This is the latest instalment in Crikey’s investigative series Kidnapped by the State. For previous instalments, go here.
Following the publication of Crikey’s investigative series Kidnapped by the State, more and more light is being shone on the issue of public guardians (state representatives who step in to make decisions for people once a tribunal decides they’re no longer able to do so for themselves) and public trustees (who manage people’s finances and assets).
Another two reviews have been announced into Queensland’s Office of the Public Trustee — that’s three in less than a year, following a long line of reviews and inquiries into state-sanctioned control.
Nor is Queensland the first state to make such an announcement. Inquiries are launched periodically across the country. Yet there has been little change.
Each state and territory has legislation regulating when government bodies step in to make decisions on people’s lives through a public guardian and on their finances through a public trustee. But as Crikey’s coverage revealed, state public trustees often charge astronomically high fees — higher than that which solicitors can legally charge — for services in the profit-driven system.
There are strict gag orders on the media to prevent journalists identifying those under financial administration and guardianship, and legislation preventing those under the orders from discussing their experiences in the tribunals publicly. Those familiar with the system say less formal reprisals are in place for lawyers and public servants who criticise it, preventing many from speaking out.
Reviews have much to work with
Queensland Attorney-General Shannon Fentiman has ordered two investigations — an internal review of the public trustee’s practices and policies by the new Customer Advocate Office, and an independent external review into three people mistreated by the system.
But the state already has a lot to work with: in January 2021 then-Queensland public advocate Mary Burgess released a damning report into the state public trustee, finding the office — which is not funded by the state government — had a profit-driven motive, breached its fiduciary duty to clients, and was accused of double-charging “fees for no service” and charging for routine advice not given by people with appropriate training or qualifications. The public trustee denies it has a profit-driven motive.
A year on, the public trustee has implemented only 10 of the report’s 32 recommendations; another 12 are scheduled to be completed this year. Much of the response was around fees and charges.
The public trustee said a recent Four Corners report brought attention to issues “not previously raised”, despite Crikey’s extensive coverage and Burgess’ report.
Crikey’s coverage revealed one woman was charged $100,000 in administration and legal fees over 27 months in NSW, a man was charged $1 million in management and other fees in Queensland, and another man had $2000 taken from his National Disability Insurance Scheme funds for services he says never happened.
Queensland charges some of the highest fees in the country; those on the disability support pension pay 37% of their pension income to the public trustee.
Reduced fees are not the answer
Inquiries have also been conducted in NSW, Victoria and Tasmania. (Last week the chairman of the public trustee of Tasmania, Mark Scanlon, stepped down unexpectedly.)
According to Attwood-Marshall senior associate in estate litigation Lucy McPherson, although states reduced fees, their responses have never gone far enough.
“These reviews tend to happen every five to 10 years with minor tweaks to the fee arrangements,” she said. “Some fees and charges are taken off the schedule and some are added. That’s not the change the system needs.
“It’s more than just the fee structures that are the issue here. It’s accountability. It’s the level of services that are provided, and it’s the mismanagement of funds — to name a few.”
Concerns have also been raised by anonymous sources that Queensland’s external reviewers — one of whom will be former corruption watchdog chief executive Forbes Smith — won’t shine a light on complex legislation around estates, wills and fiduciary duty.
The public trustee told Crikey the reviewers would be “experienced in high-level review of complex complaint matters and will have access to relevant services while undertaking the independent review, such as relevant experts in succession or equity law, health professionals or any other specialised knowledge experts”.
Queensland’s public trustee CEO Samay Zhouand has said he plans to stay in the role despite questions about his suitably, saying the organisation has undertaken significant reforms to increase transparency, has set up a tender and procurement process to limit conflicts of interest, and will focus on improving customer outcomes.
But Queensland solicitor Flora Wellington tells Crikey the revelations reinforced the views of many lawyers in the state that the public trustee needed an overhaul.
“The Queensland public trustee is not in an ethics-based profession,” she said. “There is no accountability, no personal liability; officers are not appropriately trained to give legal advice, and they have insufficient continuing training.”
There are no requirements for those managing deceased estates to have legal qualifications. Staff who draw up wills or enduring powers of attorney “undertake specific and comprehensive training” but are often not solicitors.
Effectively silenced
Lawyers Crikey spoke to said they believed they’d been passed over for promotions due to their public criticism of state trustees. Others said their legal firms were concerned about losing government contracts.
Burgess wasn’t reappointed after her report was published.
McPherson is based in NSW and is one of the few lawyers from a major firm speaking publicly about problems with financial administration legislation.
“It’s taboo in the industry to speak out about these matters because [the public trustee] is a government body that’s often sanctioned by the judiciary … and that’s a consistent theme throughout the system, with gag orders and legislation that prevents clients or individuals speaking about their experience,” she said.
“That theme works its way down through the legal profession and to other individuals who are involved in the system — there’s a fear about speaking out.”
But she stressed media coverage was changing. Her law firm had received an increasing number of inquiries and people seeking to change things. But the coverage was just the tip of the iceberg.
“The individuals impacted by this system are the most vulnerable in our society,” she said. “I have seen many families experience absolute devastation at the hands of these government bodies. It’s appalling that these situations occur here in Australia. Something really needs to be done about it.”
Queensland’s public trustee’s office says there are laws to protect whistleblowers throughout the review process.
“The customer advocate has advised that any individual who provides information will be afforded whistleblower protection under the Public Interest Disclosure Act 2010.
“This provides a way for people to disclose information in relation to the public sector while ensuring they are appropriately protected when they do.”
For legal reasons, please don’t identify yourself or others under guardianship or financial administration in the comments.
Is it possible to probe into the remuneration arrangements of the staff involveled in these rip offs?
As a commission salesman myself I detect all the signs of management initiated rip offs for the personal gain of the operatives as well as the management levels above them.
it all starts with the social worker (not all of them) but one that is on the job much longer than the others… That head social workers will have the power to directly hand over the property and all assets to the Public Trustee… and you will have not say whatsoever….
Spotters fees are payable to public health staff.
I think a Bill of Human Rights would help address the problem. The opaque rules/regulations governing public trustees does need an overhaul. Placing the rights of the client front and centre would be good. The self-funding model of public trustees is a problem. Ripe for rorting. Who came up with that daft idea?
No it wouldn’t. It would just add another layer of complexity, and another statutory body full of over paid ‘advocates’ who have no power and no actual interest in changing things.
Think of this. The secretive Administrative Tribunal process is removed and replaced with a normal court or not. The Public Trustee still attached to that process, kept self funded or not.
The Public Guardian office is the first contact with the person who needs assistance but is separated from the processes of the Tribunal and Public Trustee organisational reporting, funded and audited separately including a separated Public advocate who has a visitor program separated again with on the spot powers to remove a guardian should they see any activity detrimental to the persons like we see in these stories.
The chain would be broken. No one could use a blanket of secrecy to abuse, it will still happen but eventually the enabler of the abuse chain would be found out.
In most states these organisations are all under the same system, even the Premiers and Attorney Generals do not know the abuse is occurring. When they do they try and cover it up as they are responsible. They actually like to look the other way as the self funded departments are running OK and budgeting is easy.
The entire system has to have a safety fuse, it hasn’t. The gag order is a powerful tool and words like ‘The wild west’ are used to describe them.
Look at Queensland right now, the attorney general claimed in Parliament that the persons in the 4 Corners story didn’t happen on her watch.
She lied, the ABC knows she has misled Parliament and Queensland voters. Her Inquiries are a cover-up and there are more out there right now… she wants to cover it up, so do the opposition as they too were in power for others and did nothing.
ABC and Crikey cannot tell you the stories, unless they break a gag order. The Disability Royal commission has stories that it cannot act on but can produce the enormous scale of abuse and it may result in another Royal commission.
The commissioner of the DRC will obviously report on this soon and has asked the Attorney Generals to gather, start talking about it. There is a federal election in May, this systematic abuse in the guardianship “industry” report (I hope) will come out in the middle of that.
The stories are there now in their hundreds, their voice silenced and are the most abused persons in our country.
The system must have a safety fuse to stop the abuse. The person you replied to is right, in 2022 something is about to snap, one way or the other, Federal or state governments may not be able to cover up anymore.
A bill of human rights will not address those issues.
The guardians must be completely separated in every way and work for the individual.
Trust me, I am in this predicament right now.
To say they are working to any bill of human rights is a joke, the public guardians, tribunal process and the Public trustee use the same gag order to hide behind and openly abuse their clients.
They work as one machine abusing human rights.
No one in our predicament or others here or on the ABC has human rights behind a gag order, that is being abused.
It is the base human right to speak against a abuser
https://humanrights.gov.au/our-work/10-your-right-be-free-violence-and-abuse
Not for us. That must change.
A complaint to the watch dog in the state involved should help. Public servants and politicians hate having to answer to them.
I found the comments interesting as there was an underlying party political bios as to the effectiveness of management in the public sector. I have been fortunate as I have worked and experienced various working areas from multi nationals of over 100 000 employess, responsible for a 1 000 employees and over 75 contractors down to a sole trader.
I found the private sector no more efficient than the public sector – only different. There are good and bad in all areas.
In a recent conversation with a close relative who is a senior public servant who allocate contracts to the private sector, several opinions were revealed.
There are good and bad performers in both and it depends upon the management skills of those in charge.
The public service generally could do the contracted out work at a cheaper cost.
Promotional oportunities are reduced at senior levels due to loss of permanency and political influences.
Numerous Ministers lack the appropriate skills to perform the job they aspire to.
Thus outstanding employees may be comfortable at a lower level because of the lack of politics and permanency benefits.
Having said all that I am definitely of the opinion that the Public Trustee has problems. It does need overhauling but without having access or knowledge I cannot comment except to guess that they operate on a “Box” ticking process. If a box is not ticked the process stops until it is – only a guess as my family is experiencing the extended processing of what I would have thought to be a simple Will.
There are more people that have no idea what-so-ever about how much power a hospital Social Worker has when it comes to a family member and career… The Social Worker worker has the power to strip the family out. I had that particular experience. A female social worker stripped me out completely for being my mother carer while she was in a Coledale hospital,.. She gave me no explanation and Legal Access told me she did not need to tell me a single thing.I was so overwhelmed, and complexed over the process of asking for help and etc…The majority of families have no knowledge of the power a hospital social work has.. all care providers only take notice of what the social worker has said.. he/she has power to shut all family out ex-tempo and takes the property and all money matters into the hands of the Public Trustee..no ifs not buts nothing..They are judge and jury there and then on the spot…To make matter harder the Tribunal give the person no help with preparing for that event other than..read this and read that etc… Many need to have a suitable person to help prepare..It is time to put the pressure on the NSW P/T particularly the head social workers in the Hospital the pave the way to rid the family out of the patience property… please do another story … Even the Age Care Advocate can not help…
Then of course leaving the money side out of the conversation there is neglect isolation from loved ones heavily medicated and no social activities or any social inclusion the public guardian gives the power to the provider, the provider then ceases communication with family members ceases access drugs them isolate them lick them up and that way one support staff can support many and they pocket all the money my loved one is a victim of this they gag the family and threaten jail if we talk about it we turn up to tribunal where they give a sense of justice yet they do what’s best for the office of public guardian my loved one is worth 700,000 a year he has gone from being active social inclusion to sleeping all day lost abilities with speaking and lots of behaviours they need to be shut down and individuals need to be jailed I would like you Amber to do a report on this we the family don’t care about the money THEY ARE KILLING OUR VULNERABLE