated a number of times in Australia in the late 20th century that administration orders are to be made only where it is desirable to do so for the benefit of the person with the decision-making disability and not for the benefit of others.[399] Even then there is a discretion as to whether or not to make the order.[400] Administration orders are also to be made to protect those incapable of managing their property and affairs from exploitation.[401]

The High Court has noted there will be cases in which a person who has lost capacity because of the injuries they have received through proven or admitted negligence will receive an award of damages to compensate them for losses past, present and future caused by that negligence. Where such a person will never be able to manage their financial affairs they will need an administrator. That administrator will have to invest the damages and act with reasonable diligence. Consequently, they will incur expenses in performing those tasks. Because the incurring of those expenses is a direct result of the negligence, the damages to be awarded to place the person, so far as possible, in the position they would have been in if the tort had not been committed will include an amount assessed as providing for the remuneration and expenditures properly charged or incurred by the administrator of the fund during the intended life of the fund.[402]

8. 11. 2. Who may apply for an order

The legislation in all States and the Northern Territory sets out who may apply for an administration order and who may apply for its review or revocation. Sometimes there will be no family members or friends either at all or any prepared to make the application for an administration order. Sometimes family members or “new found friends” of incapable people will be exploiting them financially and this may only come to light through accident or the observation of others not related to the incapable person. Consequently, it is necessary in the best interests of incapable people for there to be a range of people who can apply for administration orders on their behalf.

Where a person in this position has a solicitor, the New South Wales Guardianship Tribunal has been willing to accept an application from the solicitor as a person who has a genuine concern for the person the application is about. This practise has been beneficial to some who need administration orders, but it should be used with caution, and avoided altogether if it is known that the incapable person opposes such an application or there is possibility that they will recover their capacity to such an extent that they may be able to appreciate that their affairs are under management and that that was something they did not want.

In a 1993 case, Powell J observed that it was undesirable that a solicitor should put themselves in an adversary position with their clients if their conditions could be cured or controlled and they might wish to oppose the order.[403] However, he went on to acknowledge that there may be occasions when there was no one other than the incapable person’s own solicitor who was either willing or able to commence proceedings for the appointment of an administrator. Nevertheless, he went on to suggest that the preferable course in these circumstances was for the solicitor to invoke the good offices of a friend of the client, or even of one of the trustee companies and have them bring the application.[404]

8. 11. 3. Who should have notice of the hearing of the application?

The legislation in most States and the two Territories sets out who should be given notice of the hearing of the application and be able to attend. However, in 1846 Lord Eldon noted:

Those to whom the Crown has confided the exercise of this jurisdiction have thought, and in my judgment they have rightly thought, that it is greatly to the advantage of lunatics, generally speaking, that all the next of kin and the heir at law should be present when the proposals for committees of the estate and of the person are discussed. In their absence many cases would be decided in total ignorance of, or only with a partial and imperfect acquaintance with, those circumstances a thorough knowledge of which is necessary to enable the Lord Chancellor to determine whether the plans he is required to sanction, will be beneficial, or detrimental, to the unfortunate persons on whose account they are framed.[405]

8. 11. 4. Tests for making administration orders

In all States and Territories of Australia there are statutory criteria that must be satisfied before the various courts and tribunals which have jurisdiction to make administration orders may make such orders. They all require the proof of “incapacity”- a term which is given different names in the different Acts.

8. 11. 5. The incapacity criterion

The test set out in the New South Wales Supreme Court case PY v RJS is seen as of great assistance in determining whether the statutory “incapacity” criterion has been met.[406] The test has been repeatedly applied in New South Wales both in terms of determining whether a financial management order should be made or whether, on review, the order should remain in place or be revoked.[407] In PY v RJS Powell J, explaining why he was not going to make an administration order in relation to a man with schizophrenia, said:

[A] person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:

(a) that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of people; and

(b) that, by reason of that lack of competence there is shown to be a real risk that either:

(i) he or she may be disadvantaged in the conduct of such affairs; or

(ii) that such moneys or property which he or she may possess may be dissipated or lost;

it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner.[408]

Like the man in PY v RJS, others have difficult lives living in ways that most of us could not tolerate, but that does not mean that they have lost capacity to manage their financial affairs. Ms W was essentially homeless and relied on others to provide her with accommodation over night. By the end of most days she was intoxicated and sometimes she had her money stolen and sometimes she was assaulted. Others, who had through their actions long proven that they had a genuine concern for their welfare, applied to the New South Wales Guardianship Tribunal for an administration order in relation to her. She refused to come to the hearing. The only evidence about her capacity was a mini-mental state examination in which she scored 28 out of 30. Other evidence showed that she actively chose to spend most of her income on alcohol and that she was able to obtain accommodation. As the Tribunal was not satisfied that she had lost her capacity, did not make an order in relation to her.[409]

In another case in which the Tribunal was not satisfied that a person had lost their capacity to manage their financial affairs, a husband was unable to deal with the divorce proceedings brought by his wife to end their marriage. He was able to continue to run his business. While he was not dealing with one important aspect of his financial affairs, the evidence did not show that he had lost his capacity to manage his financial affairs and the Tribunal dismissed the application for an administration order in relation to him.[410] It should be noted however that in Queensland at least where the incapacity may relate to a particular financial matter, it may be possible to make an administration order only in relation to that particular financial matter if impaired capacity for that matter is proved.[411]

In dealing with the test for making an administration order in the Supreme Court of New South Wales, Porter and Robinson have noted that:

It is very significant that the section does not limit the nature of the disability and therefore an order could be made in the case of someone who has become incapable of communicating because of quadriplegia through trauma, but whose cognitive or reasoning abilities could remain quite unimpaired.[412]

There has been an apparent difference of view between the Supreme Courts of New South Wales and Victoria about whether the proper test for capacity is the “objective” test of Powell J in PY v RJS or a more “subjective” test adopted in Victoria in which capacity is seen as more related to the personal circumstances of the person the application is about.[413] As Cavanough J of the Supreme Court of Victoria noted in a 2006 case, under the subjective test it was necessary to measure the person’s ability against their actual property and affairs however extensive, complex or demanding they may be, rather than against an objective standard such as “the ordinary routine affairs of man” (the New South Wales test).[414] Cavanough J noted that the Victorian provision applicable to a broader range of persons than the equivalent New South Wales provision; however he took the view that the proper tribunal to deal with applications in Victoria was VCAT, and sent the matter back to it to decide.[415]

Cavanough J shared the concerns of other Supreme Court and Court of Appeal judges in Victoria about the reach of the Victorian provision. He referred specifically to 1982 report upon which the Victorian Parliament relied in framing the Guardianship and Administration Act 1986 (Vic) quoting part of the report that a determination that a person was incapable of managing their financial affairs should not operate to mean that:

[A] bad investor or unsuccessful entrepreneur should not lose control of his estate, nor should the person who simply lacks an interest in money matters be the subject of an estate administration order. It is the person whose capacity is lacking or is severely impaired who may be in need of this type of protection. (Cavanough J’s emphasis)[416]

He also referred to the 1992 Victorian Court of Appeal case which noted that the authority that may be conferred on an administrator under the Victorian Act effectively commits to the administrator total control over the property of the person the order was about, but that control and its extent may be limited by virtue of the extent of the powers and duties given to the administrator in the order made by VCAT.[417] The Court of Appeal went on to comment that while there would be cases in which the jurisdiction of [now VCAT] may be justifiably invoked, administration orders “are calculated to achieve, at the instance of any person at all, a far-reaching deprivation of the freedom of action not only of represented persons but of near relatives of such persons.”[418] The Court also noted that the Guardianship and Administration Act 1986 (Vic) prescribed very important safeguards against the making of inappropriate administration orders. These included the requirement that VCAT’s jurisdiction be exercised so that its orders were the least restrictive of the freedom of decision and action of the person the order was about as was possible in the circumstances, that the best interests of that person were promoted and their wishes were given effect to wherever possible.[419]

When the matter was reheard in VCAT, the Deputy President in charge of the Guardianship List, J.C. Billings, made a number of helpful, general remarks about administration orders before going on to discuss whether the test for capacity was subjective or objective.[420] He said:

If it were open but also necessary for me to choose between these Victorian and New South Wales decisions, I would respectfully prefer Re McGregor for the reasons set out in that case.[421] However, section 46(a)(ii) of the Guardianship and Administration Act 1986 (Vic) contains further words that really distinguish these cases and reinforce the subjective nature of the test. Those words are “all or any part of her or his estate” (emphasis added). This surely involves the Tribunal considering the person’s capacity in relation to his or her actual estate and not “ordinary routine affairs”.[422]

Billings DP went on to note that the issue whether the subjective or objective test was applied was important in the context of the legislation being interpreted in the New South Wales cases, because it was considered that applying the subjective test would make it more difficult for a person to establish that they were now capable and so able to resume management of their own affairs. However, he also suggested that the need to resolve the issue in terms of the Victorian Act was not so strong because a person who had capacity in relation to that part of their estate comprising ordinary routine affairs but who lacked capacity in relation to certain complex aspects of their estate could, “depending on ‘need’ and the other usual matters”, be made the subject of an administration order limiting the administrator’s power to managing only the complex part of the estate.[423]

In support of the New South Wales objective test, Campbell J referred to the concerns about the subjective test expressed by Powell J. In a 1988 case, predating the establishment of the Guardianship Tribunal, Powell J said:

I find myself unable to accept that the intention of the Parliament, as expressed in the Protected Estates Act 1983(NSW), was that a person who does not suffer from mental illness, mental infirmity, mental retardation or some other like condition, but who, although otherwise capable of leading a normal life and managing his affairs, is, for some reason, as, for example, a limited education, incapable of managing or administering a large or complex estate which may fortuitously come his way, should be liable to be deprived by the Court of all power to manage his life and affairs.[424]

In a 1999 case Young J expressed a similar view. He noted that the subjective test was whether the alleged incapable person was able to manage their own affairs as they exist in actuality, and continued:

Accordingly, a multi-millionaire with complex affairs would be more likely to be declared an incapable person than a pensioner living in a retirement village without any property interests.[425]

In the same case Young J suggested that it was easier for an “alleged incapable person” to be found to be still capable under the New South Wales “objective” test than under the Victorian “subjective” test.[426] He also noted that the “ordinary routine affairs of people” encompass matters such as “dealings with one’s home and the issues relating to health insurance, pensions and choice of financial advisers” and that for the “alleged incapable person” to be reasonably competent as required under the PY v RJS test, they would need to be able to:

1. either personally carry out these tasks, or

2. be reasonably discerning in their choice of assistance, which assistance might be from a family member and/or professional advisers, and

3. be reasonably discerning in their capacity to evaluate the advice from such assistance.[427]

In reality, and partly because of the cautions expressed by the judges of the Supreme Court of Victoria and the “glosses” on the PY v RJS made by judges of the Supreme Court of New South Wales set out below, the difference between the two tests in terms of the evidence considered by the court or tribunal determining particular cases, and the decisions they reach on the facts of those cases, may not be very great.[428]

In an unreported 1997 case Hodgson J commenting on the test in PY v RJS agreed with Powell J that the first element of the test namely that because of the lack of competence of the person the hearing is about there is a real risk that they may be disadvantaged in the conduct of their financial affairs, has to be judged without reference to the difficulty or complexity of the person’s affairs, but he continued:

I do not think [Powell J’s] view, however, means that the complexity and difficulty of the person’s affairs cannot be taken into account in assessing the risk which has to be considered under the second element; and, of course, there is no reason why that aspect, that is the complexity and difficulty of the person’s affairs, should not be taken into account in any element of discretion that the Court may have.[429]

In a 2000 case in which Young J was not satisfied that a man, who had had serious head injuries for which he had received substantial damages, had recovered his capacity to manage his own affairs, he said:

[T]he ordinary affairs of mankind do not just mean being able to go to the bank and draw out housekeeping money. Most people’s affairs are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and ones family, and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills.[430]

In Queensland, QCAT must be satisfied that the adult person the hearing is about has impaired capacity for a financial matter, among other things, before it may make an administration order.[431] The Guardianship and Administration Act 2000 (Qld) contains a long list of financial matters.[432] While most administration orders made in Queensland cover all aspects of the property and financial affairs of the person the order is about, the test for capacity is subjective in nature.

Whether or not a person the subject of an application meets the criteria for making an administration order is not restricted to a consideration of the matters as the stand on the day of the hearing. The court or tribunal hearing the matter is “both entitled and required to consider what the position will be in the reasonably foreseeable future”.[433]

8. 11. 6. Deciding the incapacity issue

In most cases, the incapacity of the person the hearing is about will be beyond question and not in contention. Nevertheless, the court or tribunal will need to have before it some medical or other appropriate evidence to satisfy it that the person has sufficient incapacity for it to be able to proceed to consider the other criteria it must be satisfied about before deciding whether or not to make an order. The evidence of those lay to medicine, particularly about what the person can and cannot do in terms of attending to their financial affairs and avoiding the blandishments of others and other risks, can be very important on this matter. This was hinted at by Cavanough J in XYZ v State Trustees Ltd when he also noted that VCAT had gone beyond the legitimate use of expert evidence and had inappropriately delegated to the expert the responsibility that lay with it to decide the capacity issue.[434]

Billings DP took up the matter of capacity assessment in the XYZ Case when it came back to VCAT for rehearing and, in doing so, noted the claim that it neuropsychological examinations have moderately good success in predicting money management ability and performance on an important component of instrumental activity of daily living in the form of automated machine usage, but may fall down on other quality of life type issues.[435]

As a 2006 decision from the Tasmanian Guardianship and Administration Board shows, getting into serious financial difficulties because of drinking and gambling addictions will not necessarily prove incapacity and inability to make reasonable financial judgments. In that case the medical evidence indicated that

any incapacity that the person the hearing was about had was likely to be due to alcohol use rather than being due to dementia or brain injury. If the person were to stop drinking altogether, then it would be likely that there would be very little residual incapacity and that the person would “be able to attend to all normal functions at all times”.[436] On the disability issue the Board stated:

The Board was not satisfied that when [the person the hearing was about] is sober, he is a person with a disability; that is the Board did not receive any conclusive evidence that [the person] has experienced any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function. Even if we were satisfied that there may be an underlying depression or early stage brain damage, we could not be satisfied that by reason of that disability he is incapable of making reasonable financial judgments.[437]

8. 11. 7. The need criterion

In four States, New South Wales, Victoria, Tasmania and Western Australia, the tribunal or court making the order has to be satisfied that the person the hearing is about is in need of another person to manage their financial affairs before it may make an administration order in relation to that person.[438]

As already noted, Cavanough J of the Victorian Supreme Court has stated that, generally speaking, the question of “need” is answered primarily by reference to the availability or otherwise of alternative arrangements outside administration (such as family support) to compensate for or deal with the person’s identified “inability”.[439]

On the question of the need for an administrator criterion and the least restrictive alternative criterion, Underwood J of the Tasmanian Supreme Court noted in a 1998 case that once it was established that the person the hearing was about was under a disability and because of that was unable to make reasonable judgments about matters relating to all or part of their estate, it would almost invariably follow that there was a need for an administration order. However, because Parliament had directed the Tasmanian Guardianship and Administration Board to consider, not only the need for an administrator to manage and protect the estate, but also all the other needs of the person the hearing was about, if after having done this, the Board reached the view that all the person’s needs could be satisfied by means less restrictive of their freedom of action and decision than would be the case if an administration order was made, then an administration order should not be made. Underwood J commented that his construction reflected the philosophy apparent in the Guardianship and Administration Act 1995 (Tas) namely that control over and restriction on a person under a disability is to be kept to a minimum.[440]

Underwood J’s approach was followed in Western Australia in 2001 in a case decided by a panel the then Guardianship and Administration Board of Western Australia which included its president and deputy president.[441] However, the Western Australian Board expanded on Underwood J’s views. They noted that while the need for an administrator (or guardian) would usually follow from the existence of disability, they stressed that the mere fact that a person has a disability that makes them unable to make reasonable decisions does not automatically mean that they are “in need of an administrator” (or guardian). The person may have no assets that require administration or their assets may be in a joint account which their spouse can access and use for the person’s benefit. Their pension may be sent by Centrelink to a nominee to use for the person’s benefit. The person may have appointed an attorney under an enduring power of attorney while they were still capable or a formal trust or court order may be in existence, avoiding the need to appoint an administrator.[442]

The Western Australian Board also noted that the phrase "needs of the person" in the Guardianship and Administration Act 1990 (WA) was the same as that term in the Tasmanian Act as interpreted by Underwood J, but took the matter further.[443] That Board noted that the term “needs of the person” was of wide import and encompassed all the wants and necessaries of the person. The Board also noted that there was a two step process. The tribunal deciding the matter had first to determine whether there was a need for an administrator (or guardian) and then move on to the issue of whether, notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person could, nevertheless, be met under informal arrangements which were less restrictive of the person's freedom of decision and action.[444] The Board continued:

The first step is the question whether the basic requirements for making an order have been satisfied, that is, whether an order could be made on the facts of the particular case. The second … is the question whether there is any alternative to making an order, that is, whether an order should be made.[445]

It is suggested that the same approach applies as a result of the legislative provisions and common law applicable in the other States and Territories of Australia.

It is the established practice of the New South Wales Guardianship Tribunal that if there are currently satisfactory informal arrangements in place for the management of an incapable person’s estate and these are continuing to operate and will be able to continue to operate into the foreseeable future, then there will be no need to make an administration order. Young J supported the approach of the Tribunal in a case in which he noted that when a tribunal or a court is exercising its discretion as to whether or not to make an administration order, it should bear in mind that ordinarily members of the community consider that (the appointment of a family member as administrator) or the appointment of an outside manager is a measure of last resort.[446]

The recent reform of powers of attorney legislation in some Australian States, particularly in relation to enduring powers of attorney, had as one of its goals the encouragement of people to make enduring powers of attorney in anticipation of a time when they might lose their decision-making capacity either temporarily or permanently. By appointing an attorney under an enduring power of attorney, the appointor (sometimes called the principal or the donor) has the dignity of appointing the person they want to manage their financial affairs when they are incapable of or no longer wish to manage those affairs.[447] While this will work well in most cases, there will be occasional difficulties. Enduring powers of attorney are discussed in Chapter 10.

However, as Cohen J of the Supreme Court of New South Wales pointed out in a 1998 case, that where a now incapable person’s solicitor is also their attorney, it is difficult not to have a conflict of interest. One difficulty is that the solicitor would have no one who could give them instructions about their charges and no one would be able to authorise the payment of the fees which they might charge. Cohen J considered the “checklist of considerations” summarised below at 8. 11. 13, particularly the advantage of appointing the now NSW Trustee in these circumstances. He declared the appointor incapable of managing her affairs, ordered that her estate be subject to management under the since repealed Protected Estates Act 1983 (NSW) and ordered that the then Protective Commissioner (now NSW Trustee) be appointed manager of her estate.[448] In relation to the appointment of professionals as attorneys under enduring powers of attorney he stated, in particular, that:

In any event I think a professional person who becomes an attorney is put in a very difficult or even impossible situation.[449]

In Queensland and the Australian Capital Territory the need criterion is expressed as the needs of the incapable person not being met without the appointment of an administrator.[450] Nevertheless, the same considerations that lead a tribunal or court to be satisfied as to the need for an administration order in the other States and the Northern Territory seem to be relevant in Queensland at least. There, in a 2003 case, the tribunal that is now QCAT was satisfied that there was a need to appoint an administrator for the person the hearing was about because without an appointment his needs would not have been adequately met and his interests not adequately protected. The medical evidence showed that he was unable to manage his own finances. There were concerns “that other people could take advantage of [the person] if they got hold of his details” and there was a substantial debt owing on his car that had to be addressed.[451]

8. 11. 8. The best interests criterion

There is a “best interests” or “interests” criterion to be met before an administration order is made in all the Australian jurisdictions except South Australia and the Local Court in the Northern Territory.[452] In Western Australia the best interests criterion is found in the principles of the Guardianship and Administration Act 1990 (WA).[453]

In a 1986 case involving a young man blinded and significantly brain damaged in a motor vehicle accident the question was whether to appoint as financial managers of his estate the parents and carers or to commit his estate to the management of the then Protective Commissioner. Citing English and New South Wales cases as authority, Powell J said:

It is … a commonplace that questions arising for determination in the Protective Division of the Court are determined solely by reference to the interests of the particular defendant, the Court's overriding duty being to ensure that that defendant's estate is so managed as to serve that defendant's best interests.[454]

Young J has taken the view that the consideration of “best interests” in relation to administration orders must include taking into account the welfare, health and well-being, in a wide sense, of the person the hearing is about. Also, what is in their interests means what is for their personal benefit and not for the benefit of their family or friends or estate.[455]

8. 11. 9. Onus of proof

In the courts the onus of proof lies on the person applying for the order to be made, or for it to be revoked.[456] However, if a tribunal conducting its proceedings in a less formal manner, taking a more inquisitorial approach and informing itself of the matters to be decided in the manner it thinks fit that is consistent with the requirements of procedural fairness, it will be up to the tribunal to be satisfied that the statutory criteria have been met rather than the applicant having to prove that they have been.

8. 11. 10. Standard of proof

The standard of proof required in both courts and tribunals is on the balance of probabilities tempered by the effects of the nature of the application, the subject-matter of the particular case, the gravity of the matters alleged and the strength of the evidence.[457]

However, when dealing with applications to revoke administration orders, the Supreme Court of New South Wales has taken a careful approach to people awarded substantial damages for brain injuries who subsequently seek to by free from administration in order to spend the money awarded. As Young J pointed out in a 1999 case, the court is always wary when someone awarded damages for permanent brain damage in a motor vehicle accident case a few years later wishes to take up the position that, having got those damages they should now be free to spend them.[458] In a 2000 case Young J noted that a person who wished to show that seven years after the damages were assessed for head injuries, things have changed to such an extent that despite their injuries, they were then able to manage their own affairs bears a very heavy onus.[459]

In a 2005 case, Campbell J of the Supreme Court of New South Wales pointed out that in deciding whether an applicant for revocation of an administration order had discharged their onus of establishing that they were capable of managing their own affairs, it was legitimate to take into account the seriousness of their making a mistake which wasted capital. A very important factor was the extremely long pension preclusion period, often many decades and in that case nearly 22 years. Campbell J conceded that any member of the community managing their own affairs is at some risk of making a financial mistake, but noted that for most members of the community the seriousness of making such a mistake is alleviated by the fact that, even if the mistake is a very serious one which results in their bankruptcy, they still have, in many cases, the capacity to earn a living up to retirement age, and usually, if they are unable to earn their living or are past retirement age, they have a right to support of a rudimentary kind from social security.[460]

8. 11. 11. Who to appoint as administrator – a “checklist” of considerations

In the leading New South Wales Court of Appeal case on the appointment and removal and replacement of administrators, Kirby P noted that it was inappropriate for the discretion to appoint or remove administrators to be confined by rigid rules or even “guidelines” expressed in general terms.[461] Nevertheless, he did suggest, but without limiting the possibility of other applicable considerations, a checklist of considerations that might be kept in mind.[462]

It is suggested that these are relevant to all Australian jurisdictions, but must be read so as not to change or reduce the effect of any statutory criteria dealing with the appointment of administrators. The checklist deals with considerations relevant to the appointment of both private persons and public bodies as administrators. It is summarised below as follows:

1. The appointment of an administrator invites the exercise of a discretion that derives from legislation and must be exercised keeping in mind the purposes of the legislation. The exercise of the discretion should not be narrowed to apply only to certain circumstances because other discretions were so limited because of other legislation,

2. An application for the removal of a person validly appointed as a manager will not invoke the same discretion as the initial appointment of a manager. It will normally be necessary for the party seeking a change in the status quo to show some reason why the court or tribunal dealing with the matter should do so,

3. The abiding rule in the exercise of powers under guardianship and administration legislation is the achievement of best interests of those for whom guardianship or administration orders have been made,

4. Where it is shown that a person appointed as manager is incompetent or has acted in a relevant way improperly or unlawfully, the court or tribunal may terminate the appointment and appoint another manager,

5. Ordinarily, a person who would face a conflict of interest and duty would not be appointed a manager of a person's estate. However, in some family situations, inter-related property interests may present such conflicts. Sometimes they will be more apparent than real. They do not necessarily present an absolute bar to appointment as a manager for otherwise this would exclude from consideration a range of family members who were in every other way appropriate,

6. When weighing up the competing advantages of appointing a family member or the statutory body authorised to act as an administrator, for example the State Trustees Ltd in Victoria, the (now NSW Trustee) in New South Wales, the Public Trustee in Queensland, South Australia, Tasmania, Western Australia and the Australian Capital Territory, or the Public Guardian or Public Trustee in the Northern Territory, to manage the estate of a person incapable of managing their own financial affairs, the court or tribunal may take the following into account as relevant:

(a) the appointment of the public official has the following advantages:

(i) the manifest independence of the statutory office;

(ii) the advantages of a dispassionate and neutral approach where there is a potential for family conflict and sharply divided views concerning the best interests of the person;

(iii) the expertise of the staff of the statutory body, their experience in managing estates, the know how accumulated by them over time and their impeccable reputation; and

(iv) the security provided to the estate against loss or damage,

(b) the appointment of a family member has the following advantages:

(i) the size and complexity of the estate: in a smaller estate it may often be appropriate to appoint a family member who will be entirely familiar with the assets and liabilities and readily able to manage them with greater economy and possibly free of cost to the person. (Public officials are entitled to and ordinarily do recover their fees.),

(ii) the capacity of the incapable person, to interact with their, so far that as possible, they may remain in charge of, or at least be able to influence, the broad directions of the management of the estate,

(iii) the ingredient of love and affection and unquestioning devotion to the person which an appropriate family member can add to the task of management. Whilst the office of manager is, by its definition, concerned with proprietary and financial matters and involves the prudent control of the property and like interests of the protected person, in the nature of things the manager of the estate of an incapable person is more likely than a general trustee or receiver to become involved in decisions which affect that person's quality of life. A lifetime knowledge of the person and a devotion to his or her interest may contribute to that quality. It may more readily be secured by the appointment as manager of a family member with the requisite knowledge and motivation;

(iv) any special features of the case which may require particular attention, and

(v) any special qualities of the applicants to act as managers will be relevant.

7. Different considerations may affect the management of an estate comprised of few liquid assets when contrasted to one which enjoys substantial and regular income. The court or tribunal appointing a manager from the family of the incapable person, should satisfy itself that the income and (where necessary) the capital assets of that person's estate are devoted to the incapable person's interests. Especially where the bulk of the estate is made up of a verdict calculated by reference to the protected person's expectation of life and as compensation for injuries, disabilities, pain and suffering and loss of the enjoyment of life it is appropriate that the capital and income should be expended, as intended, to advance the quality of life of the incapable person rather than to increase in due course the assets of their family.[463]

Kirby J noted that he may have overlooked considerations which would be relevant to particular cases and then repeated that it was undesirable that, by rules or guidelines, the broad discretion of appointment and revocation should be controlled.[464]

Particularly when dealing with an initial application for an administration order but also relevant when reviewing an order, dissension in the family, provided that the conflict goes beyond “typical family differences”, can be a reason a public official may be appointed administrator over a relative in the best interests of the person the hearing is about. So can the lack of business ability on the part of the relative proposed as administrator. The best interests of the person the hearing is about remains the abiding rule and it is not necessary for the tribunal or court dealing with the matter to expressly find that the relative proposed as administrator was deficient in their ability to act as administrator before moving to appoint a public official or a non-relative.[465]

In what could be seen as a high-water mark example of the discretion to replace a manager, in 2000 Hodgson J of the New South Wales Supreme Court found that the relationship between the mother and primary carer of a man the management of whose estate had been committed to the (now NSW Trustee) had broken down and could not be restored. This had adverse consequences for the man and his estate because his mother could not deal directly with the then Protective Office. She engaged solicitors to do this, incurring very substantial costs that were paid out of her son’s estate. Although Hodgson J found no material breach of duty by the then Protective Commissioner, he considered that the history of the particular estate did not suggest that there was any significant advantage to the man in retaining the then Protective Commissioner as manager, rather than appointing a reputable trustee company. Consequently he replaced the then Protective Commissioner as manager with a trustee company even though there was likely to be a small financial disadvantage to the estate and the possibility that the relationship between the mother and the trustee company could break down in the future. Hodgson J considered that on balance, the advantage in removing a manager outweighed any disadvantage involved in the appointment of the new manager.[466]

In a 2002 case Windeyer J of the New South Wales Supreme Court followed Hodgson J’s approach, and replaced the then Protective Commissioner as manager with a trustee company.[467] He pointed out that it was not his intention to decide that an order for a change of managers was justified by annoyance or minor complaint or even a justified complaint. He noted that such matters were often able to be dealt with by the Court giving directions under the now NSW Trustee and Guardian Act 2009 (NSW).[468] Windeyer J also noted that for general management of the estate of a sometimes difficult person, the long experience of the (now NSW Trustee) is valuable.[469]

There were three matters that led him to change managers. The first was the lack of continuity of managers in the Office of the then Protective Commissioner which causes distress when relationships are built up and then severed without consideration of the effect on the person whose affairs are under management and their family or others who are providing services or support to them. The second was that the trustee company’s financial plan was likely to be more beneficial to the person whose affairs were under management than the then Protective Commissioner’s financial plan. The third matter was the uncertainty of the fees to be charged by the then Protective Commissioner.[470] This last matter has been resolved since Windeyer J’s decision. There is a cap on the fees that the NSW Trustee may charge, but she may charge fees for specific services.

8. 11. 12. Appointing private managers

In a 2000 case, Young J of the New South Wales Supreme Court pointed out that:

[I]f a responsible member of the incapable person's family, with the consent of other members of the family and particularly when joined with a person with financial expertise, seeks to be the manager, such an order will, at least at present, usually be made almost as of course.[471]

Nevertheless, before a court or tribunal may appoint them as an administrator, it has to be satisfied that they are a “suitable person”. In the same case the Young J said:

In the case of a relative, the Court must look to see that there are minimal conflicts of interest, or, if conflicts of interest cannot be avoided, that they are properly dealt with. In the case of a private manager who purports to have financial expertise, the Court needs to be satisfied not only of that person's good fame and character and of his or her ability generally to manage funds, but also that that person has a good conception as to what is required of a fund manager.[472]

In another case he also decided in 2000, Young J was more specific about what a court or tribunal considering appointing a private manager had to be satisfied about, particularly if the estate involved a large amount of money. He said that the court or tribunal had to be satisfied that:

1. any “so called” financial expert has, in fact, expertise to allow him or her to assist the incapable person in the circumstances of the particular case; and

2. any relative has either no conflicts of interest or, alternatively, the conflicts of interest are able to be handled by appropriate guidelines from the (now NSW Trustee).[473]

Young J also noted that there would always be some conflict arising in the management of the estates of incapable people. Some of these may be benign conflicts as shown in the English case Re W.[474] Other potential conflicts can arise from deciding whether small donations should be made to charities or whether gifts should be made to relatives for Christmas and things of that nature. Young J noted that most of those can be dealt with sensibly by directions of the (Supreme Court or now NSW Trustee) or by management plans developed by the (now NSW Trustee) where the Guardianship Tribunal makes the financial management order.[475]

Young J also noted that while it was “most acceptable” that a parent who is the financial manager of a person who cannot manage their own affairs lives in the same house as their adult child rent free, care needs to be taken that the manager is not receiving a substantial benefit at the expense of the incapable person.[476] Some potential conflicts of interest or conflicts within families do not prevent the appointment of a family member as administrator while others make the appointment of an independent public official as administrator essential. It depends on the facts in each case.[477]

For the assistance of financial managers generally, Young J also noted the Supreme Court “does not countenance” people obtaining damages on the basis that certain improvements to their house are absolutely necessary and then not substantially carrying out those improvements with the verdict money they receive.[478]

8. 11. 13. Effect of administration orders

As stated in the David Case, the common law position on the effect of an administration order made by a court or tribunal is that the power of a person whose financial affairs are placed under administration (a protected person) to deal with their estate is suspended, for the duration of the order, in relation to so much of that estate as is placed under management of those appointed to administer it.[479] For a discussion of the effect of administration orders on the right of the person whose estate is under management to deal with that estate is dealt with in Chapter 3. 3. 5. 3.

The estate of the person does not vest in the administrator. It remains the property of the person the administration order is about. This is the position established in the common law, but it is specifically referred to in the legislation of some of the States and the two Territories.[480]

8. 11. 14. Functions and powers of administrators

8. 11. 14. 1. Does the administrator have all the functions and powers that the person whose estate they are administering would have if they were capable?

In Queensland, unless the terms of their appointments limit them, administrators are authorised to do anything in relation to the estate they have been appointed to administer that the person whose estate it is could have done if they had capacity.[481]

In New South Wales, the NSW Trustee may do all these things if appointed financial manager (administrator), subject to any limiting directions given to her by the Supreme Court in relation to a particular estate.[482] However, a private financial manager, as already noted at 8. 3. 11 above, has only those functions and powers given then in an order by the NSW Trustee.[483] The Supreme Court may also make such orders.[484]

In the Australian Capital Territory, ACAT may give a person’s manager all the powers the person with impaired decision-making capacity would have in relation to their property if they were competent.[485]

It is suggested that subject to any specific limitations in the legislation of the other States or the Northern Territory, administrators either automatically have, or may be given, by the relevant, tribunal, court or other authority any functions or powers the person whose financial affairs are under management would have in relation to their property either real or personal. These functions and powers are set out in relation to some of the States and Territories in 8. 3. above, but the next section sets out the functions, powers and requirements of administrators that apply in Queensland. It is suggested that they are at least guidelines to administrators in the other States and the two Territories as to their functions and powers and as to how they should operate as administrators.

8. 11. 14. 2. The functions and powers and requirements/obligations of administrators

For the assistance of family members and friends who are appointed as administrators in Queensland, Guardianship and Administration Act 2000 (Qld) sets out a series of powers, functions and requirements of administrators.[486] As noted in the last section, it is suggested that these apply equally to administrators, financial managers and managers appointed in the other States and Territories of Australia. These are set out below.

Administrators must apply the general principles of the legislation under which they are appointed.[487]

Administrators must exercise their powers and functions honestly and with reasonable diligence in order to protect the interests of the person whose estate they have been appointed to administer.[488] They must also exercise their powers as required by the terms of the order appointing them.[489]

Administrators should avoid entering into transactions which would result in a conflict between the duty they owe as an administrator towards the person whose estate they have been appointed to administer and:

1. their own interests, or

2. the interests of those with whom they have a close personal or business relationship, or

3. another duty they have as the person’s administrator.[490]

An example of this is the administrator buying the car of the person whose estate they have been appointed to administer. Administrators should enter into such transactions only if authorised to do so by the tribunal or other body (in New South Wales the NSW Trustee) supervising their administration.

Where two or more persons are appointed as administrators of the estate of an incapable person, they should consult with one another regularly to ensure that the interests of the person whose estate they have been appointed to administer are not prejudiced by a breakdown in communication between them.[491] Because of this possibility, where there is conflict in a family relating to a person for whom an administration order is being made, careful consideration should be given before appointing as joint administrators those family members who are in conflict with one another or who may become so as they are representatives of differing factions within a family. This is particularly so in those States and Territories in which the joint managers “must concur in every act, matter or thing done in relation to the estate by a manager”.[492]

In Queensland administrators have a right to all the information the person whose estate they have been appointed to administer would have been entitled to if they had capacity and which is necessary for the administrator to have in order to make an informed exercise of the particular powers they have as administrators. Also, if an administrator requests such information, a person who has custody or control of that information must give it to the administrator, unless the person has a reasonable excuse for not doing so.[493]

Furthermore, if the person who has custody or control of the information does

not give it to the administrator, the administrator may apply to QCAT for an order that the person give the information to the administrator. If QCAT makes such an order the person must give the information to the administrator unless they have a reasonable excuse for not doing so. A person has a reasonable excuse if giving the information might tend to incriminate them. This provision specifically overrides any restriction, in legislation or the common law, about the disclosure or confidentiality of information; and any claim of confidentiality or privilege, including a claim based on legal professional privilege.[494]

The privacy legislation of the Commonwealth and some of the other States and Territories, is sometimes relied upon to deny administrators (and guardians) information they need to make the decisions they are authorised to make under the terms of their appointments. This is not the purpose of such legislation, but its drafting is usually complicated and its administration so conducted that authorised substitute decision-makers are sometimes denied necessary information with outcomes that contradict the intended effect of the modern guardianship and administration legislation.

The Queensland legislation also provides that where it is necessary or convenient for the exercise of power given to an administrator, they may execute an instrument with their own signature or, if sealing is required or seal; and do any other thing in their own name, provided that they execute the instrument in such a way that shows that they executed it as administrator.[495]

Consistent with this approach, if an administrator is empowered to do a thing, they have the power to execute a deed to do the thing.[496]

Private administrators are entitled to reimbursement from the estate of the person whose estate they have been appointed to administer for any reasonable expenses they incur while acting as administrator, while those who carry on businesses as administrators, trustee companies and Public Trustees are entitled to remuneration for the provision of their services.[497]

Administrators must keep records that are reasonable in the circumstances and be able to produce them to their supervising authorities when asked to do so.[498] There are different rules in each State and Territory about the kinds of records administrators must keep and when they have to present them. However, administrators need to be able to show how they have been managing the estate they have been made responsible for. Even if the estate is that of a close relative or of a family member who has never been able to manage their own affairs, the estate remains the property of that person. It does not become the property of the administrator. They have no legal or equitable interest in the property, only the obligation to manage it in the best interests of the person the administration order is about. This is why administrators must keep the estate property separate from their own property, unless the administrator owns the property jointly with the person the administration order is about.[499]

Administrators may invest money from the estate they are administering but only in investments that a trustee investing under trustee legislation may invest in. However, they may continue the existing investments of the person whose estate they are managing and taking up rights to issues of new shares, or options for new shares, arising from existing shareholding.[500] In some States and Territories they may obtain approval to invest outside the ambit of the trustee legislation.

Administrators may give gifts from the estates they are managing but usually only if the gift or donation of the nature the person whose estate is being managed made when they had capacity or was a gift or donation of the nature the person might reasonably be expected to make and the gift’s value is not more than what is reasonable having regard to all the circumstances, particularly the person’s financial circumstances.[501]

Administrators may provide from the estates they are managing for the needs of the dependants of those whose estates they are managing. However, what is provided must not be more than what is reasonable having regard to all the circumstances, particularly the financial circumstances of those whose estates they are managing.[502]

It is well settled that where a person does not have the capacity to marry, no court or tribunal or substitute decision-maker such as an administrator or guardian can consent to marriage on behalf of an adult who lacks the capacity to marry. [503] However, the question has arisen as to whether an administrator may commence proceedings on behalf of the person whose estate they are managing to dissolve a marriage or have it declared void or seek a property settlement or a legal separation.[504] This matter is discussed in Chapter 2. 5 and 2. 6.

The role of the administrator comes to an end at the death of the person whose estate they are managing and their affairs are then administered by their executor or by anyone else authorised by the relevant Supreme Court to manage their estate.[505] However in some States, the administrator has some leeway to continue to act after death.[506]

8. 11. 14. 3. Administrators for legal proceedings

In Western Australia, WASAT may make plenary administration orders or orders limited to specific functions. In 2001 the then Guardianship and Administration Board of Western Australia noted:

If the only issue is the conduct of litigation which is either underway or contemplated, the usual order of the Board is to appoint a limited administrator with the authority to conduct legal proceedings on behalf of the represented person (the person the hearing is about).[507]

For those States and the Australian Capital Territory where it is possible to appoint an administrator for the purpose of conducting or defending litigation on behalf of an incapable person, the recent consideration of capacity to litigate by English judges may be useful. The settled view in England is that the question of capacity to litigate is not something to be determined in the abstract. The focus has to be on the particular piece of litigation in relation to which the question of capacity arises. The question is always whether the person has capacity to litigate in relation to the particular proceedings in which they are involved.[508] The issue is addressed by asking three questions:

1. does the litigant have the mental ability to recognise the problem,

2. can the litigant obtain and receive, understand and retain relevant information, including advice, and

3. can the litigant weigh the information (including that derived from advice) in the balance in reaching a decision.[509]

In a 2002 case Chadwick LJ rejected the submission that a person who was incapable of taking investment decisions in relation to a large sum received as compensation would be held, for that reason, to be incapable of pursuing a claim for that compensation. He accepted that capacity to pursue a claim required capacity to take a decision to compromise that claim and that that capacity to compromise required an understanding of what the effects of a compromise would be. To be capable of litigating the person would have to understand that the compensation monies would have to be dealt with so as to provide for the future. But the person would not have to have an understanding of how that would be done.[510]

In New South Wales, if the estate of an incapable person has already been committed to the management of the NSW Trustee, she may bring or defend legal actions in any court or tribunal in New South Wales on behalf of the person whose estate the order is about.[511] If a private person has been appointed as the manager of an incapable person’s estate, the NSW Trustee may authorise the manager to bring or defend legal actions in any court or tribunal in New South Wales on behalf of the person whose estate the order is about.[512]

Now that the New South Wales Guardianship Tribunal has an unencumbered discretion to exclude specified parts of an estate from the administration order, it may be able to make an order limited to the administrator bringing or defending legal actions in courts or other tribunals .[513] Nevertheless, the practice of applying to the court or tribunal in which the litigation is to be commenced or is already under way to appoint another person to commence or defend legal action brought by or against the incapable person as the incapable person’s tutor, next friend or litigation guardian may be continued.

8. 11. 14. 4. Payments for past care given gratuitously

In a 2004 case in the New South Wales Court of Appeal, McColl JA noted that the decisions made by judges applying the common law were founded on the proposition that the courts exercised their protective jurisdiction to manage an incapable person’s estate for the benefit of that person, but took “a large and liberal” view of what that benefit was and that it included not only what may benefit the incapable person directly, but what that person “as a right-minded and honourable” would desire to do. Consequently, payments for past gratuitous care could be made, where appropriate, in the exercise of the court’s inherent jurisdiction but also in the exercise of its statutory jurisdiction.[514]

8. 11. 15. Reviews of administration orders

The courts and tribunal empowered to make administration orders in the various States and Territories also have the power to review such orders and, and where they are provided, apply the statutory criteria that are set out for dealing with those matters. They will also apply the common law that has not been replaced by or rendered inappropriate by the legislation they operate under.

While some administration orders are revoked on review, in most cases the person the order is about remains incapable of managing their property and affairs and in need of an administrator for the rest of their lives. Usually an administration order, once made, remains the least restrictive way of achieving the best interests of the person the order is about. As already noted, the judges approach applications by those awarded substantial damages for brain injuries assessed to be permanent to have the administration orders in relation to them revoked with a degree of skepticism, particularly if the evidence indicates a tendency in the person to spend beyond the ability of their award to sustain or that the person has had a range of money-making plans and a disinclination to take financial advice.[515]

The risk of being unable to obtain income support through the Australian social security system because of lengthy pension preclusion periods, is a particular problem for those who have received substantial awards of damages based on the likelihood that, because of their injuries, they would not be able to obtain or maintain employment. However, treating it as a legitimate matter to take into account in deciding whether an applicant for revocation of an administration order had discharged their onus of establishing that they were capable of managing their own affairs, raises the question of paternalism that concerned Cavanough J of the Supreme Court of Victoria and Miles CJ of the Supreme Court of the Australian Capital Territory.[516]

As Cavanough J pointed out in the XYZ Case, there are three separate and cumulative requirements for making an administration order, the first being satisfaction by the tribunal that the person the hearing is about is a person with a disability.[517] If this matter is not proved to the satisfaction of the tribunal deciding the matter, then the tribunal proceeds no further and dismisses the application. The question then becomes, if there is an application to review, rehear or reassess the order with a view to revoking it and the evidence satisfies the tribunal that the person is not currently a person with a disability, does this mean that the tribunal must revoke the order without considering any other matters including the risks to the person the order applies to of revoking the order?

It is suggested that the answer depends on the way the legislation of the particular State or Territory is framed. In Victoria, if Cavanough J’s opinion is applied to applications seeking revocation of an order, the answer would have to be yes. Tasmania’s legislation is very similar to that of Victoria on this matter, so the answer would be yes there.[518]

Elsewhere in Australia the answer is likely to be no as the determination of incapacity involves an assessment of both the person’s disability and the effect of that disability. In New South Wales the Court or the relevant tribunal must be satisfied that the person is capable of managing their own affairs, a requirement that involves a consideration not only of the person’s disability but also the effect of that disability on their capacity to manage their own affairs.[519] The same consideration is required in South Australia and the Australian Capital Territory.[520] In the Northern Territory, because the definition of intellectual disability requires not only a disability but also inability to make reasonable judgments or informed decisions arising from that disability, the Local Court would have to consider both matters before revoking an order.[521] The Supreme Court of the Northern Territory would apply the common law to any application to revoke a protection order. However, once the court or tribunal is satisfied that the person is capable of managing their affairs, it should discharge the administration order even though it may appear to have a discretion in the legislation not to do so.[522] As Young J pointed out in 1999 case involving a woman whose financial affairs were committed to the then Protective Commissioner in 1990 as a result of injuries she received in a motor vehicle accident, whose preclusion period was over and who wanted to invest in a noodle business:

There is no room in the legislation for benign paternalism. A person is allowed to make whatever decision she likes about her property, good or bad, with happy or disastrous effect, so long as she is capable.[523]

In Western Australia, WASAT may revoke an administration order if it considers that to do so is necessary in the best interests of the person the order is about.[524] This necessarily involves a consideration of the consequences of revoking an order. However, if the person still meets the first criterion for the making of an order namely that they still have a mental disability by reason of which they are unable to make reasonable judgments about matters relating to all or part of their estate, then it would be unlikely that WASAT would revoke the order. On the other hand, if the evidence showed that either they no longer had a mental disability or that disability did not prelude them from making reasonable judgments, then the foundation requirement for making an order would have disappeared and the statutory presumption that the person was capable of managing their affairs would be in effect.[525]

In Queensland the question does not arise because of the particular processes QCAT must go through when reviewing an administration order as a result of a periodic, own motion or requested review. QCAT is required to revoke the order at the end of the review unless it is satisfied that it would have made the order on a new application. Consequently, at the end of the review it must be satisfied that the person still has “impaired capacity” for one or more financial matters meaning that the person is not capable of understanding the nature and effect of decisions about a financial matter, some financial matters or all financial matters or is not capable of freely and voluntarily making decisions about one or more financial matters before it may renew the order.[526]

8. 12. The assessment of financial capacity: the role of the expert

8. 12. 1. Understanding the concept

Financial capacity comprises a broad range of conceptual, pragmatic and judgmental abilities that distinguish it from more simple and less cognitively demanding types of decision-making which are primarily verbally mediated. Its complexity renders it an “advanced” or “higher order” activity of daily living (ADL) compared with basic or household ADLs such as shopping, housework or bathing. Notwithstanding the inherent complexity of the construct, some estates are more complex to manage than others; and, some people are more involved in the management of their own affairs than others. Thus, financial abilities vary across individuals depending on their socioeconomic status, occupational attainment and financial experience.[527],,[528],[529] Further, even within the financial capacity construct, there may be partial or limited competency such that a person may be able to do some things like write cheques or handle small amounts of money, but not handle more complex investment and financial decisions. [530] The expert must understand, however, that the extent to which the individual’s unique circumstances are considered by the tribunal or court rather than a generic concept of dealing with everyday financial matters of man (i.e. the subjective or the objective test) depends on the jurisdiction in which the expert is operating. For a consideration of the tests developed by the judges see, 8. 11. 5 which deals with the incapacity criterion.

8. 12. 2. The legal tests

When asked to perform an assessment of a person’s capacity with regards to administration or financial management, the expert must direct themselves to the question of what needs to be proved in their relevant jurisdiction for an order to be made. The basic elements of the tests for incapacity in financial management are disability, incapacity, need and best interests, although these are required in variable combinations in the different jurisdictions across Australia. A suggested approach to the assessment of each of these elements will be outlined.

8. 12. 2. 1 Disability

Some form of disability must be present for a financial manager to be appointed in the Victorian, South Australian, Western Australian, Tasmanian, Australian Capital Territory and Northern Territory jurisdictions. While tribunals in New South Wales and Queensland do not require demonstration of disability, provision of this information will usually assist with understanding the basis of incapacity issues.[531] Although the crucial evidence usually relies on an explanation of how the disability impacts on the person’s ability to manage their affairs (i.e. the person’s capacity), an assessment of the nature and severity of the disability is extremely useful in placing the capacity issues in context.

A 2006 decision from the Tasmanian Guardianship and Administration Board illustrated the importance of establishing the type of disability underlying incapacity. The decision showed that getting into serious financial difficulties because of drinking and gambling addictions will not necessarily prove incapacity and inability to make reasonable financial judgments. In that case the medical evidence indicated that any incapacity that the person the hearing was about had was likely to be due to alcohol use rather than being due to dementia or brain injury. If the person were to stop drinking altogether, there it would be likely that there would be very little residual incapacity and that the person would “be able to attend to all normal functions at all times”.[532] On the disability issue the Board stated:

The Board was not satisfied that when (the person the hearing was about) is sober, he is a person with a disability; that is the Board did not receive any conclusive evidence that (the person) has experienced any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function. Even if we were satisfied that there may be an underlying depression or early stage brain damage, we could not be satisfied that by reason of that disability he is incapable of making reasonable financial judgments.[533]

What sort of disabilities cause absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function? The range varies enormously and may include dementia, head injury, developmental disability and chronic mental illnesses such as schizophrenia. Financial abilities have been shown to be impaired in the early stages of dementia, if not Mild Cognitive Impairment (a prodromal phase before the onset of dementia, characterised by subjective and objective memory loss, normal performance on general cognitive tests and generally preserved activities of daily living).[534],[535]

8.12.2.2 Incapacity

As stated previously, common to all jurisdictions in the making of financial management orders is the requirement that the person is incapable of making their own decisions or “reasonable judgments” in regards to financial matters. How can these functions be assessed? Billings DP took up the matter of capacity assessment in the XYZ Case [536] when it came back to VCAT for rehearing and, in doing so, noted several important issues addressed here including:

(a) the limitations of the Mini Mental State Examination(MMSE)in assessing capacity; and

(b) the relationship between neuropsychological test data and real life functioning.

8. 12. 3. The assessment of capacity

8. 12. 3. 1. Mental status

Obtaining the person’s psychiatric history and making or obtaining an assessment of their mental status to exclude symptoms of mental illness relevant to financial decision-making such as abnormalities of mood (e.g. depressed or manic states) and thought content (e.g. grandiose delusions or grandiosity or delusions of poverty) is essential to the assessment of financial capacity

8. 12. 3. 2. General cognitive screens

As emphasised by Sullivan, the MMSE, which is a general screening tool, was not developed to assess capacity.[537] Its use in capacity assessments is a subject of debate due to its cost effectiveness and substantial literature base on the one hand, against its insensitivity, reliance on education and language skills and its failure to test executive functions on the other hand.[538],[539],[540] In regards to the latter, the MMSE does not adequately assess abilities crucial to capacity determinations such as the foresight, planning and task execution skills necessary to take care of one’s property or to one’s manage funds.[541]

Not withstanding these limitations, the MMSE can be a useful means of documenting general cognitive abilities and of estimating the severity of cognitive decline. However, it must supplemented by tests of executive or frontal lobe function (e.g. judgment, planning and reasoning). Sullivan has argued persuasively for the need for a two stage capacity assessment involving an assessment of general cognitive ability followed by a specific measure of capacity. There are several reasons for this. They include the relationship between general cognitive abilities such as memory and decision-making ability; the better documentation, knowledge base and standardisation of general ability tests compared with specific measures of capacity; and finally, that a good general ability assessment may provide insights into why a person failed a specific ability test.[542]

8. 12. 3. 3. Neuropsychological testing

Neuropsychological testing is clearly far more comprehensive than “bedside screening” tests such as the MMSE, in that it usually incorporates a detailed assessment of attention, memory, language, visuospatial abilities and most importantly, executive function. However, like the MMSE, neuropsychological testing was not developed to assess questions of legal capacity.[543] A commonly cited shortcoming of even detailed neuropsychological testing is its lack of ecological validity (i.e. the difficulty extrapolating from testing to real life). In the XYZ Case [544] Billings DP showed insight into this very issue, acknowledging statements by Crowe that neuropsychological examinations have moderately good success in predicting money management ability and performance on an important component of instrumental activity of daily living in the form of automated machine usage, but may fall down on other quality of life type issues. [545] Crowe commented further that the most appropriate way to assess how someone functions in the real world is to move in with them for a month and watch how they cope in their daily lives, while acknowledging the impracticality of such a statement.

What are the neuropsychological correlates of financial abilities? One proposed model of financial capacity contains three elements:

1. Declarative knowledge – the ability to describe facts, concepts and events related to financial activities (e.g. knowledge about currency, personal financial data, interest rates, loans);

2. Procedural knowledge – the ability to carry out motor-based, overlearned practical skills and routines (e.g. making change, writing cheques); and

3. Judgment – the ability to make financial decisions consistent with self-interest both in everyday and novel or ambiguous situations.[546]

It is judgment which is probably most complex and therefore vulnerable to the effects of neurodegenerative disorder. For example, in subjects with mild cognitive impairment (MCI), financial ability correlated with attention and executive function (i.e. planning, task initiation and persistence, judgement), and it is likely that the basis of functional change in MCI may not be amnestic (i.e. based on memory), but rather, emergent declines in the abilities to selectively attend, self monitor and temporally integrate information (“working memory”), and abstract reasoning.[547] This further emphasises the need to test executive functions and, even more specifically, conceptual understanding of finances rather than over-learned, pragmatic cash transaction skills, which rely on procedural memory (memory for well-learned routines) which are often relatively well preserved until later in the course of neurodegenerative disease.

8. 12. 3. 4. Instruments

The appeal of purpose-built tests of financial capacity is that they measure the specific competency task we wish to assess, in this case the ability to manage financial affairs. A specific instrument to measure financial capacity has only recently emerged but has contributed significantly in shedding light on the nature of the financial capacity construct. The financial capacity instrument (FCI) is a standardised psychometric instrument based on a conceptual model of the financial capacity construct which assesses 14 tasks of financial ability comprising six clinically relevant domains of financial activity, including:

1. Domain1: Basic Monetary skills

a. Naming coins/currency

b. Coin/currency relationships

c. Counting coins/currency

2. Domain 2: Financial Conceptual knowledge

a. Define financial concepts

b. Apply financial concepts

3. Domain 3: Cash transactions

a. 1-item grocery purchase

b. 3-item grocery purchase

c. Change /vending machine

d. Tipping

4. Domain 4: Chequebook management

a. Understand chequebook

b. Use chequebook/register

5. Domain5: Bank statement management

a. Understand bank statement

b. Use bank statement

6. Domain 6: Financial judgment

a. Detect mail fraud risk

b. Detect telephone fraud risk

7. Domain 7; Bill payment

a. Understand bills

b. Prioritize bills

c. Prepare bills for mailing

8. Domain 8:.Knowledge of personal assets/estate arrangements

9. Domain 9: Investment decision making [548],[549]

The instrument yields scores for each domain as well as a total score. Patients with mild Alzheimer’s disease (AD) performed significantly below controls on all domains except Basic Monetary skills, while patients with moderate AD performed below norms on all tasks.[550] Mild Cognitive Impairment (MCI) participants demonstrated impairments in Financial Conceptual knowledge, Cash Transactions, Bank Statement Management and Bill Payment, although these impairments were mild and may only apply to a subset of patients with MCI.

Although administering such an instrument in its entirety may be beyond the scope of a standard capacity assessment, many of the tasks can be useful to guide the clinician in devising questions which might specifically test financial capacity (see below).

8. 12. 3. 5. Need and best interests

As previously stated, tribunals or courts in New South Wales, Victoria, Tasmania and Western Australia, have to be satisfied that the person the hearing is about is in need of another person to manage their financial affairs before it may make an administration order in relation to that person.[551] Further, New South Wales, Victoria, Tasmania, and Queensland have a “best interests” or “interests” criterion to be met before an administration order is made.[552] Sometimes health professionals will be able to provide evidence as to need or best interests, depending on how well they know the patient and their social milieu and functioning. It is sometimes useful to consider such issues in terms of the risk or consequences of not making an order. For example, is the person not meeting their everyday needs? Are alternative informal arrangements with regards to management of affairs working? Is the person being exploited financially?

8. 12. 4. Report writing

A suggested outline for medicolegal report relating to financial management is outlined in BOX 8.12.14:

A suggested outline for medicolegal report relating to financial management is outlined in BOX 8.12.14:

Box 8.12.4

Suggested outline for report writing for assessment of ability to manage financial affairs

Expertise : An outline of the health care professional’s background or expertise that they are bringing to the assessment

Is there a diagnosis or disability? If so, provide basis for that diagnosis (i.e. psychiatric history, results of mental status examination and cognitive assessment, and/or results of neuropsychological testing). Why, as a result of that diagnosis might the person be incapable (e.g. frontal lobe/decision making/planning/judgement, calculation, overspending, delusions of poverty or grandiosity)?

Severity: An estimate of the severity of the disability/intellectual disorder

Specific testing of financial capacity: Does the person know their assets? Can they read a bank statement? Can they use a chequebook? Can they identify currency and its relative value? May use the Financial Capacity Instrument (8.12.3.d) as a guide to ensure all domains are covered such as Basic Monetary skills, Financial Conceptual knowledge, Cash transactions, Chequebook management, Bank statement management, Financial judgment, Bill payment, Knowledge of personal assets/estate arrangements, Investment Decision making [NB Need some corroborative information regarding assets to check veracity of responses.]

Need and/or best interests Is there a need or is it in the best interests of the person – depending on the jurisdiction (e.g. Can they afford food? Do they pay crucial bills such as rent, electricity, water rates or a crucial accommodation bond)? Are they at risk of exploitation or dissipation of the estate by others? If they are unfamiliar with their financial affairs or have never managed their own affairs, have they made appropriate alternative arrangements for the management of their estate? Is there an alternative or informal arrangement already in place (e.g. a family member looking after their affairs, a Power of Attorney, an accountant)?


[1] Aged and Infirm Persons’ Property Act 1979 (NT), ss 11 and 12.

[2] Gardner; re BWV [2003] VSC 173, [99], 7 VR 487.

[3] For the Supreme Court see, NSW Trustee and Guardian Act 2009 (NSW) s 41; for the Guardianship Tribunal see, Guardianship Act 1987 (NSW) s 25E and for the Mental Health Review Tribunal see Mental Health Act 2007 (NSW) s 34 and the NSW Trustee and Guardian Act 2009 (NSW) ss 43-50.

[4] McI v McI (1987) 10 NSWLR 243, 244-245.

[5] Guardianship Act 1987 (NSW) ss 25D-25U.

[6] See Courts and Crimes Legislation Further Amendment Act 2008 (NSW) Sch 16 and the Second Reading Speech relating to the bill for that Act, Hansard Transcript ( NSW), Legislative Council, 27 November 2008, Second Reading , 6.

[7] XC v Protective Commissioner [2006] NSWADTAP 64.

[8] Guardianship Act 1987 (NSW).s 25I.

[9] Uniform Civil Procedure Rules 2005 (NSW), Part 57.

[10] Porter, B and Robinson, M, Protected Persons and their Property in New South Wales, Sydney, Law Book Company, 1987, 41-42. As an example of an application by a “stranger” see, In the Matter of an Alleged Incapable Person (1959) 77 W.N. (NSW) 156.

[11] Ibid. s 59.

[12] Ibid. ss 67 and 67A and Administrative Decisions Tribunal Act 1997 (NSW) s 67(2A), (2B) and (2C).

[13] Guardianship Act 1987 (NSW) s 58.

[14] Ibid. s 3F(5)

[15] Ibid. s 57A.

[16] Uniform Civil Procedure Rules 2005 (NSW), Part 57.

[17] Guardianship Act 1987 (NSW) s 25G.

[18] NSW Trustee and Guardian Act 2009 (NSW) s 41(1).

[19] Ibid.

[20] Uniform Civil Procedure Rules 2005 (NSW), Part 57 and NSW Trustee and Guardian Act 2009 (NSW) s 41(2) and (3). See also Porter and Robinson op cit (footnote 12), 39-51.

[21] Guardianship Act 1987 (NSW) s 25M (Guardianship Tribunal) and NSW Trustee and Guardian Act 2009 (NSW) s 41(1) (Supreme Court).

[22] Uniform Civil Procedure Rules 2005 (NSW), Part 57 and Porter and Robinson op cit (footnote 12), 46-47.

[23] Holt v Protective Commissioner (1993) 31 NSWLR 227, 238. In Re R [2000] NSWSC 886, [48] Young J said: “The authorities show that if one can have members of the family manage an incapable person’s estate then that is often the preferred course”. However, the court or tribunal appointing the private manager has to be satisfied as to other matters. See 8. 11. 13 and 14.

[24] Holt v Protective Commissioner (1993) 31 NSWLR 227, 238-239.

[25] Ibid. 241.

[26] See 8. 11. 13.

[27] Ibid. 339.

[28] SH v Protective Commissioner [2006] NSWADTAP 4 [25]. The Tribunal on the other hand has considered that it has a complete discretion to appoint either a private manager or the Protective Commissioner under the “abiding rule” of achieving the best interests of the person whose estate is to be placed under management. See, Matter no 2003/2438 (unreported, Guardianship Tribunal, 16 December 2003).

[29] Guardianship Act 1987 (NSW) s 25M.

[30] RAP v AEP [1982] 2 NSWLR 508. For an example of this becoming apparent during the course of an administration order see, Matter no. 92/0799 (unreported, Guardianship Board (Tribunal), 10 April 1992).

[31] Guardianship Act 1987 (NSW) s 25H.

[32] Ibid. s 25H(1)and (2).

[33] Ibid. s 25H(2)(b).

[34] Ibid. s 25H(2)(a).

[35] Ibid. ss 6K(3) and 25H(1).

[36] Ibid. s 25H(1) and Powers of Attorney Act 2003 (NSW) s 37(1).

[37] Ibid. s 25H(3). For an example of an interim order resolving the problem and overcoming the need for a final order see, Matter no. 92/1808 (unreported Guardianship Board (Tribunal), 22 July 1992).

[38] Drew v H [1999] NSWSC 610 [8]-[9]. Ridgeway v Darwin [1802] EngR 423; (1802) 32 ER 275, 276.

[39] Drew v H [1999] NSWSC 610 [15]. See also, DW v CB (unreported, NSW Supreme Court, Powell J, 12 August 1992).

[40] Mental Health Act 2007 (NSW) ss 4 and 27.

[41] Ibid. and s 34.

[42] The following statement is set out under the heading, “What happens at a mental health inquiry?” in Schedule 3 of the Mental Health Act 2007 (NSW):

If Mental Health Review Tribunal makes an order that you are to remain in a mental health facility as an involuntary patient, Mental Health Review Tribunal must also consider whether you are capable of managing your financial affairs. If Mental Health Review Tribunal is not satisfied that you are capable, an order must be made for the management of your affairs under the NSW Trustee and Guardian Act 2009 (NSW).

Note that under ss 44, 45 and 46 the Mental Health Review Tribunal has to be satisfied that a patient is not capable of managing their (financial) affairs before a management order may be made in relation to them. See 8. 3. 8. 2 below.

[43] Ibid. ss 34 and 76 and Schedule 2 Item 2; Mental Health Regulations 2007 (NSW) cls. 5 and 7 and Form 2.

[44] Mental Health Act 2007 (NSW) ss 34 and 76 and Schedule 2. The term “primary carer” is defined in s 71 of that Act.

[45] Mental Health Act 2007 (NSW) s 76.

[46] The term “close friend or relative” of a person means a friend or relative who maintains both a close personal relationship with the person through frequent personal contact and a personal interest in their welfare and who does not provide support to the person wholly or substantially on a commercial basis. See, Mental Health Act 2007 (NSW) s 71.

[47] NSW Trustee and Guardian Act 2009 (NSW) s 44.

[48] Ibid. s 44.

[49] Ibid. ss 44 and 52.

[50] Ibid. s 45.

[51] Ibid. ss 45 and 52.

[52] Ibid. s 46. A patient is formally defined as a person who is admitted to a mental health facility in accordance with the Mental Health Act 2007 (NSW) and who is in the facility following the person’s admission. The definition includes a person so admitted while they are absent from the facility either with or without leave of absence. See, Mental Health Act 2007 (NSW) s 4 and NSW Trustee and Guardian Act 2009 (NSW) s 38.

[53] NSW Trustee and Guardian Act 2009 (NSW) ss 46 an 52.

[54] Ibid. s 46(2) and (3)

[55] Ibid. ss 47 and 48.

[56] Ibid. ss 47(2) and 48(4).

[57] Ibid. s 57(1).

[58] Ibid. s 56.

[59] Ibid. s 56(2).

[60] Ibid. s 58.

[61] Ibid. s 59.

[62] Ibid. s 3(1).

[63] Ibid. s16.

[64] Ibid. ss 61, 64 and 65.

[65] Ibid. s 61.

[66] Ibid. s 64.

[67] Ibid. s 65(1).

[68] Ibid. s 65(2)

[69] Ibid. s 65(3).

[70] Ibid. s 66.

[71] Guardianship Act 1987 (NSW) s 25M(2).

[72] Ibid. s 25M(2)(a).

[73] NSW Trustee and Guardian Act 2009 (NSW) s 56(b).

[74] Ibid. ss 64(4), 65(4) and 66(3).

[75] Guardianship Act 1987 (NSW) s 25M(3).

[76] NSW Trustee and Guardian Act 2009 (NSW) s 71(1).

[77] Ibid. s 71(2).

[78] Ibid. s 71(3).

[79] Ibid. s 71(5).

[80] (1993) 30 NSWLR 417, 433, 437-439 and Kirby P 430-432.

[81] Guardianship Act 1987 (NSW) ss 25N and 25S.

[82] Ibid. s 25N(1) and (3).

[83] Ibid. s 25N(2).

[84] Ibid. s 25N(4)(a).

[85] Ibid. ss 25N(4)(b) and s 25R.

[86] Ibid. s 25R.

[87] NSW Trustee and Guardian Act 2009 (NSW) s 86.

[88] Porter and Robinson op cit (footnote 13), 57-58.

[89] Interpretation Act 1987 (NSW) s 47.

[90] Ibid. s 90.

[91] Ibid. s 90(2).

[92] Guardianship Act 1987 (NSW) ss 3F(6) and (7) (parties and 57A (Tribunal joining parties).

[93] NSW Trustee and Guardian Act 2009 (NSW) s 86(1).

[94] See Holt v Protective Commissioner (1993) 31 NSWLR 227 (siblings of the person); MB v Protective Commissioner (2000 ) [2000] NSWSC 717; 50 NSWLR 24 (mother and primary carer of the person) and Application of J and K [2009] NSWSC 1453 (father and sister).

[95] For a case in which two members were satisfied that the person was now capable of managing their affairs and one member was not see, Matter no. 2000/5600 (unreported NSW Guardianship Tribunal, 15 May 2001).

[96] Ibid. s 25P

[97] Ibid. s 25U(2).

[98] Ibid. s 25U(4).

[99] Holt v Protective Commissioner (1993) 31 NSWLR 227 and KW v Protective Commissioner [2008] NSWADTAP 5.

[100] Ibid. s 25U(3). For an example of the Tribunal dealing with an application to replace a manager see, Matter no 95/1860 (unreported, NSW Guardianship Board, 27 September 1995).

[101] Ibid. s 25Q(2).

[102] Matter no 2001/6182 (unreported, NSW Guardianship Tribunal, 27 May 2002).

[103] NSW Trustee and Guardian Act 2009 (NSW) s 86(1).

[104] Interpretation Act 1987 (NSW) s 47 and Holt v Protective Commissioner (1993) 31 NSWLR 227, 237.

[105] Ibid. 241.

[106] See 8. 11. 13.

[107] Ibid. s 25Q(3) and (4).

[108] Guardianship and Administration Act 2000 (Qld) s 84(1).

[109] Ibid. s 240.

[110] Public Trustee Act 1978 (Qld), s 65 which provides that on the application of the Public Trustee, the Supreme Court may make a protection order appointing the Public Trustee to take possession of, control and manage all or part of the estate of a person who is under 18 years and who the Court is satisfied is:

1. by reason of age, disease, illness, or physical or mental infirmity or of their taking or using in excess alcoholic liquors, or any intoxicating, stimulating, narcotic, sedative or other drug,

2. either continuously or intermittently,

3. unable, wholly or partially, to manage their affairs; or subject to, or liable to be subjected to, undue influence in respect of the their estate or part of it, or

4. is otherwise in a position which in the opinion of the Court renders it necessary in the interest of that person or of those dependent upon the person that the person’s property should be protected.

[111] Re Langham [2005] QSC 127 [28].

[112] See Ch 6. 7. 2 and 6. 7. 3.

[113] Guardianship and Administration Act 2000 (Qld) s 117.

[114] Ibid. s 20.

[115] Ibid. s 12. See also, Ch 6. 7. 4.

[116] Ibid. s 12(1).

[117] Ibid. Schedule 4.

[118] Ibid. Sch 2.

[119] Guardianship and Administration Act 2000 (Qld) s 14(1)(b)(i). If the proposed administrator has been a bankrupt or has taken advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cth) or a similar law of a foreign jurisdiction, then the Tribunal must have regard to the matters set out in s 15(4)(c) in considering the competence of that person for appointment and the appropriateness of appointing them. For an example of a case in which it was necessary to appoint the Public Trustee as administrator and not a family member see, Re TAO [2003] QGAAT 23.

[120] Ibid. s 14(1)(b)(ii). For a case showing the criteria the Tribunal used to choose between the Public Trustee and a trustee company as administrator see, Re HAS [2001] QGAAT 3.

[121] Guardianship and Administration Act 2000 (Qld) s 26(2).

[122] Ibid. s 33.

[123] Ibid. s 129.

[124] Presidential Direction No 2 of 2005.

[125] Guardianship and Administration Act 2000 (Qld) s 33.

[126] Ibid. ss 3341, 44-47 and 49-55.

[127] Ibid. s 28.

[128] Ibid. ss 28 and 29.

[129] Ibid. s 31(2). For an example see, Re GI [2004] QGAAT 11[8].

[130] For some examples see, Re MME [2006] QGAAT 84 and Re MDC [2004] QGAAT 5.

[131] For an example see, Adam v Hardy [2007] SASC 277.

[132] District Court Act 1991 (SA) s 8.

[133] Aged and Infirm Persons’ Property Act 1940 (SA) s 30.

[134] Guardianship and Administration Act 1993 (SA) ss 36 and 37. See, Ch 8. 6. 2.

[135] Ibid. s 35(1).

[136] Guardianship and Administration Act 1993 (SA) ss 3 and 5. For an example of a case in which the Board failed to take into account at least some of the s 5 principles see, Williams v Guardianship Board [1999] SADC 25.

[137] Ibid. s 51.

[138] See ibid. s 5.

[139] Ibid. s 50.

[140] Ibid. s 52.

[141] Ibid. s 35(1)(c) and (d).

[142] Ibid. ss 35(4)(a) and 57.

[143] Ibid. s 14(7).

[144] Aged and Infirm Persons’ Property Act 1940 (SA) s 7(1).

[145] Ibid s 7(2).

[146] Ibid.

[147] Ibid. s 3(1).

[148] The terms “near relation” and “blood relation” are not defined in the Act nor in the Acts Interpretation Act 1915 (SA)..

[149] Aged and Infirm Persons’ Property Act 1940 (SA) s 8(1).

[150] Ibid. s 8A(1)(a) and (b).

[151] Ibid. s 8A(1)(c).

[152] Guardianship and Administration Act 1993 (SA) s 5.

[153] Aged and Infirm Persons’ Property Act (SA) s 10(1). Note that where there is more than one manager they must all concur in every act,

matter, and thing done in relation to the protected estate. See s 17.

[154] Ibid. s 10(1) and (2).

[155] Ibid. s 10(2).

[156] Ibid. s 11. For an example of an application to rescind an order see, Porker v Porker [2007] SASC 217.

[157] Ibid. ss 13, 14 and 16.

[158] Ibid. s 30.

[159] Guardianship and Administration Act 1993 (SA) s 39(1).

[160] Ibid. s 39(2).

[161] Ibid. ss 35(4) and 39.

[162] Ibid. ss 39(2) and 40-42.

[163] Ibid. s 44(1).

[164] Ibid. s 44(4).

[165] Ibid. s 45.

[166] Ibid. s 57(3). See, for an example, Wescombe v Guardianship Board [1997] SADC 3609.

[167] Ibid. s 57.

[168] See, www.opa.sa.gov.au.

[169] Guardianship and Administration Act 1993 (SA) s 36.

[170] Contrast the terms of s 36 with those of s 57.

[171] Guardianship and Administration Act 1995 (Tas) s 50(1).

[172] Ibid. s 51(1).

[173] Ibid. s 54(1).

[174] Ibid. s 54(1)(d) and (2).

[175] For a description of the Board appointing the Public Trustee as administrator see, KB and RB v Guardianship and Administration Board [2007] TASSC 45.

[176] Acts Interpretation Act 1931(Tas) s 24(d).

[177] See Guardianship and Administration Act 1995 (Tas) s2 20(6) and 22.

[178] Ibid. s 65.

[179] Guardianship and Administration Act 1995 (Tas) s 57.

[180] Ibid. ss 56-60.

[181] Ibid. s 63.

[182] Ibid. s 61(1).

[183] Ibid. s 61(2) and (3).

[184] Ibid. s 61(4).

[185] Ibid. s 52.

[186] Ibid. s 67.

[187] Ibid. s 68.

[188] JMP (Admin Review) 21. 5. 04, [25], www.guardianship.tas.gov.au.

[189] Gardner; re BWV [2003] VSC 173, [99], 7 VR 487.

[190] XYZ v State Trustees Ltd [2006] VSC 444, [73].

[191] Guardianship and Administration Act 1986 (Vic) s 43(1).

[192] Ibid. s 43(2).

[193] Ibid. s 43(3). However, note that it is not necessary to nominate a proposed administrator. VCAT will decide who is to be the administrator if it determines that an administrator should be appointed.

[194] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 60.

[195] Guardianship and Administration Act 1986 (Vic) s 44(a). The “nearest relative: of the person is their spouse or domestic partner or, where they do not have a spouse or domestic partner, the first listed relative in list below who is 18 years or older. If there are of two or more relatives at the same level then the elder or eldest: (a) son or daughter; (b) father or mother; (c) brother or sister; (d) grandfather or grandmother; (e) grandson or granddaughter; (f) uncle or aunt; (g) nephew or niece, see ibid. s 3. The nearest relative available is the nearest relative available to take part in the proceedings.

[196] The primary carer of the person is the person who is primarily responsible for providing support or care to the person, see ibid. s 3.

[197] Ibid. s 44.

[198] Ibid. s 46(1) and (3).

[199] XYZ v State Trustees Ltd [2006] VSC 444, [44]-[45]

[200] Guardianship and Administration Act 1986 (Vic) s 46(2).

[201] Ibid. s 46(4).

[202] The relevant common law is discussed below at 8. 11. 11 and 8. 11. 12..

[203] Where a parent or nearest relative of person the hearing is about is proposed as the administrator, that person is not, by virtue only of the fact that they are the person’s parent or nearest relative, to be taken to be in a position where their interests conflict or may conflict with those of the person the hearing is about. See, Guardianship and Administration Act 1986 (Vic) s 47(3).

[204] Guardianship and Administration Act 1986 (Vic) s 47(1)(c).

[205] Ibid. s 47(1)(c)(iv).

[206] Ibid. s 47(2).

[207] Ibid. s 23(5).

[208] For a Victorian example see, FF and IF (Guardianship) [2007] VCAT 1298.

[209] GM (Guardianship) [2007] VCAT 1313.

[210] Guardianship and Administration Act 1986 (Vic) s 60A.

[211] Ibid. s 52(1).

[212] Ibid. s 59.

[213] Ibid. s 33(2).

[214] Ibid. s 33(3).

[215] Ibid. s 55(4A).

[216] Ibid. s 55(1). See, RL (Guardianship) [2007] VCAT 2486 and GM (Guardianship) [2007] VCAT 1658.

[217] Ibid. s 55(4).

[218] Ibid. s 55(2).

[219] Ibid. s 56.

[220] Ibid. s 54.

[221] Ibid. s 58(1).

[222] Ibid. s 58(2C),(3) and (4).

[223] Ibid. s 48(1). Those powers and duties are found in ss 49 to 58 of the Guardianship and Administration Act 1986 (Vic). They are discussed in the paragraphs immediately below in 8. 7. 9. 1. A more general discussion of the powers and duties of administrators is found in 8. 11. 14.

[224] Ibid. s 48(1). Those powers and duties, found in ss 58B to 58G, are set out below in 8. 7. 9. 1.

[225] This matter is taken seriously by VCAT and will be considered when it is reassessing administration orders. See for example, PL (Guardianship) [2007] VCAT 2458.

[226] Ibid. s 49.

[227] Ibid. s 58.

[228] Ibid. s 50.

[229] Ibid. s 55.

[230] Ibid. s 50A(1).

[231] Ibid. s 50A(2).

[232] Ibid. s 50A(3).

[233] Ibid. s 51(1)(a) and (b). For the powers of the State Trustees as an administrator, not set out in the Guardianship and Administration Act 1986 (Vic), see State Trustees (State Owned Company) Act 1994 (Vic).

[234] Ibid.s 51(1)(c). See also s 53(4).

[235] Ibid. s 58(2).

[236] Ibid. s 58(2A).

[237] Ibid. s 58(2B).

[238] Ibid. s 48(1).

[239] Ibid. s 58B.

[240] Ibid. s 48(1).

[241] Ibid. s 58B(2).

[242] Ibid. s 58B(3).

[243] Ibid. s 58C. These are complex matters in relation to which an administrator should obtain expert legal advice before exercising any discretion on behalf of the person whose estate they are administering.

[244] Ibid. s 58G.

[245] See VCAT website, www.vcat.vic.gov.au.

[246] Ibid. s 53.

[247] Ibid. s 52(1).

[248] Ibid. s 52(3).

[249] Ibid. s 60A(1) and (6). For an example of an application for a rehearing in a guardianship matter see, Public Advocate v RCS [2004] VCAT 1880.

[250] Ibid s 60A(1) and(3).

[251] Ibid. s 60A(2).

[252] Ibid. s 60A(4).

[253] Ibid. s 60A.

[254] Ibid. s 60(2).

[255] Ibid. s 61.

[256] Ibid. s 61(1).

[257] Ibid. s 61(2).

[258] Ibid. s 62(1).

[259] Ibid. s 62(1)(a). The “nearest relative: of the person is their spouse or domestic partner or, where they do not have a spouse or domestic partner, the first listed relative in list below who is 18 years or older. If there are of two or more relatives at the same level then the elder or eldest: (a) son or daughter; (b) father or mother; (c) brother or sister; (d) grandfather or grandmother; (e) grandson or granddaughter; (f) uncle or aunt; (g) nephew or niece, see ibid. s 3.

[260] The primary carer of the person is the person who is primarily responsible for providing support or care to the person, see ibid. s 3.

[261] Ibid. s 62(2A).

[262] Ibid. s 63. For an example of a reassessment of an administration order see, BB [2006] VCAT 1482.

[263] Guardianship and Administration Act 1990 (WA) s 3A. See also Mr CAD [2001] WAGAB 1 [9] and [10], (2001) 28 SR (WA) 333,335.

[264] Rowell v Calder [2007] WASC 23.

[265] Ibid. ss 40 and 67(1).

[266] Ibid. s 41.

[267] Ibid. s 64(1).

[268] Ibid. s 4(2)(a).

[269] Ibid. s 4(2)(f).

[270] Ibid. s 4(2)(c).

[271] Ibid. s 4(2)(e).

[272] Ibid 64(1)(c)and(d).

[273] Ibid. s 64(3)(a).

[274] Ibid. s 68(1)(a).

[275] Ibid. s 68(1)(c)and(d).

[276] Ibid. s 68(3).

[277] Ibid. s 68(4).

[278] Ibid. ss 3(1) and 68(1)(b).

[279] Ibid. s 68(1)(c)and(d).

[280] Ibid. ss 3(1) and 68(1)(b)and(3).

[281] Ibid.

[282] While the Public Trustee is defined as a corporate trustee in s. 3 of the Guardianship and Administration Act 1990 (WA), it is not a trustee company under the Trustee Companies Act 1987 (WA). Consequently, the provisions of s. 68(2) of the Guardianship and Administration Act 1990 (WA) do not apply to the Public Trustee. See, AG [2007] WASAT 7, [66].

[283] Ibid. s 68(2).

[284] AG [2007] WASAT 7, [66]. See also, Guardianship and Administration Act 1990 (WA) s 117.

[285] Guardianship and Administration Act 1990 (WA) s 68(5).

[286] Mr CAD [2001] WAGAB 1 [15]. See also Re SMPM [2004] WAGAB 3.

[287] Re SMPM [2004] WAGAB 3 [11]-[13].

[288] Guardianship and Administration Act 1990 (WA) s 64(1)(d).

[289] See for example, Mr CAD [2001] WAGAB 1 and GM (Guardianship) [2007] VCAT 1658.

[290] Ibid. s 71(1) and (3). The Tribunal may authorise an administrator to perform any function specified in the order appointing them including any function set out in Part A of Schedule 2 of the Guardianship and Administration Act 1990 (WA).

[291] Ibid. s 65.

[292] Ibid. s 66(1).

[293] See for example, VGR [2006] WASAT 64.

[294] Ibid. s 70(1).

[295] Ibid. s 70(2).

[296] Ibid. s 70(4).

[297] Ibid. s 71(2).

[298] Ibid. ss 70(4) and 71(3). The functions set out in Schedule 2B may be exercised by an administrator but only if directed to do so by a Tribunal order.

[299] Ibid. s 69(2).

[300] Ibid. s 69(3).

[301] Ibid. s 80 and Guardianship and Administration Regulations 2005 (WA) regs 3 and 4.

[302] Guardianship and Administration Act 1990 (WA) s 71(4).

[303] Ibid. s 71A.

[304] Ibid. s 80. See also, Guardianship and Administration Regulations 2005 (WA).

[305] Guardianship and Administration Act 1990 (WA) s 84.

[306] Ibid. s 85(1).

[307] Ibid. s 85(2).

[308] Ibid. ss 86-88.

[309] Ibid. s 89(1).

[310] Ibid. s 90. For an example of a private administrator being replaced by the Public Trustee on a periodic review see, Re L (1999) 24 SR (WA) 173.

[311] Supreme Court Act 1933 (ACT) s 20. See also, Chapter 8. 9. 1.), A v Guardianship and Management of Property Tribunal [1999] ACTSC 77, [69]-[70] and Public Trustee v Thompson [2000] ACTSC 4.

[312] Supreme Court Act 1933 (ACT) s 20(2).

[313] Guardianship and Management of Property Act 1991(ACT) ss 8 and 8A.

[314] Ibid. s 8C.

[315] Guardianship and Management of Property Act 1991(ACT) s 67.

[316] A v Guardianship and Management of Property Tribunal [1999] ACTSC 77, [60]-[61]. See also, Guardianship and Administration Act 1995 (Tas) s 51; Guardianship and Administration Act 1986 (Vic) s 46 and Guardianship and Administration Act 1990 (WA) s 64.

[317] Guardianship and Management of Property Act 1991 (ACT) ss 8A and 12.

[318] Ibid. s 9(2).

[319] Ibid. s 9(5).

[320] Ibid. s 9(3).

[321] Ibid. ss 4 and 8.

[322] Ibid s 4(2).

[323] The term “carer” is defined in the Guardianship and Management of Property Act 1991 (ACT) s 6.

[324] Ibid s 4(3) and (4).

[325] Ibid.

[326] Ibid s 19(3).

[327] Ibid. s 8(2).

[328] Ibid. s 11.

[329] Ibid s 67.

[330] Guardianship Act 1987 (NSW) s 25H.

[331] Guardianship and Management of Property Act 1991 (ACT) s 72(1).

[332] Ibid. s 72(2).

[333] David by her Tutor the Protective Commissioner v David (1993) 30 NSWLR 417.

[334] Guardianship and Management of Property Act 1991 (ACT) s 71.

[335] Ibid. ss 16 and 18.

[336] Ibid. s 26. See also, clause 6 of the Guardianship and administration of Property Regulation 1991 (ACT).

[337] Ibid. s 8(2).

[338] Ibid. ss 13 and 23.

[339] Ibid. s 20.

[340] Guardianship and Management of Property Act 1991 (ACT) s 4.

[341] Ibid. s 5A(e).

[342] Ibid. s 5A(c).

[343] Ibid. s 4(2) and the common law.

[344] Ibid. s 14(1)(a) and the common law.

[345] Ibid. s 14(1)(b) and (2).

[346] Ibid. s 25.

[347] Ibid. S 22.

[348] Ibid. s 24.

[349] Ibid. s 21.

[350] See, www.acat.act.gov.au.

[351] Ibid. s 26. See also, clause 6 of the Guardianship and Administration of Property Regulation 1991 (ACT).

[352] Guardianship and Management of Property Act 1991(ACT) s 27.

[353] Ibid. s 29.

[354] Ibid s 31.

[355] Ibid s 28.

[356] Ibid ss 19(2) and 31.

[357] Ibid s 19(1).

[358] Ibid s 19(3).

[359] Ibid. s 19(1) and (2).

[360] Ibid ss 19(1)and(2) and 31(1).

[361] Aged and Infirm Persons’ Property Act 1979 (NT) ss 5, 11 and 12.

[362] Ibid. s 6.

[363] Ibid. s 5(1).

[364] Supreme Court Act (NT) 1979 s 14 and Equity Act 1866-7 (SA) s 7. See also, Colmer v O’Brien (1974) 9 SASR 378, 381.

[365] Renehan v Leeuwin Ocean Adventure Foundation Ltd [2006] NTSC 28 [46].

[366] Aged and Infirm Persons’ Property Act 1979 (NT) s 7(3).

[367] Ibid. ss 12(2), 13 and 16(1).

[368] Ibid. s 5.

[369] Adult Guardianship Act 1988 (NT) s 16.

[370] Ibid. s 16(1)(a).

[371] Aged and Infirm Persons’ Property Act 1979 (NT) s 7(1).

[372] Ibid. s 7(2).

[373] Ibid. s 7(3).

[374] Aged and Infirm Persons’ Property Act 1979 (NT) s 8.

[375] Ibid. s 9.

[376] Ibid. s 8.

[377] Ibid. s 12.

[378] Ibid. s 16(1). A list of the matters that can be included in those terms and conditions are set out in s 16(2).

[379] Adult Guardianship Act 1988 (NT) s 16(1)(a).

[380] Ibid. s 16(1)(b).

[381] Aged and Infirm Persons’ Property Act 1979 (NT) s 13.

[382] Ibid. s 19.

[383] Ibid. ss 11, 15,16 and 20.

[384] Adult Guardianship Act 1988 (NT) s 16(2A).

[385] Aged and Infirm Persons’ Property Act 1979 (NT) s 11.

[386] Adult Guardianship Act 1988 (NT) s 16(2).

[387] Aged and Infirm Persons’ Property Act 1979 (NT) ss 17 and 21.

[388] Renehan v Leeuwin Ocean Adventure Foundation Ltd [2006] NTSC 28.

[389] Adult Guardianship Act 1988 (NT) s 16(3) and (4).

[390] Aged and Infirm Persons’ Property Act 1979 (NT) s 20.

[391] David by her Tutor the Protective Commissioner v David (1993) 30 NSWLR 417 (1993) 30 NSWLR 417.

[392] Adult Guardianship Act 1988 (NT) s 23(1).

[393] Ibid. s 16(2A).

[394] See, 8. 8. 2. 1. and Aged and Infirm Persons’ Property Act 1979 (NT) s 7.

[395] See 8. 8. 3.

[396] Adult Guardianship Act 1988 (NT) s 16(2A).

[397] Adult Guardianship Act 1988 (NT) s 23.

[398] See Ch 8. 8. 8.

[399] M v M [1981] 2 NSWLR 334; XYZ v State Trustee [2004] NSWSC 444 ; RAP v AEP [1982] 2 NSWLR 508 and Re R (2000) NSWSC 886 [35]-[37]..

[400] M v M [1981] 2 NSWLR 334, 336.

[401] PY v RJS [1982] 2 NSWLR 700 and Re R [2000] NSWSC 886, [51].

[402] Willett v Futcher [2005] HCA 47 [49] and [51]. See also Smith v Hanrahan [2006] WADC 20, 42 SR (WA) 268.

[403] McD v McD [1983] 3 NSWLR 81, 84.

[404] Ibid.

[405] Re Meux [1846] EngR 163; (1846) 47 ER 1075.

[406] [1982] 2 NSWLR 700.

[407] Re GHI [2005] NSWSC 581, [5]. See also, CF v TCML [1983] 1 NSWLR 138, M and the Protected Estates Act (1988) 12 NSWLR 96, and Re C (TH) and the Protected Estates Act [1999] NSWSC 456.

[408] [1982] 2 NSWLR 700, 702.

[409] Matter No. 2000/591 (unreported, Guardianship Tribunal, 15 February 2000).

[410] Matter No. 1999/4274 (unreported, Guardianship Tribunal, 10 March 2000). This case and the previous one are in contrast to Matter No. 2000/909 (unreported, Guardianship Tribunal, 10 March 2000).

[411] Guardianship and Administration Act 2000 (Qld) s 12 and Schedule 2 Part 1.

[412] Porter and Robinson op cit (footnote 10), 40.

[413] Re McGregor [1985] VicRp 85; [1985] VR 861.

[414] XYZ v State Trustees Ltd [2006] VSC 444, [69].

[415] Ibid. [70], [72] and [73].

[416] Ibid. [72].

[417] Guardianship and Administration Act 1986 (Vic) s 48 and McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] 1 VR 521, 530-531.

[418] McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] 1 VR 521, 530.

[419] Guardianship and Administration Act 1986 (Vic) s 4(2) and McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] 1 VR 521, 530-531

[420] XYZ [2007] VCAT 1196, [47] – [51]. See also his discussion of the degree of capacity required and capacity assessments [60]-[70].

[421] [1985] VicRp 85; [1985] VR 861.

[422] XYZ [2007] VCAT 1196, [55].

[423] Ibid. [56]. See also, Guardianship and Administration Act 1986 (Vic) s 48.

[424] M and the Protected Estates Act (1988) 12 NSWLR 96, 102.

[425] EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501, [46].

[426] Ibid. [46].

[427] Ibid. [50].

[428] As to the position in England and Wales see, Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889 [18] and [19].

[429] N v N (unreported, NSW Supreme Court, Hodgson J, 13 March 1997) 4, quoted in, Re GH1 [2005] NSWSC 581; (2005) 221 ALR 589, [8].

[430] H v H (unreported, NSW Supreme Court, Young J, 20 March 2000), 7-8.

[431] Guardianship and Administration Act 2000 (Qld) s 12(1).

[432] Ibid. Schedule, 2 s 1.

[433] McD v McD [1983] 3 NSWLR 81, 86.

[434] [2006] VSC 444, [55]-[58].

[435] [2007] VCAT 1196, [66].

[436] XT (Admin) 6.3.06 [13] at www.guardianship.tas.gov.au/decisions.

[437] Ibid. [16].

[438] Guardianship Act 1987 (NSW) s 25G(b) for the Guardianship Tribunal, Guardianship and Administration Act 1986 (Vic) s 46(1)(a)(iii), Guardianship and Administration Act 1995 (Tas) s 51(1)(3)(c), Guardianship and Administration Act 1990 (WA) s 64(1)(b).

[439] XYZ v State Trustees Ltd [2006] VSC 444, [44]-[45]

[440] Public Trustee v Blackwood (1998) 8 Tas SR 256,265. See also ss 6, 51 and 57 of the Guardianship and Administration Act 1995 (Tas).

[441] MM [2001] WAGAB 2, (2001) 28 SR (WA) 320, 329.

[442] Ibid. [54] and [55].

[443] See, Guardianship and Administration Act 1990 (WA) s 4(c) and Guardianship and Administration Act 1995 (Tas) s 51(2).

[444] MM [2001] WAGAB 2 [55], (2001) SR (WA) 320, 330. For an example of this see Re DAP (1994) 13 SR (WA) 21.

[445] Ibid.

[446] Re R [2000] NSWSC 866 [32].

[447] For an example of this approach being upheld, but expressed in terms of “the least restrictive alternative” see, EW [2010] WASAT 91.

[448] Miner v Anderson (unreported, Supreme Court of NSW, Cohen J 30 November 1998) BC9807761.

[449] Ibid. 6.

[450] Guardianship and Administration Act 2000 (Qld) s 12(1)(c)(i); Guardianship and Management of Property Act 1991 (ACT) s 8(1)(c)(i).

[451] Re CP [2003] QGAAT 24 [48]. For a Western Australian example see, Re AJH (1994) 12 SR (WA) 392.

[452] Guardianship Act 1987 (NSW) s 25G(c) and s 4, s 4(a) in particular (Guardianship Tribunal), and Public Trustee and Guardian Act 2009 (NSW) s 39, s 39(a) in particular (Supreme Court and Mental Health Review Tribunal); Guardianship and Administration Act 2000 (Qld) s 12(1)(c); Guardianship and Administration Act 1985 (Vic) s 46(3); Guardianship and Administration Act 1995 (Tas) s 51(3); Aged and Infirm Persons’ Property Act 1979 (NT) s 12(1) and the Guardianship and Management of Property Act 1991 (ACT) s 8(1)(c)(ii).

[453] See s 4(2)(a). See also JH and EP [2010] WASAT 51, a case in which the wishes of a person with a longstanding mental illness were overruled because her estate was at significant risk and it was in her best interests that the Public Trustee be appointed as her administrator to negotiate with credit providers and take steps to protect her estate.

[454] JJK v APK (1986) Aust. Tort Reports 80-042, 67,880, BC8600849, 11.

[455] Re R [2000] NSWSC 886 [35] and [37].

[456] Re GH1 [2005] NSWSC 581 [22][2005] NSWSC 581; , 221 ALR 589.

[457] Briginshaw v Briginshaw (1938) 60 CLR 366; Re GH1 [2005] NSWSC 581, [23] (also reported as Re GHI (a protected person) [2005] NSWSC 581; (2005) 221 ALR 589. For a case in which the standard of proof for the proof of disability was “more likely than not” see, FF and IF (Guardianship) [2007] VCAT 1298 [32].

[458] Re C (TH) and the Protected Estates Act [1999] NSWSC 456 [15].

[459] H v H (unreported, NSW Supreme Court, 20 March 2000, Young J), 9. See also Re GH1 [2005] NSWSC 581.

[460] Re GH1 [2005] NSWSC 581, [126].

[461] Holt v Protective Commissioner (1993) 31 NSWLR 227, 241.

[462] Ibid.

[463] Ibid. 241-243. Kirby J’s guidelines, given in a NSW Court of Appeal case, post-date and probably supersede the guidelines that Powell J had noted had grown up to assist judges to exercise their discretion as to whether to appoint the statutory manager of the estates of incapable persons or family members in JJK v APK (1986) Aust. Tort Reports 80-042, 67,881-67,882, BC8600849, 15-17.

[464] Ibid. 243.

[465] See as examples, Matter of Hancock 828 S. W. 2d 707 (1992) and Matter of Benson 124 S. W. 3d 79 (2004).

[466] MB v Protective Commissioner [2000] NSWSC 717; (2000) 50 NSWLR 24, [126]-[129].

[467] M v Protective Commissioner [2002] 421.

[468] Ibid. [45]. See NSW Trustee and Guardian Act 2009 (NSW) s 61.

[469] Ibid. [46].

[470] Ibid. [43] and [46]

[471] Re L [2000] NSWSC 721, [7].

[472] Ibid. [12].

[473] Re R [2000] NSWSC 886 [49]. For a more recent example of the NSW Supreme Court appointing joint private financial managers see, Collis [2009] NSWSC 852.

[474] [2000] Ch 343.

[475] Re R [2000] NSWSC 886 [50].

[476] Re L {2000] NSWSC 721 [16].

[477] Contrast the facts in Re TAW [2004] QGAAT 56 with those in Re GE [2005] QGAAT 32.

[478] Re L {2000] NSWSC 721 [17] and [18].

[479] David by her Tutor the Protective Commissioner v David (1993) 30 NSWLR 417.

[480] Guardianship and Administration Act 1985 (Vic) s 53; Guardianship and Administration Act 1993 (SA) s 39(1); Guardianship and Administration Act 1990 (WA) s 69(4); Guardianship and Management of Property Act 1991 (ACT) s 71 and Aged and Infirm Persons’ Property Act 1979 (NT) s 20.

[481] Guardianship and Administration Act 2000 (Qld) s 33(2). In NSW the Protective Commissioner has all and private financial managers have all or any specified function necessary and incidental and care of the estate, see Guardianship Act 1987 (NSW) ss 24(1) and 30(1). In Tasmania administrators have the general care and management of the estates they are administering Guardianship and Administration Act 1995 (Tas) s 56(1)(a).

[482] NSW Trustee and Guardian Act 2009 (NSW) ss 57(1) and 61. Note the possible role of the Guardianship Tribunal in ss 56(b) and 64(4).

[483] Ibid. ss 63-66.

[484] Ibid. ss 63-65.

[485] Guardianship and Management of Property Act 1991 (ACT) s 8(3).

[486] Guardianship and Administration Act 2000 (Qld) ss 33-55.

[487] Guardianship and Administration Act 2000 (Qld) s 34. In Queensland those general principles are found in Schedule 1 of the Act.

[488] Ibid. s 35.

[489] Ibid. s 36.

[490] Ibid. s 37.

[491] Ibid. s 40.

[492] See Aged and Infirm Persons’ Property Act 1979 (NT) s 19.

[493] Guardianship and Administration Act 2000 (Qld) s 44(1) and (2).

[494] Ibid. s 44(3), (4) and (5).

[495] Ibid. s 45.

[496] Ibid. s 46.

[497] Ibid. ss 47 and 48.

[498] Ibid. s 49.

[499] Ibid. s 50.

[500] Ibid. s 51.

[501] Ibid. s 54.

[502] Ibid. s 55.

[503] Sheffield City Council v E [2004] EWHC 2808 (Fam) [100].

[504] Re An Incapable Person D [1983] 2 NSWLR 590. For an example from Western Australia see, Re PD [2008] WASAT 13.

[505] Re Bennett [1913] UKLawRpCh 63; [1913] 2 Ch 318, 323 and 326. See also, Protected Estates Act 1983 (NSW) s 34 (1)(c); Guardianship and Management of Property Act 1991 (ACT) s 29; Aged and Infirm Persons’ Property Act 1979 (NT) s 15(1).

[506] Aged and Infirm Persons’ Property Act 1940 (SA) s 11(3); Guardianship and Administration Act 1993 (SA) s 41; Guardianship and Administration Act 1990 (WA) s 79. Note Guardianship and Administration Act 1986 (Vic) ss 58AB and 58G.

[507] Mr CAD [2001] WAGAB 1 [10], 28 SR (WA) 333.

[508] Sheffield City Council v E [2004]EWHC 2808 (Fam) [38] and Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889. For a consideration of the matter in relation to litigation in the Federal Court of Australia see, L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 [25]-[35] and Owners of Strata Plan 23007 v Cross [2006] FCA 900 [54]-[73][2006] FCA 900; , 233 ALR 296 and for the Supreme Court of Queensland see, Aziz v Prestige Property Services Pty Ltd [2007] Qsc 265..

[509] Sheffield City Council v E [2004]EWHC 2808 (Fam) [133].

[510] Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889 [83].

[511] NSW Trustee and Guardian Act 2009 (NSW) s 16(1)(s).

[512] Ibid. s 64(1)and(2) .

[513] Guardianship Act 1987 (NSW) s 25E.

[514] See NSW Trustee and Guardian Act 2009 (NSW) and Protective Commissioner v D [2004] NSWCA 216 [150]-[151][2004] NSWCA 216; , 60 NSWLR 513. McColl JA notes that payments for past gratuitous care can also be made, where appropriate, by statutory administrators at least in Western Australia, South Australia, Tasmania the Australian Capital Territory and, probably, Queensland [[143]-[148].

[515] See for example, Re GH1 [2005] NSWSC 581; (2005) 221 ALR 589 and H v H (unreported, NSW Supreme Court, 20 March 2000, Young J).

[516] XYZ v State Trustees Ltd [2006] VSC 444, [58] (Cavanough J) and A v Guardianship and Management of Property Tribunal [1999] ACTSC 77, [67] (Miles CJ).

[517] XYZ v State Trustees Ltd [2006] VSC 444, [44].

[518] Guardianship and Administration Act 1995 (Tas) s 51(1).

[519] Guardianship Act 1987 (NSW) s 25P(2) and NSW Trustee and Guardian Act 2009 (NSW) s 86.

[520] Guardianship and Administration Act 1993 (SA) ss 3 and 35(1) and Guardianship and Administration of Property Act 1991 (ACT) s 8(1),

[521] Adult Guardianship Act, 1988 (NT) s 3.

[522] PY V RJS [1982] 2 NSWLR 700, 701; Re GHI [2005] NSWSC 581 [26].

[523] Re C (TH) and the Protected Estates Act [1999] NSWSC 456 [17].

[524] Guardianship and Administration Act 1990 (WA) s 90.

[525] Ibid. s 4(2)b)(iii).

[526] Guardianship and Administration Act 2000 (Qld) ss 12 and 31 and Schedule 4.

[527] Okonkwo OC., Wadley VG., Griffith H.R. et al (2006) “Cognitive correlates of financial abilities in mild cognitive impairment” J Am Geriaitrc Society 54: 1745-1750

[528] Moye J., Marson D.C “Assessment of decision-making capacity in older adults: an emerging area of practice and research” Journal of Gerontology 2007; 62B3-11

[529] British Medical Association and The Law Society, Assessment of Mental Capacity – Guidance for doctors and lawyers, London, BMJ Books, 2nd. Ed. 2004, p. 51.

[530] Marson D.C. Loss of competency in Alzheimer’s disease: conceptual and psychometric approaches International Journal of Law and Psychiatry (2001) 24: 267-283.

[531] Bennett HP, Hallen P. “Guardianship and financial management legislation: what doctors in aged care need to know” Intern Med J. (2005) 35(8):482-7.

[532] XT (Admin) 6.3.06 [13] at www.guardianship.tas.gov.au/decisions.

[533] Ibid. [16].

[534] Griffith HR, Belue K/., Sicola A., et al (2003) Impaired financial abilities in mild cognitive impairment Neurology 60: 449-457.

[535] Okonkwo OC., Wadley VG., Griffith H.R. et al (2006) Cognitive correlates of financial abilities in mild cognitive impairment J Am Geriaitrc Society 54: 1745-1750.

[536] [2007] VCAT 1196, [66].

[537] Sullivan K In Mental Capacity. Measuring mental capacity;models, methods and tests (2005) Collier B, Coyne, Sullivan K. Leichardt :The Federation Press p116

[538] Sullivan K. Neuropsychological assessment of mental capacity Neuropsychology Review 2004; 14(3):131-142.

[539] Sullivan K in Mental Capacity. Measuring mental capacity; models, methods and tests (2005) Collier B, Coyne, Sullivan K. Leichardt: The Federation Press p116-118.

[540] Darzins, P, Molloy DW, Strang D. (Ed) “Who can decide? The six step capacity assessment process “(2000) Memory Australia Press, Adelaide, p8.

[541] Farnsworth MG.,.Evaluation of mental competency American Family Physician (1989) 39, 182.

[542] Sullivan K (2005) Op cit, p133.

[543] Sullivan K. 2004., Op cit, p 136.

[544] [2007] VCAT 1196, [66].

[545] Crowe, The parallel universe: Does neuropsychological assessment tell us anything about the real world? InPsych highlights, June 2005 (www.psychology.org.au/publications/inpsych/).

[546] Moye J., Marson D.C “Assessment of decision-making capacity in older adults: an emerging area of practice and research” Journal of Gerontology 2007; 62B3-11

[547] Okonkwo OC e al., op cit. (footnote 547).

[548] Marson, D.C., Sawrie, S.M., Snyder, S., McInturff, B., Stalvey T., Boothe A., Aldridge T., Chatterjee, A., Harrell, L.E. “Assessing financial capacity in patients with Alzheimer’s disease” Archives Neurology 2000; 57; 877-884.

[549] Griffith HR, Belue K/., Sicola A., et al (2003) “Impaired financial abilities in mild cognitive impairment” Neurology 60: 449-457.

[550] Marson Ibid.,

[551] Guardianship Act 1987 (NSW) s 25G(b) for the Guardianship Tribunal in NSW; Guardianship and Administration Act 1986 (Vic) s 46(1)(a)(iii), Guardianship and Administration Act 1995 (Tas) s 51(1)(3)(c), Guardianship and Administration Act 1990 (WA) s 64(1)(b).

[552] Guardianship Act 1987 (NSW) s 25G(c); Guardianship and Administration Act 2000 (Qld) s 12(1)(c); Guardianship and Administration Act 1985 (Vic) s 46(3); Guardianship and Administration Act 1995 (Tas) s 51(3); Aged and Infirm Persons’ Property Act 1979 (NT) s 12(1) and the Guardianship and Management of Property Act 1991 (ACT) s 8(1)(c)(ii).