Key responsibilities under the Act
The following are relevant sections from the Guardianship and Administration Act 2000 to which you must be abide.
- Appropriateness and competence (section 17)
- Notice of interest in land (section 21)
- Avoiding conflict transactions (section 37)
- Payment of expenses (section 47)
- Keeping records (section 49) and Records and audit (section 153)
- Keeping property separate (section 50)
- Investments (section 51)
- Gifts (section 54)
- Maintaining an adult’s dependants (section 55).
Appropriateness and competence (section 17)
When you applied as a proposed administrator, you signed a statutory declaration confirming that you were an appropriate adult and competent to act as an administrator.
There are a number of situations where your appointment can automatically be revoked or steps taken to remove you as administrator. You must tell QCAT if there are any changes to your circumstances which have affected your appropriateness or competence to act.
Notice of Interest in Land (section 21)
If the adult owns real estate, your appointment as an administrator must be registered with the Titles Registry.
Avoiding conflict transactions (section 37)
A conflict transaction is any transaction which causes a ‘conflict of interest’ between your duty to the adult and either your interests, the interests of a person in a close personal or business relationship with you, or another duty you have.
Where a conflict transaction cannot be avoided, you must apply to QCAT for approval before entering into the transaction.
Below are examples of transactions where there may be a conflict or which may result in a conflict between your duties as an administrator and the adult:
- the adult lives in a nursing home and you or a person in a close relationship with you live in the adult’s home
- you or someone in a close relationship with you buys the adult’s car, house or any other asset
- you or someone in a close relationship with you obtains a loan from the adult
- the use of the adult’s funds to obtain an asset such as a vehicle or property in the administrator’s name.
Payment of expenses (section 47)
You are entitled to reimbursement from the adult for ‘reasonable expenses’. You must decide what is reasonable given the adult’s circumstances and keep full records about the reimbursement.
All expenses relating to the adult should, as much as possible, be reflected in the adult’s bank statements for transparency purposes. Regular payments from your own bank accounts and bulk reimbursements from the adult’s bank account should be avoided.
Important note: Administratorsmaynot be paid for services. For example, if the administrator drives the adult to the shops, they are entitled to reimbursement for motor vehicle costs such as petrol but not for the time it took to drive them there.
Keeping records (section 49) and Records and audit (section 153)
You must keep detailed records of the administration on behalf of the adult including full details and records of the adult’s assets (what they own), liabilities (what they owe), income (what they earn) and expenses (what they spend). You may choose to use any method to keep these records such as ledgers, spreadsheets or a commercial software system. You may wish to use QCAT’s Recording of receipts and payments form .
If you use a commercially available system such as MYOB, you are still required to complete and lodge an Account by Administrator form . You may attach reports from your commercial software system as additional information.
QCAT may require you to have your accounts audited. Selection of an auditor will be based on the adult’s circumstances, in particular, the size and complexity of the estate and whether the recommendation of the QCAT financial assessment manager or a panel examiner. QCAT requires that the auditor is qualified as per the Trusts Act 1973 section 52.
Keeping property separate (section 50)
All bank accounts, real estate and investments and property are to be kept separate. Existing property in the adult’s sole name should continue in their name solely. Any property owned jointly by the adult and administrator eg, the family home or existing joint bank accounts can remain in joint names.
For example, bank accounts for the adult should be structured as follows:
- in the adult’s name with the administrator/s as signatories; or
- in the administrator’s name as administrator for the adult (eg, Mary Bloggs as administrator for Joe Bloggs). This structure should only be used in exceptional situations eg, when there is a real risk that the adult or another person may attempt to have unauthorised access to the bank account.
Important note – trustee bank accounts: Bank accounts should not be in your name as trustee for the adult. Trustee bank accounts are a contravention of the Guardianship and Administration Act 2000. Creating such an account causes significant legal problems about the ownership, taxation, liability and deceased estate administration.
Investments (section 51)
If you are going to invest money for the adult you must only invest in authorised investments made under the prudent person rule.
The prudent person rule refers to the duties and matters to be considered when investing for the adult and is contained in the Trusts Act 1973, Part 3. References to trustee in this section of that Act should be taken as applying to administrators.
The prudent person rule advises that when managing investments for another person, you must exercise care and diligence and adhere to a range of duties including:
- investing in investments that are not speculative or hazardous and which protect the best interests of all present and future beneficiaries
- obtaining advice and annually reviewing the performance of investments
- considering a number of matters such as the circumstances of the beneficiaries, the risk of capital or income loss and the likely return.
Important note: If you have concerns that a proposed investment might breach the prudent person rule, you can make an application to QCAT to have the investment approved.
If the adult held investments that were not authorised investments at the time of your appointment, you are allowed to continue these investments on behalf of the adult.
Gifts (section 54)
You can use the adult’s money to purchase gifts without approval from QCAT if the gift:
- is one that the adult would have made when he or she had capacity eg, birthday and Christmas presents to children or grandchildren
- is reasonable in terms of value, taking into account the adult’s individual circumstances
- is of a nature the adult might reasonably be expected to make eg, a wedding gift for a child or grandchild.
Important note: There are gifting provisions imposed by pension authorities such as Centrelink. These gifting provisions may not comply with the QCAT legislation and may require QCAT approval.
Maintaining an adult’s dependants (section 55)
You may provide for the dependant/s of the adult providing it is reasonable considering the adult’s circumstances, particularly their financial situation. A dependant can either be a child, spouse or another party who has been reliant on the adult.