AG
[2025] WASAT 57
•17 JUNE 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AG [2025] WASAT 57
MEMBER: MS F CHILD, MEMBER
HEARD: 5 MARCH, 1 APRIL AND 7 MAY 2025
DELIVERED : 7 MAY 2025
PUBLISHED : 17 JUNE 2025
FILE NO/S: GAA 832 of 2025
AG
Represented Person
Catchwords:
Guardianship and administration - Represented person with acquired brain injury and cognitive communication disorder - Whether in need of an administrator of his estate - Revoked enduring power of attorney not revived by subsequent revocation of previous administration order - Suitability for appointment as administrator - Legislative requirements for the appointment of trustee company as administrator - Wishes of the represented person as gathered from past actions - Remuneration of the administrator
Legislation:
Corporations Act 2001 (Cth)
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 44, s 44(1)(b), s 64(1), s 68, s 68(1), s 68(2), s 68(2)(a), s 68(2)(b), s 68(3), s 68(3)(a), s 68(3)(b), s 68(3)(c), s 80, s 117, s 117(2), s 117(3)
State Administrative (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
Trustees Companies (Commonwealth Regulation) Amendment Act 2011 (WA)
Trustees Companies Act 1987 (WA)
Result:
Administrator appointed
Remuneration authorised
Category: B
Representation:
Counsel:
| Represented Person | : | In Person - via video link |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
Gray v Richards [2014] HCA 40
Re E [1993] 12 SR (WA) 7246
SAL and JGL [2016] WASAT 63
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These are the reasons for decisions made on an application brought under the Guardianship and Administration Act 1990 (WA) (GA Act) in respect of AG.
AG is a 42 year old man who has a diagnosis of an acquired brain injury. At the time of the hearings before the Tribunal he had been a hospital patient for approximately 12 months.
Application and procedural history
The application seeking the appointment of a guardian and an administrator of AG's estate was filed on 14 February 2025 by a social worker from the rehabilitation hospital where AG is a patient.
The application states that AG lacks capacity to make financial and personal decisions due to an acquired brain injury following multi bilateral brain abscesses and the interventions required to treat them. The application was brought for the purposes of discharge planning from hospital and for clarity as to who has authority to make decisions about personal matters for him.
The application was first heard on 5 March 2025 and attended by AG and his housemate and long-term friend, A, by video link from hospital,[1] members of the treating team; Dr C, rehabilitation physician, Dr M, neuropsychologist, Ms F, the applicant's social worker also by video link. Ms SC a representative of Perpetual Trustees Company Limited, a trustee company (Perpetual) attended by telephone and an investigator from the Public Advocate's office (investigator) attended in person.
[1] AG had been admitted to a tertiary hospital for treatment at the time of the first hearing.
Although notice of the hearing had been given to Ms B, the mother of AG she did not attend that or subsequent hearings. Later it was explained by A that AG mistakenly believed that Ms B had made the application to the Tribunal and this had caused conflict between them.
Notice of the first hearing was not given to BG the brother of AG, but he received notice of the later hearings but did not attend. Prior to the second hearing BG filed a submission to which I will refer later in these reasons.
At the conclusion of the first hearing, I made orders appointing the Public Advocate as the limited guardian of AG. I gave brief oral reasons for that decision at the conclusion of the first hearing.
Although I was satisfied on the evidence that AG was a person for whom an administration order could be made and Perpetual was recommended for appointment as the administrator of his estate, I could not make that order at that time because of a provision in the GA Act[2] which precludes the appointment of a trustee company except in certain circumstances neither of which was clear on the material then available.
[2] GA Act, s 68(2).
The application for the appointment of administrator of AG's estate was adjourned to enable further consideration by the Public Advocate's investigator and to enable Perpetual Trustees to make any submissions regarding the requirements to be met for their appointment.
At the second hearing on 1 April 2025 AG, A and the applicant attended by video link from the rehabilitation hospital, representatives from Perpetual: SC the senior trust manager and TR, AG's financial adviser attended by telephone. The investigator attended in person
Prior to the second hearing, a submission dated 28 March 2025 from AG's brother BG, who lives in New South Wales, was received which proposed the appointment of Perpetual as administrator of AG's estate. This submission met part of the requirements for the appointment of Perpetual but other matters needed to be addressed and so the hearing was adjourned again and Perpetual was ordered to file:
(a)a consent to their appointment as administrator;[3]
(b)a minute of proposed orders including an order for remuneration; and
(c)a submission in support of an order authorising remuneration of the administrator.
[3] Required by GA Act, s 68(1).
Perpetual filed a consent to appointment as the administrator and a minute of proposed orders. In support of Perpetual's appointment the Senior Trust Manager's letter received 9 April 2025 refers to an established relationship with AG spanning over 22 years and the belief that Perpetual will be able to continue to manage his funds with very little disruption to him personally.
At the final hearing on 7 May 2025 the applicant's social worker and the investigator attended. The applicant advised that AG had again been admitted to a tertiary hospital for treatment and was very unwell but despite this, some progress had been made towards discharge planning for him.
Efforts to confirm the attendance of the representatives from Perpetual or connect them by telephone for the hearing were unsuccessful.
At the conclusion of the hearing, I made orders appointing Perpetual as the plenary administrator of the estate of AG with remuneration of the administrator authorised.
My reasons for these orders follow:
Background
The application and material submitted in this proceeding indicate that AG was admitted to hospital in April 2024 and has been a patient in various hospitals since that time for treatment of brain abscesses. He suffered a brain injury as a result of the abscesses and or in the treatment of them. He suffered a spinal cord injury in August 2024 also as a result of the brain abscesses.
In material held on the previous files of the Tribunal regarding AG, it is recorded that Perpetual, was appointed the plenary administrator of AG's estate between 2003 and 2011.
AG's father died in AG's childhood and AG had inherited a significant estate from him. The professional reports on the historical files now held by the Tribunal show that AG has a childhood diagnosis of Autism.
An administration order was originally made by the Guardianship and Administration Board on 3 March 2003 following an application by AG's grandmother, who had been his primary carer from when AG was about 4 years of age. AG's grandmother initially proposed herself (and AG's grandfather) for appointment but then sought the appointment of Perpetual due to the size of AG's estate.
When the administration order was made appointing Perpetual as the plenary administrator of AG's estate, an enduring power of attorney made by AG dated 9 June 2000 by which he had appointed Perpetual as his attorney (2000 EPA) was revoked.
Following the abolition of the Guardianship and Administration Board (Board), most of the jurisdiction of the Board was then exercised by the State Administrative Tribunal from January 2005.[4]
[4] Following the passage of the State Administrative (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), the functions of the former Board to order or to exempt the examination of accounts submitted by administrators passed to the Public Trustee by amendment of s 80 of the GA Act.
The administration order originally made by the Board was reviewed by the Tribunal. Orders made in 2004 and in 2007 authorised remuneration of the administrator.
The administration order was revoked on 26 May 2011 on AG's application for review of the orders.
Current proceeding
As noted above the present application for the appointment of an administrator and a guardian for AG was made by the hospital social worker (applicant). The applicant said she had been unable to obtain information about AG's finances other than being told by Ms B that he had significant assets. The applicant said that A had refused to provided information about AG's estate and had provided a copy of the 2000 EPA just prior to the hearing.
Legislation and principles to be observed
To appoint an administrator of his estate I must be satisfied that AG is unable by reason of a mental disability to make reasonable judgments about all or any part of his estate and that he is in need of an administrator of his estate.[5]
[5] GA Act, s 64(1).
If satisfied that AG is a person for whom an order can and should be made, I must then consider who can and should be appointed[6] and other matters such as the scope of the authority and the duration of any orders made. In this case it is also necessary to consider whether the administrator can and should be remunerated.
[6] GA Act, s 68 and s 44.
In all proceedings brought under the GA Act the Tribunal must observe principles set out in s 4 of the GA Act.
The principles provide that the primary concern of the Tribunal is the best interests of the represented person or person for whom an application is made.[7]
[7] GA Act, s 4(2).
The principles also provide that AG is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal.[8]
[8] GA Act, s 4(3).
The principles also say that orders should not be made unless they are needed; if the needs of AG can be met by less restrictive means, then orders should not be made.[9] If an order is made it should be in the least restrictive terms possible.[10] A plenary guardian should not be appointed if a limited order will meet the needs of AG.[11] The principles require that in considering any matter relating to AG, the Tribunal should seek to ascertain his wishes as expressed at the time or gathered from his previous actions.[12]
Evidence and material before the Tribunal
[9] GA Act, s 4(4).
[10] GA Act, s 4(6).
[11] GA Act, s 4(5).
[12] GA Act, s 4(7).
The material submitted with the application included:
(a)copies of the 2000 EPA (submitted by the applicant and by Perpetual);
(b)a report of Dr T, a hospital-based doctor dated 13 February 2025 which reports AG suffered a severe acquired brain injury as a consequence of bilateral multifocal brain abscesses diagnosed in April 2024 and surgical interventions to treat them. It is said that AG experiences significant communication impairment secondary to cognitive communication disorder with minimal verbal output and inconsistent yes/no responses to simple questions. Her opinion is that AG lacks capacity in both personal and financial spheres of decision-making and cannot now capably give an EPA, an enduring power of guardianship (EPG) or make an Advance Health Directive;
(c)a summary of a report of a neuropsychological assessment by Dr M conducted in January 2025 reports that on formal cognitive testing AG had 'intact performance on tasks of verbal comprehension, basic mathematics, visuo-spatial reasoning and simple reasoning tasks however AG's 'performance revealed significant impairments of processing speed, complex planning and organisation as well as memory for verbal/visual information'. …these 'impairments persisted across multiple tasks and despite accommodations for communication and processing speed difficulties'. The report goes on to say that AG's profile meets the criteria for major neurocognitive disorder secondary to ... a brain injury. Although with the caveat that a thorough assessment of cognition and decision making is limited Dr M gives the opinion that AG lacks decision making capacity for personal affairs secondary to his acquired brain injury. Cognitive impairment in executive planning, problem solving and memory is reported. The report states '[AG] demonstrated poor insight into his health/cognitive status and had inadequate understanding of his reasonable future care needs and risks'. In respect of financial decision making 'based on [AG's] cognitive challenges in memory, planning and organisation, as well as complicated mathematics and problem solving significant concern about [AG's] ability to independently manage and make reasonable judgments about his estate would warrant administration';
The report notes that specific assessment of AG's capacity to make an EPA and EPG was not explored as AG 'not only lacked insight into relevant health needs that would inform this decision, but he also denied needing support in even his complex decisionmaking. Moreover, '[AG] demonstrated significant language and fatigue limitations that restrict the discussion of complex legal documents';
(d)An Occupational Therapist's assessment reports that AG requires the assistance of two people to transfer, requires a full hoist, a tilt in space manual wheelchair and is not suitable for a powered wheelchair due to significant cognitive impairment. She states AG requires assistance with medication management due to significantly impaired recall. While at risk of pressure injuries due to reduced mobility, the report states that AG is unable to initiate pressure injury care, this being impacted by his cognitive and communication difficulties. AG is reported to be unsafe to be unsupervised in a wheelchair due to poor sitting balance and high falls risk and requires support for most activities of daily living. The recommendation is for 24/7 care through NDIS supported independent living. Due to AG's high care needs and complex equipment needs his care is said unlikely to be met in his own home with drop in supports;
(e)Other documents filed in the course of the proceeding include:
(i)Submission from the Public Advocate's investigator dated 27 February 2025 including copies of orders made for AG in 2003, 2004, 2006, 2007 and 2008 and further submission filed 28 April 2025.
(ii)Financial records submitted by Perpetual.
(iii)Submission from BG filed 28 March 2025.
(iv)A consent to be appointed by Perpetuals filed 9 April 2025.
(v)A proposal for remuneration filed 9 April 2025.
In addition to the material filed I heard from those who attended the hearings.
In the first hearing Dr M confirmed the findings of her assessments.
Dr C a rehabilitation physician also gave oral evidence in which he said that AG had been readmitted to an acute hospital for an acute episode of care, but that AG had achieved the rehabilitation likely and not made any significant neuropsychological or functional improvement in 45 months.
Dr C said that while AG may make small improvements, the time had passed for significant improvement in the future. Dr C said he agreed with Dr T's report that AG had experienced a significant cognitive impairment associated with the brain injury and that while it was challenging to formally assess his capacity (because of his communication disability) AG's lack of understanding of his own problems and circumstances raised concern about AG's capacity to make decisions. Dr C gave the example that on every ward round conducted by him that AG had asked him why his legs were not working. Dr C said he had had several conversations with AG about the spinal cord injury he had suffered in August 2024 which was associated with the brain infection but on each occasion, AG was repetitive and asked the same questions.
The applicant's social worker reported that despite requests, financial and personal information of AG was not disclosed during his admission to the rehabilitation or the previous hospitals where AG had been a patient over some months. She reported that A was spending long hours at the hospital, was not working and appeared to be reliant on AG for housing and financial support. A had told the applicant he had a private arrangement with AG about this. The applicant said that there was concern that AG may be vulnerable to financial exploitation.
The applicant said that A has taken on the role of advocate and carer in hospital, however, was not accepting of recommendations and did not follow advice from the health professionals. She said that A has been observed feeding AG incorrect fluid levels causing significant aspiration risk and telling AG incorrect information regarding his recovery and about the NDIS which has caused AG distress.
The applicant asserted that AG lacked insight into his complex medical conditions. She reported that AG was reported to express feelings of being 'cheated' by staff and that his choice and control has been taken away. She said that AG could not identify the supports he required to discharge from hospital and was not accepting of the recommendation that he requires 24/7 support. She said Ms B and A did not accept the treating teams' recommendations either.
The social worker said that AG's mother Ms B was recorded as AG's next of kin (or the nearest relative) and she had attended family meetings, but that A was making the decisions.
A said he had been AG's friend and had lived in his house for over 20 years and regarded him as the son he never had.
A did not agree with the findings of assessments of the neuropsychologist asserting that AG had a communication disability only, but could make his own decisions and manage his medications. A challenged the assessments insisting that he, A, should have been allowed to be present during the assessments to assist AG with his communication.
A said that AG could communicate with him through various ways including the use of gestures; (thumbs up, thumbs down to indicate yes or no), could write some words and through facial expressions. A said that AG needed information and wanted input into the NDIS application which A said had been submitted without AG's, his or Ms B's input.
The applicant social worker advised that the NDIS application had not been made as she said it could not be completed without a guardian being appointed.
A agreed that he had not shared information about AG's financial circumstances with the treating team as AG would not consent to this.
He said that AG had had a conference of 45 minutes with a representative from Perpetual on 11 February 2025 by video conferencing with AG from hospital. A said that he had left the hospital room to enable the representative to speak to AG privately. He said that some investment decisions had been made by AG during the meeting. A said the representative had not spoken to the doctor or the neuropsychologist.
The Perpetual representative working directly with AG was not available for the first hearing but another representative, the Senior Trust Manager attended, and financial statements and a copy of the 2000 EPA had been provided to the Tribunal prior to the hearing. In the hearing the representative said she was not aware that the 2000 EPA had been revoked and did not have a copy of the Board's order.[13] She said that AG was a private client of Perpetual and as such that Perpetual was not able to share financial information with anyone to protect AG's privacy. This was confirmed in the second hearing by TR, the financial adviser working directly with AG.
[13] Some of the records had been archived as the trustee client file had been closed and the previous financial adviser had died; ts 8, 1 April 2025.
The investigator made written and oral submissions relating to the previous orders made by the Guardianship Board and Tribunal. He reported that based on hearing notes of the investigator at the time in 2011 there was an intention by AG to execute an EPA and EPG, but the filing of the 2000 EPA suggested this had not been done. The investigator submitted that the revocation of the administration order in 2011 did not revive the revoked 2000 EPA.
At the first hearing the investigator supported the appointment of a guardian and administrator for AG. He proposed A to be appointed as guardian for medical treatment and the Public Advocate for accommodation and services because A (and Ms B) and the hospital team disagreed about discharge proposals. He proposed that Perpetual be appointed as the plenary administrator.
Dr C said the team did not support the appointment of A as guardian. While A was acknowledged as providing good support to AG during his hospital admission, the treating team had concerns that he too did not appreciate the significance or complexity of AG's health conditions. Dr C said that AG experienced significant health problems associated with both his brain and spinal cord injuries and there was a risk of significant future complications associated with those conditions. He said there may be difficult and complex health decisions to be made for AG into the future. The recommendation of the treating team was that the Public Advcoate be appointed as guardian for treatment decisionmaking and the other functions.
The investigator submitted that AG was in need of an administrator of his estate. He said that the financial statements provided by Perpetual confirmed that there was a significant estate to be managed and that Perpetuals who had a long-term involvement in AG's estate should be appointed as the administrator as the 2000 EPA was not in effect.
AG's wishes
During the first hearing AG communicated with a thumbs up thumbs down gestures to indicate his responses to questions in the hearing. Consistent with the neuropsychologist's assessment he became noticeably fatigued and closed his eyes in the later part of the first hearing and during the second hearing. He and A did not attend the final hearing.
At the first hearing AG did not agree that he needed assistance with making any decisions and did not want orders made. It was reported by the applicant that AG had previously expressed the wish to hospital staff that A assist him with health matters.
BG, AG's brother, in his letter filed prior to the second hearing, explained AG's opposition to orders being made. BG wrote that prior to his hospitalisation AG was aware and active in managing his financial affairs through annual meetings with his financial advisor at Perpetual. BG said that AG felt stigma associated with his neurodivergence of autism and Asperger's diagnoses and often felt an outsider due to his inability to connect with people. BG asserted that AG had been 'pigeonholed by agencies and departments' and had experienced a loss of autonomy leading to a loss of self-esteem resulting in frustration and anger.
BG said as he was living in New South Wales it would be difficult for him to meet the ongoing requirements and deal with the practicalities if appointed administrator of AG's estate. He fully supported the appointment of Perpetual as the administrator of AG's estate due to the long-established relationship with AG. BG said that while AG was in a period of rehabilitation that an administrator with an existing history and familiarity with him would be in AG's best interests for his mental health and well-being as he was comfortable working with them. BG said maintaining the existing arrangements would avoid unnecessary disruption and stress for AG.
In the second hearing although initially he did not respond and was described as drowsy, with assistance of A and the applicant, AG gave a thumbs up to the proposal made by BG for the appointment of Perpetual as the administrator.
Is the presumption of capacity set aside and is AG a person for whom an administration order may be made
Although AG, A and Ms B do not accept the assessments of the health professionals no other opinions have been sought or professional evidence provided to challenge the assessments or opinions of the treating team. A challenges the validity of the neuropsychological assessment as not reflecting AG's capacity as he asserts that he needed to assist AG with his communication during that assessment.
I am satisfied that the health professionals who gave evidence of their assessments have the requisite expertise to undertake those assessments and to give their opinions as to the impact of AG's impairments on his capacity to make reasonable judgments about his person and his estate. There was no other professional evidence before me. A's assertion that AG needs him to assist communication for the purposes of the capacity assessments does not appear to acknowledge the assessments conducted or the expertise of the assessors; the occupational therapist, neuropsychologist or the medical opinion which is consistent as to AG's impairment and lack of capacity to make reasonable judgments. This assertion also illustrates the dependence of AG. Where the opinions of AG and A are in conflict with the professional evidence, I prefer the professional evidence as the findings are consistent and based on the assessments conducted.
I am satisfied that the presumption of capacity is displaced and that AG is a person for whom orders may be made.
Guardianship
At the conclusion of the first hearing, I appointed the Public Advocate as AG's guardian with functions to determine where and with whom he should live, to determine services and to make treatment decisions on his behalf.
AG was at that time in a tertiary hospital and surgery was proposed for him. I accepted the applicant's submission that a guardian was needed to proceed with discharge planning for him having regard to his long hospital stay and clarity was needed as to who has authority to make treatment decisions for him.[14] Although I understood that it was AG's wish that A make decisions for him, I was not satisfied that A was suitable for appointment as AG's guardian as I was not satisfied he could perform the functions of a guardian as he did not accept AG's cognitive impairment and had not been able to work effectively with the treating team to progress discharge planning for AG. Additionally, I was satisfied that A had a potential conflict of interest which precluded his appointment as guardian[15] as he was living rent free in AG's house had no income and any accommodation decision which might need to be made for AG might potentially disrupt A's own living arrangements.
Administration
[14] Ms BG is AG's nearest relative but A was making the treatment decisions according to the applicant.
[15] Pursuant to s 44(1)(b) of the GA Act.
Based on the reports and the evidence given in the hearing I am satisfied and I find that AG has an acquired brain injury which is within the definition of mental disability in the GA Act.[16]
[16] GA Act, s 3 defines mental disability to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
When considering whether AG is a person for whom an administration order may be made pursuant to s 64 of the GA Act, I must find that AG is unable by reason of the mental disability he experiences to make reasonable judgments about his estate. This involves both subjective and objective tests (FY[2019] WASAT 118 (FY)):
52Section 64(1)(a) of the GA Act requires that a person be 'unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate'. The application of s 64 involves both subjective and objective tests. The Tribunal is required to consider whether the person in respect of whom the application is made has the ability to make 'reasonable judgments' about their estate. That constitutes a subjective test, because the person's ability falls to be assessed in relation to their actual estate. At the same time, the Tribunal must also consider whether the person has the ability to engage in the particular mental process which is required in order to make that judgment, and that test is an objective one. The Tribunal is thus required to
consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances.
53An individual's ability to make reasonable judgments in respect of their estate may depend on a variety of factors, such as their health, particularly their mental health, at any point in time. Fundamentally, however, a person's ability to make reasonable judgments about their estate requires that they have the intellectual ability necessary to make decisions of that kind. An individual's ability to make reasonable judgments in respect of their estate requires that they have, amongst other things, the ability: to understand the need for, and sources of, income available to them; to understand the value of any income received relative to items of expenditure; to identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into contracts such as those for the purchase of a phone, household items, a car, or a house); to organise their affairs so as to be able to meet debts as they fall due; and to identify and implement problem solving strategies for resolving any unexpected financial issues.
54The reference to a person's 'estate' is a reference to the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs.
Relevantly, as was held in FY the definition of 'mental disability' does not require any precise degree of mental disability. For the purposes of s 64 of the GA Act, the only relevant measure, in relation to a person with a 'mental disability', is whether the person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate at [31].
A person's estate is 'a reference to the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs'.[17]
[17] SAL and JGL [2016] WASAT 63 [22] Parry J, Dr B De Villers and Ms Quinlan.
According to the material filed by Perpetual, AG has a relatively large and complex estate including as it does real property and a portfolio of investments. Having regard to the evidence which I accept, that AG experiences significant impairments of memory, complex planning, organisation and executive function I am satisfied and I find that AG is unable by reason of his acquired brain injury and consequent cognitive impairment of making reasonable judgments in respect of his estate.
Need for an administrator
I accept the submission of the investigator that the revocation of the administration order in 2011 did not revive the 2000 EPA. I accept the professional evidence to which I have referred, that it is more likely than not that, AG now lacks capacity to make a new EPA. In the absence of an EPA, I am satisfied that there is no less restrictive alternative to the making of an administration order. I am satisfied that AG no longer has capacity to exercise oversight over his estate and make judgments about it and I accept the submission of the applicant that because of this he is vulnerable.
AG does not accept he needs any assistance with decision-making and has indicated to A that financial and personal information should not be shared with the hospital social workers who have the role to assist with his discharge planning. The senior trust manager advised that Perpetual may not share financial information of AG with anyone due to their confidentiality obligations. There are likely complex decisions ahead of AG both personal and financial as he is discharged from hospital. I am satisfied that there is a need for an administrator to be appointed to manage his complex estate, to protect AG's financial interests and to have the requisite legal authority to share relevant financial information with his appointed guardian and as necessary with other third parties to enable informed decisions to be made in AG's best interests
While I acknowledge AG's wishes and the background to his objections to the appointment of an administrator as explained by BG in his submission, I am satisfied that there is a need for an administrator of AG's estate and making such an order is in his best interests despite it being against his wishes.
Who may be appointed administrator of AG's estate
Section 68 of the GA Act sets out requirements for the appointment of an administrator of an estate;
68.Who may be appointed administrator
(1)An administrator (including a joint administrator) shall be —
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal —
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2)The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that —
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible —
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4)The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.
Although proposed for appointment as the administrator, Perpetual is a trustee company and so as indicated s 68(2) of the GA Act precluded Perpetual's appointment unless either of the conditions set out in s 68(2)(a) and (b) for that appointment were met. At the first hearing there was no individual who would otherwise be appointed as the administrator of AG's estate available to consent in writing to the appointment of Perpetual as administrator. The representative of Perpetual who attended the hearing was unaware whether AG had made a will.[18] This being the case the requirements of s 68(2) of the GA Act were not met.
[18] At the second hearing the Senior Trust manager confirmed that there was no known will of AG.
It is always open to the Tribunal to appoint the Public Trustee as the administrator of an estate. Although the definition of 'corporate trustee' in s 3 of the GA Act includes the Public Trustee, the Public Trustee is not a trustee company as defined in the Corporations Act 2001 (C'th),[19] so the requirements of s 68(2)(a) or s 68(2)(b) of the GA Act do not apply to the appointment of the Public Trustee.
[19]. The amendment of the Trustees Companies Act 1987 (WA) by the passage of the Trustees Companies (Commonwealth Regulation) Amendment Act 2011 (WA) provided that a trustee company means a licenced trustee company as defined in the Corporations Act s 601RAA. Transitional provision s 47 of the Trustees Companies (Commonwealth Regulation) Amendment Act 2011 (WA) provides that the trustee companies named in the repealed Schedule 1 of the Trustees Companies Act 1987 (WA) are licenced trustee companies.
However, the submission of the investigator was that Perpetual should be appointed as the administrator of AG's estate given the longstanding involvement of Perpetual in his affairs.
Following the adjournment, the submission filed by BG whereby he proposed the appointment of Perpetual fulfills the requirements in s 68(2)(a) of the GA Act. Perpetual have also filed a consent as required by s 68(1) of the GA Act.
The other considerations in determining the suitability of a proposed appointee pursuant to s 68(3) of the GA Act requires consideration of the compatibility of the proposed appointee with AG and with his appointed guardian,[20] the wishes of AG[21] and the ability of the proposed appointee to perform the functions of the administrator.
[20] GA Act, s 68(3)(a).
[21] GA Act, s 68(3)(b).
As advocated by the investigator and referred to in their submission; there is a long history of involvement of Perpetual in the management of AG's affairs. This has been the case since 2000 when appointed under the 2000 EPA. The subsequent appointment as the administrator of AG's estate by the former Board in 2003 and then confirmed by the Tribunal until the revocation of that order in 2011. I consider it is also relevant that AG continue to engage Perpetual as a private client since the revocation of the administration order in 2011.
BG's submission refers to the ongoing relationship with Perpetual and the maintenance of this relationship to be in AG's best interests and the best for his mental health. The Perpetual financial advisor, TR, who gave evidence at the second hearing said he has worked with AG for four years, has familiarity with AG's circumstances and I am satisfied is compatible with and is likely to be able to work compatibly with the Public Advocate's delegated guardian.[22]
[22] GA Act, s 68(3).
Although AG opposed an administration order being made, I accept the submission of the investigator that the long history of involvement supports the appointment of Perpetual as the administrator of AG's estate. I am satisfied that the appointment of Perpetual for the management of his financial affairs is consistent with the wishes of AG as gathered by his past actions and indicated by his thumbs up gesture in the second hearing.[23]
[23] GA Act, s 4(7).
The size and complexity of AG's estate warrants a professional administrator.
I am also satisfied that Perpetual as a trustee company with the relevant expertise in its staff and familiarity with the estate is able to perform the functions in the management of AG's estate.[24]
Remuneration
[24] GA Act, s 68(3)(c).
Provisions relating to the remuneration of an administrator are found in s 117 of the GA Act.
117.Remuneration
(1)The State Administrative Tribunal may fix remuneration or a rate of remuneration and order that the same be paid to an administrator out of the estate of the represented person if the Tribunal considers that, because of the size or complexity of the estate or both, remuneration should be paid to the administrator.
(2)A guardian, and except as provided in subsection (1) an administrator, shall not receive remuneration for services rendered to the represented person.
(3)Nothing in this section —
(a)prevents the Public Trustee from receiving remuneration under the Public Trustee Act 1941; or
(b)limits the operation of section 16 of this Act or section 39, 87 or 88 of the State Administrative Tribunal Act 2004.
(4)Subject to subsection (3)(a), a corporate trustee shall only be entitled to commission in respect of the capital of the estate of a represented person to the extent that the State Administrative Tribunal expressly allows.
As can be seen from s 117(2) and s 117(3) of the GA Act an administrator (other than the Public Trustee) may not receive remuneration unless the Tribunal is satisfied that the size or complexity of the estate warrants remuneration and the Tribunal authorises it. The remuneration or the rate of remuneration set by the Tribunal is the remuneration the administrator is entitled to charge. Perpetual filed a consent to appointment and a letter dated 9 April 2025 setting out an estimate of all fees to be charged based on the total portfolio value.[25]
… calculated figures for the present-day value of the total funds management fees for [AG] based on a total portfolio value of $1,518,201.
For these calculations, we have assumed that our client will have a remaining life expectancy of 28 years and that the discount factor is 6% …
[25] Submission dated 9 April 2025 folio 11.
The letter goes onto say:
The calculations follow the methodology used in Gray v Richards (2014) HCA 40[26] and assume that the capital sum is consumed over the life expectancy period[.]
[26] It is not clear to me the immediate relevance of the case cited to the present one since as I understand it that case considered whether in the assessment of damages for personal injuries compensation, the cost of funds management made necessary because the injured person was rendered incapable of managing their own affairs was compensable.
I am satisfied that AG's estate is of a size and of some complexity which supports remuneration of the administrator.[27]
Whether or not the trustee company should be appointed was not before the Court as that had been determined at first instance and the choice of the trustee company (over the NSW Trustee) was found to be 'entirely reasonable'. This finding was not challenged either in the Court of Appeal or the High Court. Gray v Richards [2014] HCA 40 at [25]: 'This appeal, therefore, has proceeded on the unchallenged assumptions that a manager other than the NSW Trustee should have been appointed to manage the appellant's damages, and the amount to be allowed for the fund management component of the appellant's damages should be by reference to the fees charged by that manager. There is, therefore, no occasion to consider the validity of either of those assumptions in this case or more generally' at [25].
A comparison is given between the annual fees to be charged to AG as a private client being $24,283 and that to be charged as a Trustee client[28] being $23,293 - a reduction of $990 in the annual fee to be charged.
[28] The terminology 'Trustee client' is understood to be where Perpetual manages the estate of a client who is a person under disability, either as the beneficiary of a court (or other trust) or a represented person who is under administration orders where Perpetual is the appointed administrator.
The letter goes on to say '[w]ork outside the establishment of the account and the ongoing management of investments and services is charged at an hourly rate which varies but does not exceed $550 per hour' Hourly charging has been described in the past as 'fundamentally problematical' and it will be necessary to consider the implications of this type of charging when reviewing the order.[29]
[29] Previous decisions of the former Board and the Tribunal, hourly charging by an administrator was seen as 'fundamentally problematical in terms of its open-ended nature' see for example Re E [1993] 12 SR (WA) 7246.
Perpetual's annual ongoing fee is a percentage of the gross value of assets, including the principal place of residence. The letter notes that 'the initial ongoing fees quoted may be revised on and in accordance with any change occurring in Perpetual's published fees'.
It is recognised that trustee companies are commercial entities and charge fees for services they provide. The practice in the Tribunal is that once the decision is made to appoint a trustee company, as an administrator, (having regard to the requirements of both s 68 and s 117) then the published rate of fees charged by that trustee company is authorised. The appointment of a trustee company as an administrator could only be on that basis.
The investigator provided a further written submission dated 28 April 2025 which provided a cost comparison between different scenarios including that which would be charged in fees by the Public Trustee if appointed administrator and AG's existing investments with Perpetual were maintained or if the funds were managed in the Public Trustee's Investment Fund. In either scenario the total fees to be charged by the Public Trustee are higher than the estimate given by Perpetual to manage AG's estate as a trustee client. The investigator notes that while the management fees charged by the Public Trustee are lower, AG's level of investments are such that the Public Trustee's fees of 2% on those investments would make the appointment of the Public Trustee a more expensive option.
The conclusion the investigator reaches was that the costings proposed to be charged by Perpetual seemed to be reasonable and he supported their appointment.
Scope and duration of orders
Given the potential range of matters to be managed in the estate of AG, I am satisfied that a plenary order is appropriate.
Although I accept the medical evidence that AG is likely to require substitute decision-making regarding his estate in the longer term, as the guardianship order was made for review after 12 months I will make the administration order for review in that same period.
For these reasons I made the following orders.
Orders
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [AG] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.
Administration
2.Perpetual Trustee Company Limited (Perpetual) of Exchange Tower, Level 29/2 The Esplanade, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.Perpetual may be remunerated for the performance of its functions as plenary administrator as per its published rates of remuneration as notified 1 July 2024, and as changed in writing from time to time.
4.The administration order is to be reviewed before 5 March 2026.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
17 JUNE 2025
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