AP - [2007] WASAT 230

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AP [2007] WASAT 230

MEMBER: MS D DEAN (MEMBER)
MR S JONGENELIS (SENIOR SESSIONAL MEMBER)
DR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)

HEARD: 16 APRIL 2007
14 JUNE 2007

DELIVERED : 4 SEPTEMBER 2007

FILE NO/S: GAA 185 of 2007

BETWEEN: AP
Represented Person
LD
Applicant

Catchwords:

Application for review of an administration order appointing daughter plenary administrator - Leave to apply for review required - Leave granted - Breakdown in communication between administrator and other family members - Should legal fees incurred by the administrator be paid out of represented person's estate - Need for independent appointment - Public Trustee appointed plenary administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 64, s 70, s 86(1), s 87(5), s 90

Result:

The Public Trustee is appointed plenary administrator with a direction that he investigates the appropriateness of legal fees totalling $4204.06 being paid out of the estate of the represented person

Category: B

Representation:

Counsel:

Represented Person : Selfrepresented
Applicant: Selfrepresented

Solicitors:

Represented Person : Self-represented
Applicant: Self-represented

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An application for review of an administration order appointing DP, the daughter of AP, the represented person, was made by the other daughter, LD, because of the total breakdown in communication between the administrator and other family members.
Without consultation with family members, the administrator had proceeded to dispose of the represented person's household goods, some of which had subsequently been removed from the home of the represented person by the applicant and her husband. This precipitated legal action by the administrator to recover the goods. The cost of this legal action and legal representation of the administrator at the review hearing was paid out of the estate of the represented person.
Given the level of conflict between the administrator and family members, the Tribunal found that it was not in the represented person's best interests to have the daughter continue in the role of administrator and appointed the Public Trustee plenary administrator with a direction to investigate the appropriateness of payment of the legal fees incurred by the administrator out of the estate of the represented person. The order was to be reviewed in six months.

Background

The history of this matter is that LD, a daughter of AP, the represented person, made an application in August 2006 for the Tribunal to revoke or vary the terms of enduring powers of attorney (EPA's) executed by the represented person in 2003, 2004 and 2006.
In September 2006, LD made an application for an administration order for the represented person and DP, the eldest daughter, made applications for guardianship and administration.
All the applications were heard on 6 October 2006. The Tribunal revoked the EPA's executed in 2003, 2004 and 2006 and appointed DP plenary administrator with a direction to provide her sister LD with a copy of the accounts filed annually with the Public Trustee.
On 30 January 2007, LD applied to the Tribunal for review of the administration order made on 6 October 2006 on the basis that there had been a "total breakdown in communication" between the administrator "and all other members of the family".
The matter was listed for hearing and part heard on 16 April 2007. The administrator did not attend this hearing but was represented by legal counsel. The hearing was adjourned to 14 June 2007 to allow for attendance of the administrator.

Evidence available to the Tribunal prior to the hearing

•The written application and various submissions from LD, the applicant, outlining the events in relation to the removal of goods from the represented person's home and including copies of correspondence from Jackson McDonald, solicitors employed by the administrator to secure the return of the removed goods.
•Submission from the sister of the represented person outlining concerns about the breakdown in communication between the administrator and the applicant in this matter.
•Submissions by the administrator outlining the events surrounding the removal of the goods from the represented person's home and describing the breakdown in communication between her and the applicant.
•Copies of invoices from Jackson McDonald for fees in relation to the Tribunal hearing and the pursuit of the return of the goods removed from the represented person's home.
•Copy of the Estate Information Form completed and provided to the Public Trustee by the administrator

Hearings

The Tribunal was constituted of members D Dean, S Jongenelis and D Stepniak on 16 April 2007, and D Dean, E Liepoldt and D Stepniak on 14 June 2007.
The hearing on 16 April 2007 was attended by Mr B, the solicitor representing the administrator and her husband. Other attendees were LD, the applicant, her husband MD, and NW and IW, sisters of the represented person. The second hearing on 14 June 2007 was attended by the administrator and her husband as well as the applicant, her husband and the two sisters of the represented person. There was no legal representative at the second hearing.
The Tribunal heard from the parties about the conflict that had arisen since the initial hearing at which DP had been appointed administrator. Evidence was provided that since her appointment, the administrator had taken over the property and possessions of the represented person, and had arranged for disposal and/or storage of these without consultation with the applicant or any other family members.
The applicant informed the Tribunal that, on finding that the represented person's possessions were being disposed of and after unsuccessful attempts to contact the administrator by telephone, she and her husband removed property from the represented person's former home for storage at their own home until it could be appropriately disposed of. This action resulted in the administrator making a report to the police alleging "burglary" and employing a solicitor to write to the applicant threatening her with legal action if the "stolen" property was not returned to the administrator.
There was some discussion in both hearings about whether or not this property had any monetary value. The administrator had informed the Public Trustee that the goods were very old and of "no value". Counsel representing the administrator in the first hearing argued that value is not necessarily relevant; rather, being the property of the represented person, it is within the rights of the administrator to demand the return of the property for her to dispose of or manage as she thinks fit.
Counsel informed the hearing that the administrator intended making a list of any items of value and offering these for sale amongst the family. Any items not purchased by family would be disposed of by the administrator. Counsel said that the only items that had been disposed of prior to the removal by the applicant and her husband were old, damaged and of no real, or sentimental, value. This information was confirmed by the administrator and her husband at the second hearing who referred to the items they had disposed of as "rubbish" or "junk" and of no value.
Counsel, when asked in the first hearing, was unable to give a satisfactory answer to the Tribunal's question as to why there had been no consultation with other family members when the administrator commenced disposal of the represented person's possessions. The administrator, in response to this question in the second hearing, said that she had consulted with the Public Trustee who had advised that she had the authority to make decisions about, and to dispose of, the represented person's property as she saw fit. She further stated that if she had known she needed to consult with others when making these types of decisions she would not have taken on the role of administrator. Later, when asked if she wished to continue in the role of administrator, she said she did but would not change her mode of management if reappointed.
The applicant said she would be prepared to take on the role of administrator and would, if appointed, act in an open and inclusive manner keeping all family members, including the administrator, involved and informed about decisions she was making on behalf of the represented person. She acknowledged that, given the breakdown in communication, communication would need to be by way of telephone messages or letters.
The applicant reported that there had been no direct contact between her and the administrator since the original hearing at which the order was made appointing the administrator. She said that on several occasions she had left messages on the administrator's voice mail but had received no response to these. The administrator said she had not received the messages until her return from holiday. She said that when she learned of the removal of the represented person's property she was advised by the Public Trustee that she could employ the services of a solicitor to help recover the property. The Public Trustee advised that, provided the cost of the solicitor did not exceed the value of the missing goods, the solicitor could be paid out of the represented person's estate. The solicitor's account for this service was $1256 and this has been paid out of the represented person's estate.
The administrator advised the Tribunal that the account for the solicitor representing her at the hearing on 16 April 2007, which she did not attend, had also been paid out of the represented person's estate. This account was $2948.01. When questioned as to whether she had consulted with the Public Trustee about payment of this account, the administrator said she had not but she intended recovering the money from the applicant and, presumably, reimbursing the estate of the represented person accordingly.
The husband of the administrator advised the Tribunal that there has been rivalry between the two daughters all their lives with the mother appearing to favour the administrator to the detriment of the relationship with her other daughter, the applicant. This was confirmed by the sister of the represented person.
The applicant informed the Tribunal on several occasions that her mother treated everyone equally and would be distressed if she realised the extent of the current family disharmony.
The administrator advised the Tribunal that she had paid $1000 into a trust account held by the nursing home for the use of family when they visited and took the represented person on outings. The administrator stated that family had not bothered to access this money. The applicant and sisters of the represented person expressed surprise to learn about the $1000 which they had not been notified about.

Legislation

The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act ).
These principles are:
"(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.
(d)A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."

Section 70 provides:
"70. Administrator to act in best interests of represented person
(1)An administrator shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible -
...
(g)in such a way as to maintain any supportive relationships the represented person has; ..."

On receipt of an application for review under s 86 of the GA Act , except in the case of the Public Advocate, a represented person or a guardian or an administrator, the Tribunal must give leave under s 87 to an applicant to apply for review. In this case, LD is a person to whom leave must be granted.
Section 87(5)(a) and (b) provides:
"(5)The State Administrative Tribunal may -
(a)refuse the request; or
(b)if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review."
The Tribunal was satisfied, in accordance with s 87(5)(b), that LD's concerns about decisions being made by the administrator were sufficient reason for a review to be held and therefore granted leave to her to apply for the review.
Section 90 outlines the powers of the Tribunal to confirm, amend or revoke an order and to appoint a new or additional guardian or administrator.
"90. Powers of State Administrative Tribunal on review
(1)Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order -
(a)amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;
(b)revoke the order, or revoke the order and substitute another order for it; or
(c)without limiting paragraphs (a) and (b) -
(i)revoke the appointment of any guardian or administrator;
(ii)appoint a new or additional guardian or administrator;
(iii)appoint an alternate guardian.
(2)A review under this Part is in the State Administrative Tribunal's original jurisdiction."

Findings and reasons

Capacity

The issue of capacity was dealt with in the initial hearing when the order was made appointing the administrator. All parties agreed that the represented person continues to be a person for whom the Tribunal, in accordance with s 64 of the GA Act can make an order.
No further capacity evidence was provided, or considered necessary, for the current application.

Need

The need for an order was established in the initial hearing where evidence was provided that the represented person had relied, for some time, on others to manage her bank accounts and pay her day‑to‑day expenses, including her accommodation costs. No evidence was presented to suggest that this has, or is likely to change.

Wishes of the represented person

Where possible, the Tribunal takes into account the wishes of the person when making a determination. In this case, the Tribunal did not have the opportunity to hear from the represented person herself what her wishes might be, but evidence was provided by the husband of the administrator, and to some extent this was confirmed by the sisters of the represented person, that she has always favoured the administrator over her other daughter, the applicant. This is reflected, to some extent, in two of the enduring powers of attorney executed by the represented person over a three year period in favour of the administrator.
Given the history of difficulties experienced by the administrator during the period of her appointment, the Tribunal takes the view, that, even if it was the wish of the represented person that the administrator continue in the role, it would not be her wish that the appointment continue if it contributed to the breakdown in family relationships. The Tribunal accepts the evidence of the applicant that the represented person would be distressed if she realised the extent of the communication breakdown in the family and the impact the appointment of the administrator had had on this.

Best interests

The overarching principle guiding the Tribunal in its decision‑making is the best interests of the represented person. Further, s 70 of the GA Act provides that the administrator must act in the best interests of the represented person.
In this case, there was evidence provided by the various parties that some decisions, including her refusal to communicate directly with family members, made by the administrator, had not been made in the best interests of the represented person.
The Tribunal does not accept that decisions made by the administrator to dispose of the represented person's possessions without consultation with other family members was in the best interests of the represented person. The Tribunal agrees with the applicant that decisions such as those are best made, where possible, in consultation with close family members who are likely to have information about the represented person's wishes in such matters.
The Tribunal found the statement by the administrator that, if reappointed, she would continue to make decisions without discussion and/or consultation with other family members, of concern and indicative of her lack of insight into the inappropriateness of the need for the employment of legal services to recover the represented person's goods when direct communication with the parties should have been able to achieve a satisfactory outcome.
Similarly, the Tribunal is of the view that, if not for the breakdown in communication between the parties, legal representation of the administrator at the hearing on 16 April 2007, and the employment of a solicitor to facilitate the return of the represented person's property, may not have been necessary and there might be a case for these not to be seen as legitimate expenses to the estate of the represented person.
No evidence was provided by the administrator that there has been, or is likely to be, any attempt to reconcile with other family members or to communicate directly with them. It is the opinion of the Tribunal that if the administrator is reappointed, it is likely that the total breakdown in communication and the subsequent need for independent parties to be involved, may result in further depletion of the represented person's funds.
The Tribunal considered the proposal by the applicant that she take on the role of administrator but found that her appointment would be likely to put further pressure on already fragile family relationships and this would not be in the best interests of the represented person.

The Tribunal found that it is in the best interests of the represented person that an independent administrator be appointed. It is in the represented person's best interests that family relationships be preserved and maintained. In this family, decisions in relation to the represented person's estate have caused a rift between parties and a major breakdown in communication. It is hoped that with the financial decision‑maker being an independent authority outside the family, rifts within the family may heal and communication between family members may be reactivated.

Orders

1.The application for leave to apply for a review is granted.
2.The order appointing DP administrator of the estate of the represented person is revoked.
3.The Public Trustee is appointed plenary administrator with a direction to investigate the appropriateness of the payment of the legal fees totalling $4204.06 out of the estate of the represented person and whether these fees should be recovered from DP.
4.The order is to be reviewed by 14 December 2007.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER