It’s been one year since the ABC broadcast its award-winning investigative program “State Control,” uncovering devastating stories about individuals stuck under the control of the state and territory Public Trustees in Australia. In the wake of the revelations of charging exorbitant fees, neglect, and gross mismanagement, several reviews and investigations into the Queensland Public Trustee were announced by the Queensland government. Attwood Marshall Lawyers Legal Practice Director Jeff Garrett reflects on these probes and finds there has been no real progress and our most vulnerable people and their families continue to be affected.
Background
On Monday 14th March 2022, ABC’s current affairs program Four Corners aired “State Control: Australians trapped, stripped of assets and silenced,” an investigation that exposed the Public Trustees’ long history of neglect, high fees, conflicts of interest and financial mismanagement.
The Four Corners reporters had to apply to the Supreme Courts in Queensland and Western Australia for exemptions to gag laws that would have otherwise stopped the interviewees from speaking out about the appalling guardianship and administration system.
Anne Connolly, Stephanie Zillman and Ali Russel were recognized for their year-long investigation, winning the Gold Walkley award for Public Service Journalism.
Crikey journalist Amber Schultz has also dug into the Public Trustee’s conduct, publishing a series of articles called “Kidnapped by the state” between September 2021 and November 2022.
These journalists are just a few of the determined professionals who are driven to bring the Public Trustee’s failings to light. The stories they told chimed with what we here at Attwood Marshall Lawyers have been hearing from clients for too many years.
The purpose of the Public Trustee is meant to be to protect the health and finances of their most vulnerable ‘clients.’ It is appointed as financial manager and guardian by a court or a tribunal to act for those who have lost the capacity to handle their own affairs. Yet, there are serious allegations that trustees are mismanaging funds, communicating poorly with the protected person and their loved ones, and withholding money and support, even when their clients are desperate for food, clothing, and other essential items, to name but a few failings.
After the Four Corners broadcast a year ago, the QLD government announced an investigation into the Public Trustee, and several other state trustees across the country also fell under scrutiny. Since then, however, news of any real legislative or regulatory change hasn’t been forthcoming. It’s been difficult too, to trace the status of these probes.
Harrowing stories also came out of the ongoing Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability in November 2022 that may drive more concrete change, but its final report is still a way off.
We’ve searched online for public updates on these investigations and ongoing reform promises. Our findings are broken down here:
The Disability Royal Commission
The Disability Royal Commission was first established in 2019 and covers a broad range of issues, from violence and abuse against people with disability, to examining guardianship, substituted and supported decision-making.
The Commission isn’t an enquiry into the Public Trustees specifically; however, the fact Public Trustees manage the affairs of many people with disabilities who have lost capacity means this comes under its purview.
As of 8 March 2023, the commission has held 32 public hearings, over 1500 private sessions and received about 8000 submissions.
A public hearing into the guardianship and trustee system was held over five days in November 2022 in Sydney, looking specifically at substituted and supported decision-making. According to media reports, the commission heard from witnesses and advocacy groups that guardianship and financial administration orders were being used too routinely due to time shortages and a misunderstanding of the system.
The final report is due to be delivered to the Governor-General by the end of September 2023.
The Public Trustee of Queensland
Investigating the Public Trustee of Queensland is not unfamiliar territory for the Queensland government. The Queensland Attorney-General had announced other reforms to the Public Trustee and Guardian schemes in 2020 and 2021.
But there has been no update on the Justice department website as to how its most recent review – announced after the Four Corners report a year ago – has progressed. And unfortunately, it appears that the Public Trustee scandal is not included on the Attorney-General’s current list of “Projects and Initiatives.”
In October 2022 the Justice department did however comment on the findings of an independent review carried out by PricewaterhouseCoopers into the Public Trustee, which has resulted in a temporary freeze on any increases to fees and charges.
Because of last year’s media attention, the Public Trustee of Queensland also commissioned its own ‘priority review’ through its independent complaint review mechanism. The self-funded body announced on 30 November 2022 that because of that probe it will be more transparent around its fees and charges, communicate more clearly and deliver better support to its customers, network, and staff.
The trustee said it has been making changes to its operational processes, fees and charges and how it identifies issues to drive reform. In 2023 it plans on embedding those changes into its training programs and internal policies, according to the statement.
Much of these reforms have been in response to a report by the QLD Public Advocate in January 2021, which found the state public trustee was driven by profit, had been charging excessive fees (including the wrongful use and charges of the internal ‘Official Solicitor’), and had breached its duties to its clients.
The independent body tabled 32 reform recommendations, directed at either the public trustee or the Queensland government.
The Four Corners program aired ten days after the Public Trustee had announced that it had responded to all 23 actions that the Advocate had given it responsibility for.
In the year since, there has not been any further update on the 10 actions it had implemented, nor on the progress towards the 12 recommendations that it planned to complete by the end of the 21/22 financial year, nor an outstanding recommendation that the Public Trustee had said was “under further consideration.”
The Public Advocate has said it is continuing to monitor the Public Trustee’s progress. The advocate also followed up its focus on Trustee and Guardian schemes in August 2022, publishing another report into the Queensland guardianship system’s confidentiality requirements, concluding that any protective benefit for keeping the gag laws in place were now outweighed by the cost of preventing people from talking publicly about their experiences. We couldn’t find a public response from either the Public Trustee or the Public Guardian.
Other states
Tasmania
In December 2022, the Public Trustee of Tasmania published a progress update on how it has been implementing recommendations from an independent review of its administrative and operational practices.
Of the 28 recommendations, 15 have been completed, eight are marked “in progress” and due to be completed within 12 months, and the remaining five are labelled “supported in principle,” subject to either a completion of a review or requiring further consideration or agreement.
New South Wales
Attwood Marshall Lawyers have acted for several clients against New South Wales Trustee and Guardian, including a particularly traumatic case that we wrote a blog about in 2019 (click to read).
Yet, the NSW Trustee and Guardian has only made one announcement recently that could be related to reform, and that was a summary of the Disability Royal Commission’s sixth progress report in October 2022. The announcement mentioned that a policy roundtable on “best practice models of guardianship” was held in June 2022, during which participants agreed that: the number and length of guardianship orders should be reduced; there should be equal access to support for decision-making; safeguards needed to be simple and accessible; and more awareness and capacity building was needed alongside legal and policy reform.
There was also a very short announcement in June 2022 that the NSW Trustee and Guardian has created additional roles and teams to “provide more helpful and timely customer services.”
Western Australia
There have been calls for an inquiry into Western Australia’s Public Trustee, following media coverage of its failure to handle deceased estates appropriately. According to an October news report, the WA Department of Treasury is currently reviewing the WA Public Trustee’s self-funding model, after recommendations from the state’s Auditor General. However, we couldn’t find any update on that review on the Treasury’s website.
Victoria
The Victorian Ombudsman recently said that it received 6 per cent more complaints about the State Trustees VIC in the financial year 2021-2022 compared to the year before. One was from a person with disabilities whose power was disconnected because the trustee had failed to pay the invoices. The ombudsman had released a damning report in 2019 over the State Trustee’s failures, issuing a string of recommendations. We couldn’t find an update online on how these recommendations have or have not been implemented.
Not good enough
Despite a year passing since the gross failings of the public trustee scheme were brought into the limelight, very little has been done by government to fix them. Where progress has been made, it’s been piecemeal, slow, and largely in response to an existing reform schedule.
We continue to see evidence of the lack of change in the significant number of enquiries we receive every week from individuals seeking help in their dealings with the Public Trustee.
Although Four Corners focused largely on Queensland and Western Australia Trustees, the other states and territories across Australia are not immune. The horror stories that continue to land at our door from across the nation are testament to that.
We continue to call for fundamental change across every state and territory, and it must happen now, not in piecemeal efforts. It could be that a national enquiry is needed by way of a Royal Commission, which may force the state governments and territories to engage in some meaningful change.
Have you had a difficult time dealing with a Public Trustee? We can help to remove the Public Trustee from your life!
If you believe the Public Trustee are charging exorbitant fees, mismanaging someone’s financial affairs, or failing to administer a deceased estate appropriately, it is important to seek legal advice from an experienced estate litigation lawyer who understands how the Public Trustee operates and the process involved to hold them accountable and have them removed from the matter.
Our estate litigation team have represented hundreds of clients in Public Trustee disputes, and successfully negotiated exorbitant fees, resolved disputes over mismanagement of financial management orders, and submitted applications to the Court to seek 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 5506 8245, email aheather@attwoodmarshall.com.au or phone 1800 621 071.
We will continue to fight for people who have suffered under the control of the Public Trustee.
