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- Unreported Judgment
RCP QCAT 278
RCP  QCAT 278
Guardianship and administration matters for adults
6 May 2016
Senior Member Endicott
19 July 2016
It is directed that The Public Trustee of Queensland is entitled to reimbursement from RCP for legal fees incurred in The Public Trustee of Queensland acting as administrator for RCP.
GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – where an adult with impaired decision-making capacity had an administrator appointed for all financial matters – where a family member did not make provision for the adult in his will – where the administrator was under an obligation to investigate whether a Family Provision claim should be made on behalf of the adult – where the administrator engaged legal services to provide advice on such a claim – where disclosure was not made to the guardian of the adult that legal fees would be charged to the adult – where the guardian challenged the right of the administrator to reimbursement of the fees incurred from the funds of the adult – whether reimbursement of the fees should be directed
Guardianship and Administration Act 2000 (Qld), s 28, s 47
Public Trustee Act 1978 (Qld), s 17A
The Public Trustee of Queensland by C Miles
The Public Trustee of Queensland represented by I Campbell, for Official Solicitor of the Public Trustee of Queensland
REASONS FOR DECISION
- The Queensland Civil and Administrative Tribunal (QCAT) determined on 22 January 2015 that the appointments of a guardian and administrator for RCP would continue. RB had been appointed as the guardian for all personal matters for RCP and his appointment was made until further order of QCAT and was to be reviewed, as required by s 28(1)(b) of the Guardianship and Administration Act 2000 (Qld) (GAA Act), in five years.
- The Public Trustee of Queensland (the Public Trustee) had been appointed as administrator for all financial matters for RCP and this appointment was made until further order of QCAT. There was no review period stated in the order consistent with s 28(1) of the GAA Act.
- The Public Trustee applied to QCAT for directions that the Public Trustee could charge RCP with legal fees for legal work that had been carried out on her behalf. It was submitted by the Public Trustee that the Official Solicitor of the Public Trustee, the in-house legal services division of the Public Trustee, had undertaken work on the instructions of the Public Trustee in relation to a Family Provision matter following the death of RCP’s father. Legal fees were incurred by the Public Trustee for this work carried out by the Official Solicitor.
- The Public Trustee paid the Official Solicitor’s fees by deducting the amount of the fees from the funds being managed by the Public Trustee as the administrator for RCP. RB has objected to the legal fees incurred by the Public Trustee being charged to his sister.
- According to submissions filed by the Public Trustee, an officer within the Official Solicitor’s office had read and considered information contained in a range of documents relevant to a possible Family Provision application and had considered the financial circumstances of both the estate of the deceased and of RCP. That officer made a recommendation that a notice of intention to bring a Family Provision claim be given to the executors of the estate. The recommendation was approved by a very experienced succession lawyer within the Official Solicitors’ office and the notice was given within the time permitted by law. There was then a three month period in which to proceed with such a claim.
- According to submissions, after subsequent investigations were carried out, a recommendation was made by the Official Solicitor to the Public Trustee that a Family Provision claim should not proceed and that recommendation was accepted by the Public Trustee.
- Fees of $4,991.85 in an invoice dated 26 February 2015 were charged by the Official Solicitor for the work carried out under the instructions of the Public Trustee. Those fees were subsequently paid by the funds of RCP and are the subject of the dispute with RB.
- According to the submissions of RB, his mother was the executor and sole beneficiary of the estate. During a meeting with an officer from the Official Solicitor in June 2014, it was explained to RB that the Public Trustee had an obligation to investigate a Family Provision claim on behalf of RCP but he had not been informed that the investigation could result in fees being charged to his sister. RB submitted that he had not been provided with any costs agreement from the Official Solicitor nor had he been provided with any costs disclosure from the Official Solicitor.
- RB submitted that if he had been informed in advance that his sister would incur costs, he would have taken the opportunity to actively participate in the investigations to ensure that the costs were manageable. When he was informed on 23 July 2014 that a claim would not be proceeded with, he considered that the matter was at an end. He submitted that he had not, as guardian, consented to the investigations about a Family Provision claim and he had acted under a belief that the investigations would not cost his sister or anyone else in the family any monetary charge.
- RB submitted that there had been an unreasonable delay in disclosing to him that fees had been charged to his sister as it was not until December 2015 that he was made aware that costs had been charged against her funds. As a result of his queries about the propriety of charging the fees against his sister’s funds, the Public Trustee applied to QCAT for directions.
- The Public Trustee made submissions that he had taken steps to exercise his fiduciary obligation to investigate a possible Family Provision claim on behalf of RCP. It was submitted that a mere perusal of RCP’s budget would not fully discharge the obligations on the Public Trustee and work was undertaken to ascertain the viability of such a possible claim, including engaging the Official Solicitor for advice.
- It was submitted that the Public Trustee is empowered by s 17A of the Public Trustee Act 1978 (Qld) to obtain funds for expenses incurred on behalf of an estate from that estate being managed by the Public Trustee. In addition, s 47 of the GAA Act also entitles the Public Trustee to be reimbursed from an adult’s funds for reasonable expenses incurred as acting as administrator. It was submitted that there is no legal requirement to obtain the consent of a guardian to the expenses or to the reimbursement.
- At the hearing, RB told the Tribunal that he was not disputing the amount of the fees but he remained of the view that no fees should be charged to his sister. He challenged the way in which the investigation into a Family Provision claim had been conducted and the lack of disclosure to him at the start of the investigation about the fees to be incurred as a result of the decision of the Public Trustee to investigate and to engage the Official Solicitor.
- I accept the submissions of the Public Trustee that there was an obligation on the administrator of RCP to investigate whether a Family Provision claim should be made after the death of her father. All the estate was left to his wife in circumstances where some testamentary provision for his daughter may have been reasonable.
- I find that the administrator of RCP would be required to seek out evidence of RCP’s present and future needs and of any health factors that may impact on her life expectancy. An administrator would be required to seek legal advice on whether the evidence obtained would support a favourable Family Provision claim. Once the relevant evidence and legal advice was obtained, an administrator would then be in a position to make a final decision on whether such a claim should be made.
- I find that this is exactly what the Public Trustee did in this case. The legal advice about the claim was obtained from the Official Solicitor who I accept on the evidence has experienced and eminently qualified staff to provide this type of advice to the Public Trustee. The amount of the fees was not in dispute but in any event, the Tribunal has limited scope to adjudicate on the amount of legal fees charged by the Official Solicitor. It was not established that the Tribunal had any relevant power to set aside a costs agreement between the Public Trustee and the Official Solicitor nor to fix an amount of fees that the Public Trustee can incur on behalf of an adult subject to an administration order.
- The directions sought by the Public Trustee did not ask the Tribunal to quantify the fees that should have been incurred by the Public Trustee when making a decision about the Family Provision claim. The directions sought are whether the fees incurred by the Public Trustee should be charged to, and recovered from, RCP.
- I do not accept the submissions made by RB that the fees should not have been recovered from the funds of RCP. His arguments about lack of disclosure of the fact that fees would be charged and then a delay in disclosing that the funds of his sister had been used to pay the fees did not establish that the entitlement to reimbursement set out in s 47 of the GAA Act had been rendered nugatory. It may be that better communication may have been of assistance during June and July 2014. However, even if there had been improved disclosure of what steps would be taken, I can draw a reasonable conclusion that the Public Trustee would have sought and obtained legal advice about the Family Provision claim from the Official Solicitor. I accept the submissions that this is the manner by which the Public Trustee usually discharges the obligation to investigate these claims.
- The only issue is whether in all the circumstances the fees were reasonable expenses incurred by the Public Trustee in acting as administrator for RCP. I find that it was reasonable for the Public Trustee to engage the Official Solicitor to provide advice in this case. A proper investigation of a claim requires more than evidence gathering by a trust officer. It must involve consideration of the evidence, reading of documents relevant to the proposed claim and then formulating legal advice on the feasibility of the claim.
- It was reasonable for legal advice to be sought. Once the advice was given and a decision made not to proceed, the fees incurred in the process are properly fees incurred by the Public Trustee in discharging his obligation to RCP as her administrator. Those fees can be recovered by the Public Trustee from RCP under the authority provided by s 47 of the GAA Act.
- Published Case Name:
- Shortened Case Name:
 QCAT 278
Senior Member Endicott
19 Jul 2016