Another year has passed, and we are still waiting to see any real change applied to how the Public Trustees around the country operate and treat the most vulnerable people in our society and the families of people who die and appoint the Public Trustee as executor of their estate. Attwood Marshall Lawyers Legal Practice Director Jeff Garrett recently joined Robyn Hyland on Radio 4CRB to discuss the ongoing issues the community face when dealing with Public Trustees and how to protect yourself from ever having the Public Trustee involved in your life or that of a loved one.
The year that was – exposing the truth
Despite the Queensland Public Trustee gloating about their progress earlier this year, after the scathing report by The Public Advocate’s Review of Public Trustee fees, charges and practices (tabled in 2021), little has changed in relation to further regulating the Public Trustee.
Shortly after the Public Trustee of Queensland announced their commitment to improving their practices, ABC’s Four Corners released their gripping report “State Control”, which revealed the devastating stories of the people under the control of the Public Trustee.
Following ABC’s report, the Queensland Government ordered two investigations into the state’s Public Trustee. However, nothing much has come of those ‘investigations’.
News source ‘Crikey’ also released a series of articles this year called “Kidnapped by the State”, which uncovered more disturbing cases.
In May 2022, the Tasmanian state government released their response to an independent review of the administrative and operational practices of the Public Trustee of Tasmania.
There have been calls for an inquiry into Western Australia’s Public Trustee, which comes after the media coverage of the Public Trustee’s failure to handle deceased estates appropriately. Unfortunately, the same applies to the NSW Trustee and Guardian who has managed to avoid an inquiry to date (something extremely overdue and an issue that Attwood Marshall Lawyers will continue to fight for).
Despite all the coverage, inquires, and promises, what has transpired in 2022?
The role of the Public Trustee
The Public Trustee is a state or territory government-created entity that handles the affairs of the most vulnerable people in the community who do not have the capacity to manage their own affairs.
They also offer services to act as executor of an estate after people pass away, and manage the deceased administration process, including obtaining Probate. If someone dies without a Will and there is no one in the family who qualifies to act as an administrator of the estate, most state and territory succession laws stipulate the Public Trustee is to step in and administer the estate.
The Public Trustees’ executor services, deceased estate management, and financial administration services have been in the spotlight over the past 12 to 18 months, with Public Trustees exposed for sustained and ongoing periods of neglect, overcharging, and generally not looking after the vulnerable people in their care.
ABC’s Four Corners “State Control” Report: the importance of bringing these stories to light
In November 2022, the Four Corners team from ABC won the distinguished Gold Walkley award for their investigative report on the Public Trustee after already winning a Queensland Clarion Award one month earlier. The Public Trustee investigation was a 12-month project for Anne Connolly and her team and was extremely challenging.
The shocking stories that were uncovered led to public furore all over the country.
We are proud to have been part of the program assisting ABC and Anne in her investigative journalism. For many years Attwood Marshall Lawyers have tried to expose the failures of the Public Trustee system and call for enquiries, ensuring the community is educated about what is going on and that there are alternative options available.
Unfortunately, Australia’s “gag laws” prevent anyone under the control of Public Trustees from speaking out and having their stories told.
It took Anne Connolly a 12-month battle and an application to the Supreme Court to have the gag laws lifted in certain cases so that the victims could share their horror stories.
The ABC’s coverage of these issues is welcomed publicity for such a significant problem impacting many Australians.
What are the “gag laws” meant to achieve?
If used in their proper sense, they are good laws that protect the privacy of people whose affairs are handled by state departments. The laws stop vulnerable people who lack capacity from being publicised.
Unfortunately, Public Trustees around Australia have used these laws to stave off any enquiries or publicity concerning vulnerable people they are looking after in terms of a financial management order or guardianship order.
If you expose their conduct or neglect, they immediately apply to the Court to shut it down.
The strict gag orders on the media are in place to prevent journalists from identifying those under financial administration and guardianship, and legislation prevents those under orders from discussing their experiences publicly in the tribunals.
If a journalist tells someone’s story under the management of the Public Trustee and identifies that individual, they can face six months in jail and fines of up to $50,000.
Queensland Crime & Corruption Commission trying to expose previous QLD Public Trustee’s conduct
In 2019, the Queensland Public Trustee, Mr Peter Carne, was suddenly stood down after allegations of misconduct were made against him, resulting in him resignation from his position.
Mr Carne acted as the Queensland Public Trustee for nine years.
It is unclear why he was stood down, and any evidence or reports surrounding the allegations have been kept under wraps.
Mr Carne has been fighting since this time to stop the publication of the investigation by Queensland’s Anti-Corruption Watchdog. He successfully took the matter to court and sought orders to conceal these reports.
QLD’s Corruption Watchdog forwarded the report to the Parliamentary Crime and Corruption Committee and asked the committee to give the report to the Speaker.
By doing so would allow the report to be published, and the allegations within would be protected by parliamentary privilege – a legal defence that would nullify any defamation claims by Mr Carne.
In response, Mr Carne started legal proceedings in the Supreme Court to try to stop the process. He lost that case.
Mr Carne then challenged the Court’s decision in the Court of Appeal, who ruled in his favour.
The fight has since continued, with the watchdog not ready to give up, and in November 2022, the Queensland Crime & Corruption Commission took their fight to the High Court to try to get a report made public about the former Public Trustee.
Although we do not allege any bad behaviour or misconduct on the part of the former Public Trustee, as this has not been determined by a Court or tribunal, it is not a good look when the man who is supposed to be looking after the most vulnerable people in our community ends up in a corruption commission investigation, and then tries to quash the investigation being publicised.
He may have good reasons for doing so; however, the fact that he is involved in that type of scandal in his position leaves a bad taste about the Queensland Public Trustee in general.
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, and substituted and supported decision-making.
The Disability Royal 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 is going to come under the prevue of the Disability Royal Commission.
The Royal Commission has wide powers, and including statements and evidence from those who have had dealings with Public Trustees will help drive positive change in this area. What they find will hopefully force the state governments to act in relation to the Public Trustees.
On 21st November, hearings began to be heard by the Royal Commission.
Public hearings are held around the country to gather evidence about violence, neglect, abuse, and exploitation of people with a disability. Witnesses will give evidence under oath or affirmation about issues and events relevant to the Commission.
Regarding the evidence given by those under the control of Public Trustees, once again, journalists and the media will be unable to report on what is presented, and the gag laws will be in play.
The Royal Commission hopes to achieve a complete examination of Australia’s guardianship and administration laws and policies, focussing on how substituted decision-making impacts the rights of people with disability.
There is an importance of autonomy for people with disability, including the freedom to make their own choices and express their independence. This autonomy and freedom have been taken away for those under the Public Trustee, and more of this will come to light as the hearings continue.
How the Public Trustee becomes involved in so many people’s lives
The Public Trustee has over 10,000 clients under their financial management each year in Queensland.
There is a concerning trend where anyone can apply to state tribunals to have the Public Trustee or Guardian step in to take control of someone else’s affairs.
That means people with no real relationship with someone, or idea of what their mental capacity and abilities are to look after themselves, can raise the alarm and make an application for that person to be appointed a guardian, or attorney, to make decisions on their behalf.
It is often the case that when an elderly person is admitted to hospital after being ill or suffering an injury after a fall, someone raises the alarm and questions their capacity, going on to make an application to the state tribunal.
The same happens in aged care facilities or by NDIS providers.
Failing that, if the person does not have an up-to-date Enduring Power of Attorney appointed, in most instances, the state tribunal will not appoint a family member or friend to look after that person’s affairs if they believe they do not have the capacity to manage their own affairs. Instead, the tribunal will default to appointing the Public Trustee.
Even if someone has an Enduring Power of Attorney, if there are people arguing over decisions made by the attorney, or co-attorneys are unable to make decisions unanimously, it is often the case that one party takes the matter to the state tribunal (QCAT in Queensland or NCAT in New South Wales) which results in the tribunal renouncing their appointment and appointing the Public Trustee to take over that role.
Heed the warning – how to avoid the Public Trustee
It starts and ends with your own Will and Enduring Power of Attorney.
Unfortunately, the Public Trustee heavily advertises ‘free’ Will writing services, which is where so many people get caught in the web. It may be ‘free’ Will, but the costs and neglect will be there to be suffered by your family after you die.
Despite the Public Trustee advertising that you receive “quality” for the service, the Will is prepared by an unqualified clerk or ‘consultant’ and not a legal professional. Given that a Will is one of the most important legal documents you can ever have, it should always be prepared by a legal professional who is experienced in estate planning.
The Public Trustee also promote their “full service” offering, encouraging clients to appoint the Public Trustee as the executor of the estate when drafting someone’s Will. Although many people take up the offer assuming that the fees associated with these services will be as modest as what is charged for the Will-drafting service, this is not the case. It has been well-publicised how exorbitant the fees are when the Public Trustee performs executor services or deceased administration.
Most importantly, everyone, regardless of age or health status, should have an Enduring Power of Attorney. An Enduring Power of Attorney is a document that so many people overlook. However, without appointing an attorney to look after your affairs, if something unexpected happens and you lose capacity, in most cases, the Public Trustee will take on that role.
Do not leave your health, financial and personal decisions to the Public Trustee and assume that they will protect your best interests. Sadly, this isn’t the case, and time and time again, we hear about people who are left without their basic needs met, the Public Trustee squandering away assets, and people trapped with no way out of their grasp.
When completing an Enduring Power of Attorney, think very carefully about who you will appoint to be your attorney. It must be someone that you trust implicitly. Always obtain independent legal advice about drafting an Enduring Power of Attorney and identifying what powers to grant this person in this powerful legal document.
Attwood Marshall Lawyers – helping people who have been harmed by Public Trustees
We hope that the state governments around Australia will call a proper enquiry into Public Trustees in 2023 to push for a change in their culture. The system must be restructured and issues flushed out so the system can change for the better.
Ongoing awareness is imperative to ensure people understand their rights, and anyone impacted by these issues can seek legal advice to protect themselves or a loved one.
If you have been impacted by the Public Trustee charging exorbitant fees, mismanaging someone’s financial affairs, or failing to administer a deceased estate appropriately, 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.
Attwood Marshall Lawyers have a dedicated team of estate litigation lawyers who represent hundreds of clients in Public Trustee disputes. If you need assistance, please don’t hesitate to get in touch with our team by contacting our Estate Litigation Department Manager Amanda Heather on direct line 5506 8245, emailing email@example.com or free call 1800 621 071.
We will continue to fight for people who have suffered under the control of Public Trustees.