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The Public Trustee continues to flourish under cloak of secrecy – gag laws must be abolished!

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Attwood Marshall Lawyers Legal Practice Director Jeff Garrett joins Robyn Hyland on Radio 4CRB to discuss recent cases with the Public Trustee and the ‘gag laws’ that are still in place stopping people harmed by the system from telling their stories. Anyone who attempts to expose the Public Trustee’s conduct under the current legislation faces possible fines or imprisonment.

Background

Following the investigative reports by the ABC last year which aired on Four Corners and the 7.30 report telling the stories of several clients severely affected by the mismanagement under the Public Trustee system, the ABC received hundreds of emails from people claiming they had also suffered psychologically and financially from mistreatment under the system.

Due to the strict gag laws, the people could not be named or publicly tell their stories.

Anne Connolly and the ABC have been investigating the Public Trustee system nationally, and the state of the aged care sector in Australia for five years, raising awareness about systematic issues and shining a light on the fact people’s human rights are being taken away.

To continue their fight for justice, the ABC once again took legal action to challenge the gag laws. They won the cases and were able to reveal two more heart-wrenching stories that involve two Queenslanders whose lives have been turned upside down by the QLD Public Trustee.

Gag Laws – silencing the most vulnerable people in our community

State and Territory Guardianship and Administration Acts impose fines and possible imprisonment for those who breach the Act by revealing the identities and stories of individuals under the control of the Public Trustee.

The ABC has managed to share specific stories in the past by taking legal action and arguing that the individuals involved raised human rights concerns, making it a matter of public interest.

People that have suffered under the control of Public Trustees around the country are motivated to share their experiences to prevent similar incidents from happening to others, to regain what they have lost, and to expose the Public Trustee for their conduct.

Unfortunately, these individuals are currently restrained and unable to be identified, all under the guise of “protection”. The laws, initially designed to safeguard vulnerable people from exploitation, have become outdated and hinder those who have suffered harm. The purpose of these laws was to maintain confidentiality regarding the affairs of those who have lost capacity, rather than enabling the Public Trustee to silence any critique of their conduct.

It is in the interest of the Public Trustee strongly to support the retention of these laws, to continue to suppress stories about their incompetence, mismanagement, and mistreatment of the most vulnerable members of our society. Despite extensive exposure and many people lending their voices to advocate for change, progress is yet to be made to have the laws reviewed.

Why the Public Trustee gets appointed to control people’s affairs

More than 46,000 people’s lives are controlled by trustees and guardians around the country.

The Public Trustee is supposed to be a socially and fiscally responsible state government statutory authority which steps in to look after someone who is at risk of financial exploitation, whether that is a person who has suffered an injury, illness, mental health issue, or cognitive impairment such as dementia.

If appointed administrator, the Public Trustee should ensure an individual’s correct income is received, accounts are paid, and a budget and assets are well maintained in the best interests of that person.

Decisions being made on behalf of that person should be least restrictive of their rights, interests and opportunities and their personal dignity and right to make decisions should be upheld. Sadly, from the hundreds of stories we hear every year, this is far from reality.

So, how do so many people find themselves under the control of Public Trustees? In some cases, people voluntarily put their affairs in the hands of the trustee when they believe they cannot make decisions for themselves anymore. However, in most cases, the Public Trustee is often appointed administrator of someone’s affairs when that person has ended up in hospital and a social worker has raised a red flag about their decision-making capacity and applies to a tribunal for the Public Trustee to be appointed as that person’s financial manager or attorney (despite in many cases little to no evidence of loss of capacity). Alternatively, there are also the many cases that have ended up in front of a tribunal where an individual has an Enduring Power of Attorney in place, but the attorneys they have appointed to act on their behalf are involved in a dispute, or questions are raised about if the attorneys are managing the finances of the individual in the most appropriate manner.

In QLD, it is the Queensland Civil and Administrative Tribunal (QCAT) that handles these types of matters; in NSW, the NSW Civil and Administrative Tribunal (NCAT), and the Victorian Civil and Administrative Tribunal (VCAT) in Victoria. Each state and territory has its own tribunal with similar powers and legislation.

In most cases, when questions are raised either about the conduct of an attorney under an Enduring Power of Attorney, or if someone’s capacity is bought into question after they have been admitted to hospital and that person does not have an attorney appointed, then the tribunal will refer the management of that person’s affairs to the Public Trustee.

Read more: Mental capacity issues in day to day living

Too many devastating stories

According to accounts shared by those who have managed to publicly disclose their experiences with the Public Trustee, a recurring narrative emerges.

People who come under the control of the Public Trustee often possess significant assets including businesses, properties, and savings in bank accounts.

Despite the wealth they hold, regrettably after the involvement of the Public Trustee, these individuals must endure distressing outcomes, including being left homeless, being moved into an aged care facility against their wishes, and being plunged into poverty with no support network, cut off from their own financial resources.

The Public Trustee proceeds to liquidate the protected person’s assets, including their home and personal belongings, to convert them into cash.

The cash is then eroded by the exorbitant fees charged by the Public Trustee for ‘managing’ the protected person’s affairs and is usually ‘invested’ in three internal Public Trustee funds. These issues were also investigated by the Qld Public Advocate, who delivered a report on 10th March 2021. This report and the outcome is discussed in our blog and podcast of an interview with Jeff Garrett here.

Being put in this situation only exacerbates any health concerns or psychiatric conditions the protected person already suffers.

No matter how bad the situation gets, individuals under the management of Public Trustees cannot speak out, they cannot go to the media, because they are silenced by the gag laws in place which are intended to “protect” them.

If the protected person wants to try to have the Public Trustee removed from their position of power, the Public Trustee then use their inhouse lawyers to oppose any applications to have them removed and charge the protected person the legal fees to do so from their own money.

What is being done to improve the situation?

There have been internal reviews, media scrutiny, and a lot of empty state government promises about the changes that must be implemented to better protect the most vulnerable people in our community.

Earlier this year, the Queensland Public Trustee released a statement about the progress they have allegedly made in responding to the Public Advocate’s Report recommendations.

The Queensland Public Trustee stated that it has completed a review of its fees and charges, and shifted their focus to improving customer services to help meet the individual needs of the people it supports.

They also claim to have established a Customer Advocate Office, the Financial Independence Pathways (FIP) Program, and Structured Decision-Making Framework which intends to transform the Queensland Public Trustee’s client service model to support decision-making practices.

According to the Public Trustee, they have observed a downward trend in the number of complaints being made by their clients because of these changes.

As a law firm that handles Public Trustee disputes, we continue to receive enquiries daily from people facing the same issues as those that have been able to share their stories on the ABC programs. We are yet to see real change in this space and continue to see too many people suffering because of the mismanagement and mistreatment of Public Trustees all around Australia.

How to avoid this happening to you

Unforeseen circumstances, particularly in matters related to health, can be difficult to plan for. However, one powerful tool we do have in our legal tool kit is an Enduring Power of Attorney (EPOA). An EPOA is an essential measure that can safeguard you now, and in the future, ensuring your best interests are protected.

Regardless of your age or health status, it is crucial for everyone to have an Enduring Power of Attorney, appointing a person that they trust implicitly to make decisions on their behalf if an unexpected event occurs and they become unable to make such decisions independently.

When appointing an attorney, it can be beneficial to appoint a reserve in case something happens to the primary appointment, and they cannot act for you.

If you choose to appoint more than one attorney to act on your behalf, it is vital to ensure they have a harmonious relationship and can make decisions jointly without disputes arising.  

An Enduring Power of Attorney is an extremely powerful document, and it is important to seek guidance from a knowledgeable estate planning lawyer who specialises in this area to obtain advice about the best way to structure the document, and who is the most appropriate person to appoint to the role.

If you do not have anyone in your life who you consider suitable to fulfil this responsibility on your behalf, there are alternative options available to avoid the Public Trustee ever being put in this position of power over you.

Read more: Public Trustees – alternatives to consider

If the Public Trustee has been appointed to manage your affairs and you want to have them removed, seek help from an experienced estate litigation lawyer who has a comprehensive understanding of the system and the process involved in removing the Public Trustee from their role.

Attwood Marshall Lawyers is well-versed at handling these types of matters and can be contacted any time to help you understand your rights and the steps you need to take.

Attwood Marshall Lawyers – helping people understand their rights

Whether you have been charged exorbitant fees in an estate administration matter, or believe the Public Trustee have mismanaged your financial affairs, or those of a loved one, we can provide expert legal advice to help you understand your rights and the process involved to hold the Public Trustee accountable, or, have them removed from their position.

Our estate litigation lawyers have represented hundreds of clients in Public Trustee disputes and successfully negotiated fees, resolved disputes over mismanagement of financial management orders, and submitted applications to the Court to have an alternative trustee appointed as executor to an estate.

If you are involved in a dispute with the Public Trustee and need assistance, please reach out to our team any time by contacting our Estate Litigation Department Manager Amanda Heather on direct line 07 5506 9245, email aheather@attwoodmarshall.com.au or free call our 24/7 phoneline on 1800 621 071.

Alternatively, you can make an appointment with our lawyers by booking online. Click here to book now.

We continue to fight for people who have suffered under the control of the Public Trustee and to raise awareness about these issues.

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Jeff Garrett - Legal Practice Director - Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

Jeff Garrett

Legal Practice Director
Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

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Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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