Recently on the ABC’s flagship investigative program Four Corners, there was a disturbing report by award-winning journalist Anne Connelly on state and territory Public Trustees. The program highlighted heart-breaking cases of vulnerable Australians being trapped, neglected, stripped of their assets and charged exorbitant fees by the Public Trustees who are supposed to be protecting them. Unbelievably, these ‘protected persons’ were silenced in Courts if they dared challenge the appointment, with the Public Trustees using their own money to oppose them! This week on Radio 4CRB, Attwood Marshall Lawyers Legal Practice Director Jeff Garrett joined Robyn Hyland to discuss the fallout from the explosive Four Corner’s program and how people can structure their estate planning and their affairs to avoid the Public Trustee ever having an involvement if someone loses capacity or dies.
The fallout from 4Corner’s Report – State Control: Australians trapped, stripped of assets, and silence
ABC’s Four Corner’s exposed what The Public Trustees are doing around Australia. No matter which state they are based in, they have a similar modus operandi in relation to the mismanagement and mistreatment of Australia’s most vulnerable people.
The cases that were exposed on the Four Corners program were heartbreaking and showed just how badly people are being mistreated.
Four Corners investigated a number of cases where individuals stated they were being held against their will and prevented from living in their own homes.
The investigation took over 12 months to complete. Unfortunately, current legislation provides automatic non-publication/suppression provisions for Public Trustee matters. This places strict limits on the media’s ability to report on these cases, meaning the agency is not open to public scrutiny or held publicly accountable for its actions.
Four Corners had to go to the Supreme court to fight for the right to let the victims of The Public Trustee’s system tell their stories, and they succeeded.
This is by no means the first time The Public Trustee has made news headlines. It was around this time in 2019 that Attwood Marshall Lawyers appeared in the news calling for an inquest into The Public Trustee.
Crikey has also completed a series of investigative reports exposing the secret world of state-sanctioned control of society’s most vulnerable, called “Kidnapped by the State”. The first articles were released in September 2021, with more horrific reports shared earlier this year.
In addition to the countless reports coming to light, in 2021 The Public Advocate’s Review: Preserving the financial futures of vulnerable Queenslanders, a review of Public Trustee fees, charges and practices was tabled in 2021. This review was extremely comprehensive and looked into all the areas and functions of the Queensland Public Trustee. The report provided 32 recommendations which the government announced that they will adopt the majority of.
Within 24 hours of the 4Corners story airing, The Queensland Government announced that they have ordered two separate investigations into the state’s Office of the Public Trustee.
That’s three reviews that have now been announced in less than a year, following a long line of inquiries into state-sanctioned control.
Queensland is not the first state to be under scrutiny, with inquiries being launched periodically across the country. And little has changed no matter which state you look at.
We can only hope the time has come that finally something will be done about it!
Has the Public Advocate Review and other inquiries bought the change that is necessary?
After the Public Advocate’s Report was tabled in parliament in 2021, the government announced that they were doing an internal review in relation to their fees. However, very little has come from that, and it has been over 12 months since that report was tabled.
Unfortunately, fee gouging is only the tip of the iceberg when it comes to the maladministration, mismanagement, and mistreatment of the community’s most vulnerable people.
A year on from the Public Advocate Review, only 10 of the report’s 32 recommendations have so far been addressed, with another 12 of those recommendations expected to be completed this year.
The Public Trustee of Queensland has stated that their customers have responded positively to some of the changes that have been implemented, with complaints down 20 per cent. Yet, at Attwood Marshall Lawyers, we have seen a significant increase in enquiries related to Public Trustee disputes, with hundreds of enquiries flowing in this year already.
The Public Advocate released an implementation update on the 10th of March 2022 to monitor the progress of the 32 reform recommendations made in the original review.
Below is the current status of each of those recommendations:
- Undertake a full fees and charge review: In progress – it has been over 12 months!.
- Improve the transparency of fees and charges: Implemented (allegedly)
- Consider the effect of fees when appointing the Public Trustee as financial administrator: Stakeholders are currently being consulted in relation to this recommendation.
- Reconsider the practice of routinely obtaining external financial advice: Implemented (allegedly)
- Discontinue general fees for incidental outlays: Further consideration in progress
- Seek a Goods and Services Tax exemption: The Public Trustee is seeking an exemption from the ATO with the support of Government. Application pending.
- Review Community Service Obligations: In progress.
- Discontinue client subsidisation of community service obligations: Further consideration in progress.
- Limit the level of community service obligations: Further consideration in progress.
- Review fee rebate and financial hardship provisions to ensure client assets are not depleted by fees and charges: In progress.
- Do not profit from administration clients unless expressly permitted by law: Stakeholders are currently being consulted in relation to this recommendation.
- Improve transparency of Public Trustee revenue sources: Implemented (allegedly, but still murky!).
- Clearly report the fees and costs of managing Public Trustee investments: Implemented (ditto as above).
- Stop requiring administration clients to pay double charges on their funds: Further consideration in progress.
- Limit the amount of Public Trustee surpluses and reserves: Stakeholders are currently being consulted in relation to this recommendation.
- Review investment practices and discontinue activities that do not directly benefit clients: Implemented – questionable!
- Review and update the Prudent Person Manual: Implemented, but the internal ‘manual’ has not been disclosed.
- Publish the Prudent Person Manual: Implemented – as above.
- Review position on conflict transactions: Further consideration in progress.
- Review the practice of only investing in Public Trustee Investment products: In progress.
- Adopt a new client investment strategy: The Public Trustee claim to have accepted and implemented this recommendation. Further comments from The Public Trustee state that their Customer Investment Strategy was independently reviewed in December 2020. The Public Trustee has stated that they have considered the recommendation and are in the process of implementing a revised Customer Investment Strategy to transition to customers in 2022 which incorporates all aspects of this recommendation. The Public Trustee claims to have also separately been reviewing all agreements with providers of direct services to Public Trustee clients to ensure that customers are receiving value for money.
- Reconsider routinely obtaining external financial advice for certain types of assets: Implemented – questionable.
- Obtain advice about refunding financial advice fees: Further consideration in progress.
- Review the role and operations of the Official Solicitor: In progress.
- Develop a policy to support administration clients to make complaints about the Public Trustee: Implemented, however, most complaints are not actioned promptly and are rarely upheld or acknowledged.
- Amend legislation so Public Trustee solicitors are overseen by the Legal Services Commission: Stakeholders are currently being consulted in relation to this recommendation.
- Review Official Solicitor policies and practices: In progress.
- Considerations for the review of Public Trustee fees and charges: In progress.
- Amend legislation to clarify how the Public Trustee can invest client funds: Stakeholders are currently being consulted in relation to this recommendation.
- Consider additional oversight mechanisms: On 28 October 2021, the Government introduce the Public Trustee (Advisory and Monitoring Board) Amendment Bill 2021 (the Bill) which proposes to amend the Public Trustee Act 1978 to establish the Public Trustee Advisory and Monitoring Board which will provide additional oversight.
- Update the Public Trustee Act to better acknowledge rights and interests of people with impaired decision-making capacity: Stakeholders are currently being consulted in relation to this recommendation.
- Amend legislation to ensure the Public Trustee is an appointment of last resort and the appointment is periodically reviewed: Stakeholders are currently being consulted in relation to this recommendation.
Will a compensation scheme be introduced to compensate those that have suffered under The Public Trustee?
The CEO of ‘Your Say Advocacy Tasmania’, Leanne Groombridge, has come out and called for a compensation scheme for the people who have had their finances mismanaged.
Unfortunately, there has not been a great take up by any state governments or territories to implement a compensation scheme and it remains to be seen if anything will be put in place.
Unfortunately, in the absence of a compensation scheme, people are left to their own devices and must get independent legal advice to take action against the Public Trustee.
This can be very difficult to do when the Public Trustee is controlling the finances of people under their management. In many cases, people under the management of the Public Trustee do not have access to their own finances and therefore cannot fund their own legal case to take action or have them removed from their position of power.
Anyone in this position must find a lawyer who will take on their case on a no win no fee basis, or alternatively borrow funds from friends or family to be able to take legal action, which in many cases is not an option.
This is one of the main conflicts that the Public Advocate Review found in relation to the QLD Public Trustee, where a conflict of interest was identified with the Public Trustee using their inhouse lawyers, the official solicitor, to fight people applying to have them removed. In doing so, the Public Trustee were using their client’s money to fight them legally.
This is a devastating situation to be happening to our community’s most vulnerable people!
What people can do to avoid this happening to them – how to keep the Public Trustee out of your life!
Lesson 1: Structure your estate planning very carefully and seek legal advice from a lawyer experienced in this area of law.
Don’t go to the Public Trust Office to take up the offer of their Free Will! In most cases, they appoint themselves, or encourage the Will-maker to appoint them as the executor of the estate.
Once they are nominated as the executor they have total control as to what happens when you die. They have a history of delay, charging exorbitant fees, and failing to properly protect the assets of the estate.
If you have taken up the offer of a free Will with the Public Trustee, it is recommended that you review your Will and have it updated by an independent estate planning lawyer who can draft a new Will to replace and revoke your previous Will. All you have to do is a new Will – that will revoke the Will held with the Public Trustee! There are many cost-effective options available to have your Will done by an experienced estate planning lawyer. We hold many charity Wills Days where you can get your Will done for a modest donation. But don’t delay in having your Will updated! Tempus fugit!
Lesson 2: Have an Enduring Power of Attorney in place (and make sure you are careful who you appoint!)
Having an Enduring Power of Attorney in place appointing people that you trust who can step into your shoes if you ever lose capacity is a must for everyone, but particularly if you don’t want the Public Trustee involved in your affairs! Most of the cases that the Four Corners story dealt with were people who did not have the capacity or had lost the capacity to some extent which affected their ability to handle their own financial affairs. They either did not have attorneys appointed under an Enduring Power of Attorney document, or there was a dispute between their attorneys which resulted in the Public Trustee being appointed instead of the Attorneys.
If you have an Enduring Power of Attorney appointing someone, or a number of people, to act on your behalf if you ever lose capacity, they will step in to make decisions on your behalf, and not the Public Trust Office.
One thing that you need to be extremely careful about when appointing attorneys is that if you appoint more than one attorney, they get along. One of the biggest issues that arise when attorneys need to step in and take control over someone’s affairs is that if they fight over decision making in relation to their parent or grandparent under a Power of Attorney, it then ends up escalating to QCAT who will determine that because there is a dispute between the family members, the person’s affairs are to be handled by the Public Trustee!
Make sure the attorneys you are appointing get on and are going to be consistent with their decision making. Do not appoint multiple family members if they do not get along or are not trustworthy. You would be better to appoint an independent professional and a family member if there are issues between your adult children getting along. The danger is it will end up in QCAT (or the relevant state tribunal) and they will have no hesitation appointing the Public Trustee to ‘manage’ your financial affairs!
What options are available for anyone who is dealing with the Public Trustee and are unhappy with their service or management of either their affairs or that of a loved one?
Unfortunately, the options are minimal when you find yourself in this situation.
You can complain to the ombudsman, but the ombudsman generally doesn’t like getting involved in these types of matters.
The best thing is to get legal advice from a law firm that knows how to handle matters of this nature. An experienced estate litigation lawyer will be able to advise what options are available to either have the Public Trustee removed and if you can make a claim for compensation for the maladministration of your affairs by the Public Trust Office.
Attwood Marshall Lawyers will continue to fight for change and help people experiencing problems with Public Trustees
If you are put in a position where you are in a dispute with the Public Trust Office, don’t blindly accept what they tell you. The Public Trust office has shown that they lack the ability to communicate effectively with people. They withhold information and they don’t always give people the right advice.
It is essential to seek professional legal advice if you are involved in a dispute with the Public Trustee or are concerned about their conduct in managing the affairs of someone you love.
There are alternative options available, and if you feel the Public Trust Office has not fulfilled their fiduciary duty, you can have them removed and challenge their fees.
We have seen a significant escalation in enquiries from those hurt by the Public Trustee in all states of Australia. We continue to see the aftermath of unqualified personnel giving legal advice and charging exorbitant fees stripping beneficiaries of their entitlements and delaying the administration of deceased estates.
As a leading estate litigation law firm, our lawyers have extensive experience in Public Trustee matters. We can help you if you are experiencing problems with Public Trustees, including assisting with:
- the mismanagement of deceased estates where the Public Trustee is the Executor
- the mismanagement of a person’s affairs under financial management orders
- negotiating exorbitant fees and seeking refunds
- applications to the Court to remove the Public Trustee completely so that you can handle your own affairs or appoint alternative trustees.
- making claims for compensation and damages for losses suffered as a result of the negligence of the Public Trustee, including financial losses, exorbitant fees, and actions for false imprisonment and/or psychological injuries suffered.
For all Public Trustee related enquiries, please contact our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071.
Read more:
4 Corners program exposes Public Trustee horror stories: vulnerable Australians trapped, neglected, stripped of assets, charged grossly excessive fees, and silenced with their own money!
QLD Public Advocate Review exposes Public Trustee’s failings and conflicts of interest
QLD Public Advocate Review: Part 2 – Why we are seeing an increase in Public Trustee Disputes
