AM and WSS
[2009] WASAT 20
•3 FEBRUARY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AM and WSS [2009] WASAT 20
MEMBER: MS M JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 7 OCTOBER 2008
DELIVERED : 3 FEBRUARY 2009
FILE NO/S: GAA 1969 of 2008
GAA 2001 of 2008
BETWEEN: AM
Applicant
AND
WSS
First RespondentKS
Second Respondent
Catchwords:
Application for revocation of EPA and appointment of administrator - EPA application withdrawn and administration application dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 64(1), s 190(1)(c)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
First Respondent : Self-represented
Second Respondent : Mr P Bogue
Solicitors:
Applicant: Self-represented
First Respondent : Self-represented
Second Respondent : Jonathan Meyer
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
An application was made by AM on 26 August 2008 for the appointment of himself as administrator for his grandmother WSS.
A further application was made by AM on 28 August 2008 pursuant to s 109(1)(c) of the Guardianship and Administration Act 1990 (WA) to revoke an existing enduring power of attorney (EPA) made by WSS in favour of his uncle KS.
Present at the hearing on 7 October 2008 were AM the applicant, WSS the proposed represented person, KS her son who is the donee of the EPA represented by Mr Bogue, SS the wife of KS, DB the accountant for WSS, DF and SK from the Office of the Public Advocate. Also present at the hearing observing were RM brother of AM and CM the partner of AM.
In the applications, AM stated that he was concerned about WSS's fiscal security due to the imminent sale of her home, being her last asset and only means of monetary support other than the pension. AM had been told by KS that the proceeds of sale were to be used to pay a $250,000 fee to the residential facility in which WSS has been residing since about July 2008 and the balance of the proceeds were to be placed in a trust managed by KS who held her EPA.
AM raised issues related to what he said were evidence of past mismanagement of WSS's finances and he claimed that KS was not therefore a suitable person to be managing the affairs of WSS.
On 30 September 2008, AM had placed a caveat over the property of WSS to prevent a sale from being finalised pending the outcome of the proceedings he had filed in this Tribunal.
The Tribunal received evidence from the medical practitioner for WSS that she was not capable of handling her financial affairs.
At the hearing, held on 7 October 2008, Mr Bogue representing KS submitted that WSS was capable of making decisions regarding her finances and hence the appointment of an administrator was not required. He further submitted that the affairs of WSS were well administered by KS pursuant to the EPA and that WSS was informed in a general sense of all decisions made and that they were made with her agreement.
At the conclusion of the hearing, the Tribunal found that WSS was a person for whom an administration order could be made, in that she is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to her estate, but that there was no need to appoint an administrator if a less restrictive alternative was available, being the EPA that she had granted to KS on 26 July 2002.
The Tribunal was satisfied that the issues raised by AM concerning his uncle's administration were not made out and the Tribunal did not revoke the EPA.
AM sought leave to withdraw his application seeking revocation of the application to revoke the EPA and asked the Tribunal to decide the issue of the appointment of him as administrator. The Tribunal granted leave for AM to withdraw his application and the application was withdrawn. The application for appointment of AM as administrator was dismissed and AM was ordered to withdraw the caveat he had placed over the property of WSS on or before close of business 10 October 2008. The parties were informed of the Tribunal's decision accordingly.
The issues raised in the applications and at the hearing
AM brought both applications as he believed that KS was not acting in the best interests of WSS and raised a number of issues in support of his application as follows:
The sale of WSS's house in Nedlands
AM claimed that the price the property was offered for sale was not appropriate. In his view this price was too low. He believed that other properties in the area had sold or were on the market for a higher price. AM did not produce any evidence of the value of the house, or any other evidence to substantiate his claim. He stated that he had looked on the internet and had concluded, as a result of what he had seen, that the house was not appropriately priced.
AM said that he felt that the sale had been arranged in haste and that was the reason why it was being offered at such a low price. He told the Tribunal that he understood from rumours that the house was to be left to him in his grandmother's will but when discussing her situation with KS, he had willingly agreed that the house should be sold in order to have WSS placed in an appropriate care facility. He believed that had things been done at a more leisurely pace, then a better price would have been achieved.
KS filed with the Tribunal a copy of a 19 page report from WH, a property consultant with Shellabears dated 2 September 2008 which set out that he considered the property to be worth between $950,000 and $995,000 and suggested an initial asking price of $1,050,000.
KS filed with the Tribunal a copy of the contract dated 17 September 2008 to sell the property at the price of $950,000 which was a counteroffer on the original offer made of $880,000. The settlement was due on 17 October 2008 but was being prevented by the caveat lodged by AM on 30 September 2008.
WSS told the Tribunal that she was very happy with the price at which the house had been sold.
The standard of care provided to WSS by KS whilst she remained living at home
AM claimed that KS was not acting in WSS's best interests in providing an appropriate level of care for her when she was living at home. AM claimed that insufficient food or insufficient funds to purchase food were available to WSS.
AM gave evidence of visiting his grandmother on a regular basis and often finding her without sufficient food.
SS told the Tribunal that from May 2007, when WSS was hospitalised, until the time that she moved into residential care in about July 2008, arrangements were made by various means of having food delivered to her. Firstly, prepared meals were delivered to her but they were not satisfactory because WSS would not eat them and they were left to rot in the fridge. SS then made arrangements for Easy Shop to deliver groceries to her weekly. WSS was in receipt of a care package which allowed for 30 minutes each weekday for preparation of a meal, which amounted to either heating soup which was readymade or preparing a sandwich, they would not otherwise do general food preparation.
SS admitted that there were glitches in the system that she tried to impose, because she and KS lived three and a half hours drive from where WSS was then residing. It was difficult to ensure that it worked smoothly and that at all times she was properly provided with sufficient supply of food.
AM told the Tribunal that he lived one and a half hours from WSS and visited weekly or fortnightly. He was often surprised at how little food she had available to her and so commenced purchasing a list of food requested by WSS after cashing a cheque to provide funds. He was initially cashing a cheque for $800 monthly, but on some occasions more often. AM told the Tribunal that after cashing a cheque for $800, he purchased food that WSS had asked him to buy, the cost of which varied but usually was around $350. He gave the change to WSS when he delivered the food to her. It was a puzzle to all at the hearing as to what happened to the change from the food purchases. The issue had been discussed between AM and KS on occasions as the constant withdrawals were drawn to the attention of KS via the bank statements. No allegations were made, and indeed were specifically not pursued by KS that AM had taken or used any of his grandmother's funds for his own purposes.
AM's allegations concerning lack of provisions were confirmed by a letter to the Tribunal received from Mercy Care that stated on several occasions from March to May 2008 there had been little or no food at the residence from which the carers could prepare a meal for WSS.
Mr Bogue submitted that although arrangements had been made by KS and SS to provide WSS with sufficient food, it did not work perfectly. He said:
In my submission I mean, these things just never work perfectly. You know, things go wrong occasionally and S and K are doing the best they could from Margaret River. Big deal. [T:33, 07.10.08]
AM appropriately responded, 'Gran wasn't eating. That's the big deal'. AM went on to say:
I am not saying they're bad people, but the reason I brought this up was because reading about what an enduring power of attorney is responsible for. It's for the person's wellbeing, and food I think is pretty way up there. I mean, I thought it was a big deal.
Allegation that after KS became donee of the EPA, he persuaded WSS to sign over to him shares in the family winery worth $80,000. This transaction had caused a reduction in the age pension. AM believed that this transfer was to negate a later gift in her will by WSS to KS's son A.
AM told the Tribunal that WSS had complained to him over the years that she had been presented with a paper to sign, and had not been told what the document was for. He was also told by WSS that the result of this transfer left her pension reduced due to the gifting provisions of Centrelink.
Mr Bogue on behalf of KS told the Tribunal that there had been no transfer of shares by WSS since the EPA came into effect. This was confirmed by the accountant, DB. However, it was assumed by Mr Bogue that the allegation referred to the transfer of one A class share in the proprietary limited company that runs the family farming business which includes a vineyard. This transfer was effected on 5 February 2002, some months before the EPA was granted. The consideration expressed on the transfer was $20,349.
DB told the Tribunal that the purpose of this transfer was for commercial reasons; that it was not appropriate for WSS to be part of the running of the business which did not own the land on which it operated. DB told the Tribunal that the transfer of this share did not affect the pension of WSS as it was an asset that remained an asset, whether it be by way of ownership of the share or by the cash received from the transfer.
However, DB, who had been looking after the affairs of WSS for about 20 years, also referred to transfers in the early 1990's of shares listed on the stock exchange, previously owned by WSS, that were transferred to a trust which is still controlled by WSS. He further claimed that this transfer would not have affected her pension, as the asset remained either as the shares or as a loan or gift to the trust.
KS, upon further questioning by the Tribunal, confirmed that it had been his belief that the one A class share, which equated to a onesixth share in the company, would have ultimately ended up in his son A's hands.
The wisdom of the sale of the house to effect the bond on the residential care facility.
AM was concerned that the decision to sell the house, although he initially agreed to it, was not the best way in which to facilitate entry by his grandmother to residential care. He noted from a brochure he had received from the Department of Health and Ageing that WSS could have rented out her home to pay some or all of the bond by periodic payments. He told the Tribunal if this had happened, the rental income could be exempt from the pension assets and income tests. He was concerned that this option had not been explored.
KS told the Tribunal that as the bond had not yet been paid, the cost was between $1,400 and $1,600 per month and that could not be raised by the rental of the house.
DB the accountant told the Tribunal that rental from the house would not contribute all the money needed to cover the cost of funding the $220,000 loan. There would be additional tax implications as time goes on, and WSS could lose her personal residence status. In his professional opinion, it was a sound decision that had been made.
AM had been told by KS in the past that WSS had no assets other than the house and her income was dependent upon the pension. However, this was not the case. WSS controls a trust which owns shares which were said by Mr B to be worth $140,000 as at the date of the hearing and had a further deposit of $40,000 in a bank account.
Relevant legislative provisions
Section 64(1) of the Guardianship and Administration Act 1990 (WA) (GA Act):
Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made …
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
The principles that the Tribunal is to follow are stated in s 4 of the GA Act
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(2)(a)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b)Every person shall be presumed to be capable of
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
…
Reasons for Decision:
Capacity
The Tribunal received a report dated 9 September 2008 from Dr H, the general practitioner for WSS who had known her for three months in the setting of her residential facility. Dr H stated that WSS has an impairment of her cognitive function due to early dementia and some shortterm memory loss. Upon a mini mental state examination (MMSE), WSS scored 16/30. Dr H continued that WSS copes very well in the hostel at low level of care and is capable of making reasonable decisions now in relation to her personal health care, but not so in relation to her living situation or her financial affairs.
The Tribunal received a primary carer guide dated 4 September 2008 completed by TM, the manager of the residential facility in which it states that WSS had a diagnosis on admission of dementia, shortterm memory loss, chronic lower back pain and faecal incontinence. TM commented on the mental state of WSS as being often confused and forgetful, requiring directional assistance and she is able to follow stepbystep instructions. Her conversation can be spontaneous, although sometimes repetitive and she enjoys socialising. TM assessed that WSS in her opinion would not be capable of managing her affairs and recommended that someone be appointed to take on the role of guardian or administrator.
The Tribunal found based upon the evidence of both the general practitioner presently treating WSS and the manager of the care facility that WSS is not now capable of managing her own finances. Whilst it may be the case that KS does inform her of actions he may take, WSS's evidence to the Tribunal was that she trusted her son implicitly and accepted his advice. The Tribunal finds that any input from WSS in financial decisionmaking in her circumstances is no more than acquiescence.
Need
However, whilst WSS is a person for whom an administration order could be made, there is no need for such an order to be made given that there is an EPA in existence. Had AM demonstrated his belief that KS, the donee of the EPA was not acting in the best interests of WSS, then the EPA would have been revoked and consideration be given to the appointment of an administrator to carry out that role.
In considering each of the issues raised by AM, the Tribunal does not find that KS has acted improperly in the role of attorney.
With regard to the sale of the house, AM's complaint that action was taken too hastily and the property sold at too low a price is dismissed. KS obtained prior to the sale, an appraisal from a reputable real estate firm familiar with the location and sold the property at a price within the range suggested. It is unlikely that waiting any longer would have been of assistance in what is now a falling market for real estate given the current global financial crisis.
AM told the Tribunal, and it was not disputed, that he believed he was to inherit the house and, notwithstanding that, had readily agreed to the sale in order to have his grandmother appropriately accommodated as at the time he believed that was the only option available.
The Tribunal received a copy of the will of WSS and indeed AM was to have received a share of the house as part of his inheritance. That is not something that this Tribunal can take into account, but it is something that may at some stage in the future be the subject of further litigation.
AM put to the Tribunal that there were other options that should be considered prior to the sale of the house to facilitate the future accommodation needs of WSS. DB, the accountant for WSS told the Tribunal that he had some experience in the area of funding of residential facilities for the aged and in his professional opinion, given the financial situation of WSS, the appropriate decision had been made.
It appears that KS has not fully informed AM at all times about the financial position of WSS. However, as the donee of the EPA, he is under no obligation to inform others of the financial affairs that he is administering due to privacy considerations.
With regard to the allegation that WSS has not been satisfactorily provided for by KS whilst she was living in her own home, this was apparent from the evidence of AM, SS and Mercy Care. The best that can be said about this is the confusion that must have resulted from funds being constantly withdrawn from the bank account, assuming that they were spent on provisions for WSS when much of those funds appear to have vanished. AM told the Tribunal that he thought that KS was using those funds; KS and SS were very careful not to say that they thought AM was using those funds and were deliberate through their counsel to say that they made no such allegation.
It is unfortunate that there was no family member living in close proximity to WSS for an extended period of time between a period of hospitalisation in May 2007 when it was realised WSS was no longer able to fully care for herself and finally some 14 months later, being placed in a suitable residential facility close to KS. However, while SS acknowledged that this did not work smoothly, several different approaches were tried to ensure that WSS did receive sufficient food and assistance, including initially prepared meals being delivered and then later a shopping delivery service was implemented. In addition, this was supplemented by SS coming to Perth periodically to purchase supplies. KS and WS were also aware of AM visiting WSS on a regular basis and purchasing supplies, given that cheques were being periodically cashed.
It was unfortunate that AM did not have access to the information provided to the Tribunal until the morning of the hearing, and may not have been fully prepared to argue his case. He did not himself bring any independent evidence to the Tribunal. It appears that the letter from Mercy Care was elicited by the Tribunal as part of the enquiry made to carers seeking information about a proposed represented person. It appears that AM may have been misinformed that once he raised issues, that the Tribunal would investigate those claims and find its own evidence. The Tribunal, as a matter of course, seeks information concerning the capacity of a proposed represented person for informed decisionmaking, but does not extend that enquiry to cover financial aspects that AM expected, such as an enquiry to Centrelink and information concerning market values.
KS, through his counsel acknowledged that he accepted that AM had brought the proceedings to the Tribunal for altruistic reasons, and not for any other.
The Tribunal acknowledges that the outcome of the application will be disappointing to the applicant, in that not only is his application dismissed, but that the issues raised have caused concern to his grandmother and have alienated her affections. The Tribunal acknowledges that AM's reasons for bringing the applications were with the best interests of WSS in mind.
Orders
Application GAA 1969 of 2008:
1.The application be dismissed.
2.On or before the close of business 10 October 2008, the applicant withdraw the caveat he had previously placed on the property at 10 Williams Road, Nedlands, Western Australia, more particularly known as Certificate of Title Volume 1048 Folio 26.
Application GAA 2001 of 2008:
1.The applicant has leave to withdraw the application; and
2.The application is withdrawn.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M JORDAN, SENIOR SESSIONAL MEMBER
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