AS
[2018] WASAT 1
•11 JANUARY 2018
AS [2018] WASAT 1
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2018] WASAT 1 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2183/2017 | 17 OCTOBER 2017 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 11/01/18 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Public Trustee appointed the administrator of represented person's estate | ||
| B | |||
| PDF Version |
| Parties: | AS |
Catchwords: | Guardianship and Administration Administration Needs of the person Need of an administrator of her estate Less restrictive alternative Legal owner of property Claim of equitable interest in property Best interests Conflict of interest Plenary order in the best interests of the represented person Public Trustee appointed administrator of the represented person's estate |
Legislation: | Guardianship and Administration Regulations 2005, reg 4 The Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(4), s 4(6), s 4(7), s 64(1)(a), s 64(1)(b), s 68, s 68(1)(c), s 68(1)(d), s 68(3), s 68(5), s 70, s 80, s 80(1), s 80(3), s 80(6a), s 84, s 86, s 90 |
Case References: | Charlton v Baber [2003] NSWSC 745 MM [2001] WAGAB 2 Public Trustee v Blackwood (1998) 8 Tas R 256 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 SMPM (also known as SMYM or SMY) [2004] WAGAB 3 |
Summary | AS is 86 years of age. She has dementia and resides in a nursing home.,AS has a son, SS.,SS had initially appointed the plenary administrator of AS's estate in September 2015.,AS was the legal owner of a property in which she and SS had lived until her move to the nursing home.,SS claimed an equitable interest in the property. He continued to reside in the property.,SS contended that he could remain as administrator of AS's estate if the property did not form part of the administration order. The property would still be protected because no one would have the authority to deal with it.,The Tribunal decided that it was in AS's best interests that her estate continue to be managed under a plenary administration order and for that reason SS could not remain as her administrator.,The Public Trustee was appointed the plenary administrator of the estate of AS and would need to deal with the claimed equitable interest of SS. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : AS [2018] WASAT 1 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 17 OCTOBER 2017 DELIVERED : 11 JANUARY 2018 FILE NO/S : GAA 2183 of 2017 BETWEEN : AS
- Represented Person
Catchwords:
Guardianship and Administration - Administration - Needs of the person - Need of an administrator of her estate - Less restrictive alternative - Legal owner of property - Claim of equitable interest in property - Best interests - Conflict of interest - Plenary order in the best interests of the represented person - Public Trustee appointed administrator of the represented person's estate
Legislation:
Guardianship and Administration Regulations 2005, reg 4
The Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(4), s 4(6), s 4(7), s 64(1)(a), s 64(1)(b), s 68, s 68(1)(c), s 68(1)(d), s 68(3), s 68(5), s 70, s 80, s 80(1), s 80(3), s 80(6a), s 84, s 86, s 90
Result:
Public Trustee appointed the administrator of represented person's estate
Summary of Tribunal's decision:
AS is 86 years of age. She has dementia and resides in a nursing home.
AS has a son, SS.
SS had initially appointed the plenary administrator of AS's estate in September 2015.
AS was the legal owner of a property in which she and SS had lived until her move to the nursing home.
SS claimed an equitable interest in the property. He continued to reside in the property.
SS contended that he could remain as administrator of AS's estate if the property did not form part of the administration order. The property would still be protected because no one would have the authority to deal with it.
The Tribunal decided that it was in AS's best interests that her estate continue to be managed under a plenary administration order and for that reason SS could not remain as her administrator.
The Public Trustee was appointed the plenary administrator of the estate of AS and would need to deal with the claimed equitable interest of SS.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Charlton v Baber [2003] NSWSC 745
MM [2001] WAGAB 2
Public Trustee v Blackwood (1998) 8 Tas R 256
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
SMPM (also known as SMYM or SMY) [2004] WAGAB 3
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1 AS is 86 years of age. She has dementia and resides in a nursing home. She has lived in the nursing home from about October 2015.
2 AS has a son, SS.
3 On 11 September 2015, SS was appointed the plenary administrator of AS's estate pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act) (first administration order).
4 AS is the sole registered owner of a property in which SS resides (property). The property is AS's principal asset. The property is encumbered by way of a mortgage which is in the joint names of AS and SS (joint mortgage).
5 At the hearing on 11 September 2015, SS claimed that he has an equitable interest (claimed interest) in the property (T: 14 15; 11.09.15).
6 The order made on 11 September 2015 does not reflect the claimed interest in the property.
7 In January 2017, the Public Trustee sought review of the first administration order pursuant to s 86 of the GA Act in light of the knowledge of SS's claimed interest in the property. At the time, the Public Trustee was not aware that SS had given evidence to that effect on 11 September 2015.
8 In February 2017, the Residential Care Manager of the nursing home in which AS resides also sought review of the first administration order because it was alleged that SS, as administrator of AS's estate, had not completed and filed with Centrelink a statement of her assets required to establish the quantum of her nursing home fees (Centrelink statement). As a consequence, AS was being charged nursing home fees at a rate much higher than she likely was liable and she had incurred a debt to the nursing home of over $35,000.
9 At some point, SS had submitted to Centrelink details of his claimed interest in the property and was waiting for a determination from Centrelink as to how SS's nursing home fees would ultimately be set (Centrelink determination).
10 I heard the review applications on 24 April 2017. I reappointed SS as the administrator of AS's estate but removed his authority to further encumber or sell or grant an option to sell the property (second administration order). I allowed SS to continue to live in the property free of rent. I directed that within 21 days SS file with the Public Trustee account number 1 pursuant to reg 4(1) of the Guardianship and Administration Regulations 2005 (GA Regulations). I further directed that SS file with the Tribunal and serve on the Public Trustee the Centrelink determination once received.
11 I set the review of the second administration order for six months.
12 The current proceedings concern the review of the second administration order pursuant to s 84 of the GA Act.
The relevant legislation
13 The primary concern of the Tribunal is the best interests of AS: s 4(2) of the GA Act.
14 In considering any matter the Tribunal shall, as far as possible, seek to ascertain the views and wishes of AS as expressed, in whatever manner, at the time, or gathered from AS's previous actions: s 4(7) of the GA Act.
15 Under s 64(1)(a) of the GA Act the Tribunal must find that by reason of a mental disability AS is unable to make reasonable judgments in respect of matters relating to all or any part of her estate before it can consider whether she is in need of an administrator pursuant to s 64(1)(b) of the GA Act.
16 Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
17 If the needs of AS can be met in a manner less restrictive of her freedom of decision and action then an administration order should not be made: s 4(4) of the GA Act. If a limited order is made, the order must place the least restriction necessary on AS: s 4(6) of the GA Act.
18 Under s 68 of the GA Act, an administrator can be an individual over the age of 18 years or a corporate trustee. The Public Trustee is considered a corporate trustee: s 3 of the GA Act.
19 The proposed appointee must consent to act as administrator and in the opinion of the Tribunal act in AS's best interests and be otherwise suitable to act as the administrator of AS's estate: s 68(1)(c) and s 68(1)(d) of the GA Act.
20 For the purpose of deciding whether the proposed appointee is suitable to act, the Tribunal must take into account as far as is possible the compatibility of the proposed appointee with AS; her wishes and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator: s 68(3) of the GA Act.
21 Except where appointed to act jointly with another person or other persons, the Tribunal shall not appoint the Public Advocate as AS's administrator unless there is no other individual or corporate trustee who is suitable and willing to act: s 68(5) of the GA Act.
22 Under s 80(1) of the GA Act an administrator must submit accounts to the Public Trustee unless exempted from doing so. The Public Trustee must examine the accounts and may allow them; disallow any amount paid; determine that any amount or asset has been omitted or that any loss has occurred: s 80(3) of the GA Act. A person aggrieved by a decision of the Public Trustee under s 80(3) may apply to the Tribunal for a review of the decision: s 80(6a) of the GA Act.
23 Upon review of the administration order, the Tribunal may, as it considers in the best interests of AS, confirm the order or amend the order, revoke the order or revoke the order and substitute another order for it. The Tribunal may revoke the appointment of any administrator or appoint a new or additional administrator: s 90 of the GA Act.
Need for an administrator
24 It is common ground that AS remains a person for whom an administration order can be made. She has dementia which is a progressive neurological condition. A report of August 2017 from the Residential Care Manager of the nursing home confirms that AS is incapable of managing any aspect of her estate.
25 There is no evidence before me to challenge the findings made by the Tribunal on 11 September 2015 and 24 April 2017.
26 I therefore declare that AS is unable by reason of her dementia (mental disability) to make reasonable judgments in respect of matters relating to all of her estate. I will discuss the question of the need for an administrator later in these reasons because the extent of the need is the subject of dispute.
The estate of AS and account number 1
27 SS filed account number 1 with the Public Trustee on 16 May 2017. The account covers the period 11 September 2015 to 10 September 2016.
28 In a report dated 16 October 2017 filed with the Tribunal, the Public Trustee states as follows in respect to account number 1:
• SS states the value of the property as at September 2016 was $700,000 but that the value was subject to 'Legal interest excluding equitable interest'.
• In a Statutory Declaration to Centrelink dated 9 May 2016 which is before the Tribunal (Centrelink Statutory Declaration), SS valued his claimed interest in the property as $495,000 the sum of which included mortgage repayments for 16 years.
• It appears as if the administrator has serviced the joint mortgage from his own funds.
• SS reports AS's then liabilities as a debt to the nursing home $38,776.03; the balance of the mortgage loan $72,624.59 and property rates payable $3,682.86.
• SS and AS have a joint bank account (joint account) into which AS's age pension was credited until 13 July 2016 when the administrator redirected the pension to the nursing home.
• AS's only income is the age pension and the only other assets other than the property shown in account number 1 are furniture, household and personal effects then valued at $8,000.
29 The Public Trustee has received a statement of account from the nursing home which reports that the debt to the nursing home had been reduced to $4,545.35 by 1 July 2017.
30 In oral evidence, a representative of the Public Trustee states that bank and mortgage statements show that mortgage repayments had been made on a regular basis from the joint account and that after the redirection of AS's pension it appears that funds credited to the joint account were derived from the administrator's personal superannuation. At the end of the reporting period the joint account had a credit balance of approximately $306.
31 On 13 October 2017, the administrator filed with the Tribunal a Centrelink letter of the same date advising AS that the value of her assets for the purposes of calculating nursing home fees would be $10,290 which excluded the value of the property.
32 A representative of the nursing home in her oral evidence states that until Centrelink notifies the nursing home directly of what fees are to be levied and what past fees can be rebated (and refunded if paid), AS will continue to be charged the existing level of fees.
33 Subsequent to the hearing on 22 November 2017, the nursing home filed with the Tribunal a letter from Centrelink to the nursing home dated 23 October 2017. Centrelink advised the nursing home that AS is to be charged the maximum basic daily fee of $49.43 per day and may be eligible to receive a refund of up to $52,319.
The position of the Public Trustee
34 At the time of the hearing the Public Trustee had not allowed account number 1 pursuant to s 80 of the GA Act.
35 The position of the Public Trustee put by a legal officer at the hearing is that SS's claimed interest in the property is not accepted in the first instance and that account number 1 will not be allowed absent a declaration by the Supreme Court concerning the claimed interest in the property.
36 The Public Trustee accepts that the process of obtaining a declaration from the Supreme Court will be a time consuming and costly exercise but submits that in any case SS is in a position of a conflict of interest as AS's administrator in respect of the claimed interest in the property and that was the reason for seeking review of the first administration order.
37 The Public Trustee does not accept the proposal of SS put by his counsel as to how the matter may be resolved and therefore allow SS to continue as the administrator of AS's estate (see below).
The position of SS
38 In the Centrelink Statutory Declaration SS relevantly states as follows:
• He and AS emigrated to Australia in 1996.
• They lived together until AS needed to be accommodated in a nursing home in October 2015. SS and AS had also, for periods of time, lived together in their country of origin.
• The property was purchased with funds from the sale of the overseas family home (in the sole name of AS), another overseas property (in the sole name of SS), the proceeds of sale of SS's overseas business and motor vehicle (overseas funds) and the joint mortgage.
• A cultural imperative required the overseas family home to be in the name of AS although SS alone repaid the mortgage.
• The same cultural imperative meant that the property was also purchased solely in AS's name.
• The overseas funds were transferred into the joint account. That was the only bank account held by AS and SS until June 2009 when SS opened an account for his business.
• From about 1980 AS has been dependent on SS.
• AS did not apply for the age pension until about June 2015.
39 The primary submission of SS is that the concern raised by the Public Trustee can be overcome if an administration order is made reappointing SS but excluding the property from the estate to be administered.
40 If this is done the submission is that SS will, under reg 4(1) of the GA Regulations, only have to report to the Public Trustee for that part of the estate subject to the administration order which would be all of AS's estate except for the property.
41 It is submitted the property would not be at risk because no person would be able to deal with the property in any way except AS who does not have the capacity to do so and could not give consent. SS will continue to pay the mortgage and insure the property (required under the mortgage). He has an interest in doing so given that it is his residence and he is permitted under the second administration order to reside there.
42 It is submitted that any person trying to deal with the property by registering documents with the Registrar of Titles would need to be able to demonstrate some authority to do so.
43 The second and less preferred option (second option) put by SS is that under the second administration order the Public Trustee has discretion under s 80(1) of the GA Act and reg 4(1) of the GA Regulations to require SS to only account for that part of AS's estate excluding the property. There would be recognition of the claimed interest but it would not be necessary to currently deal with it.
44 The third and least preferred option (third option) is that if AS's entire estate was included in an administration order the accounts could still be passed by the Public Trustee noting the property is subject to the claimed interest which is yet to be resolved rather than recording that SS has the claimed interest.
45 It is submitted that requiring SS to seek a declaration from the Supreme Court as to the claimed interest would be costly and require the appointment of different representatives for AS who would charge fees and be required to engage legal practitioners. AS does not have funds to pay fees and most likely as a consequence the property would need to be sold which would be an 'expensive disaster' for AS (T: 24; 17.10.2017).
46 It is further submitted that if the Public Trustee were appointed the administrator of AS's estate then SS would likely lodge a caveat against the property to protect his claimed interest and that action no doubt would require the Public Trustee to challenge the caveat on behalf of AS leading inevitably to Supreme Court action.
Discussion of the issues
47 When considering the legislative intention of the GA Act, Heenan J said in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] and [44]:
…
From this, [the long title to the Act] and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.
These ends can be achieved, when it comes to dealings with the property and financial affairs of the person in need of assistance, by ensuring that any financial, property or commercial transactions which would, or might, jeopardise the financial security or interests of the disabled person, are only effective when performed by a properly appointed administrator and with the Board's consent. The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. In the main, these will be accomplished by conserving the resources and property of the person under administration for use to his or her own advantage or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration.
48 This is consistent with the primary concern of the Tribunal which is the best interests of the represented person, in this case AS.
49 Fundamentally, the expression 'best interests' in the context of a protective jurisdiction, reinforces the idea that the paramount concern is the overall interest of the person to whom the protection is directed (Public Trustee v Blackwood (1998) 8 Tas R 256) (Blackwood). Put another way, the expression is concerned with the person's 'separate and independent welfare' (Charlton v Baber [2003] NSWSC 745 at [52]).
50 The position of SS is that whilst AS is in need of an administrator of her estate that need does not extend to the property.
51 In MM [2001] WAGAB 2 (MM) the Full Board of the Guardianship and Administration Board (Full Board), citing Blackwood, took the view that determining the 'need of an administrator' in s 64(1)(b) involves a different test to the question of whether 'the needs of the person' in s 4(4) can be met by other means (than the making of an order) that are less restrictive of a person's freedom of decision and action (MM at [55]).
52 The Full Board at [55] decided that a two-step process is required. First there is a need to determine whether there is a need for an administrator pursuant to s 64(1)(b) of the GA Act followed by the need to decide:
…whether, notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person's freedom of decision and action. The first step is the question whether the basic requirements for making an order have been satisfied, that is, whether an order could be made on the facts of the particular case. The second step under s 4(2)(d) [now 4(4)] is the question whether there is any alternative to making an order, that is, whether an order should be made … The Board must be satisfied on the facts and evidence in each individual case that the interests of the person are adequately protected by the informal arrangements.
53 I respectfully adopt the reasoning in MM. In doing so, however, I take the view that the phrase 'less restrictive of the person's freedom of decision and action' in s 4(4) of the GA Act is relative to the extent of the person's impairment. The GA Act must deal with the range of disabilities and the degree to which a person retains a measure of their freedom of decision and action will vary as will the availability of a less restrictive alternative to the making of an order.
54 I have already found that AS is unable to make reasonable judgments in respect of matters relating to all of her estate.
55 By having the claimed interest in the property, the interests of SS are in fundamental conflict with those of AS.
56 What the Tribunal is being asked to do by SS is to allow a legal vacuum to exist in the protection and management of the property so as to forestall the determination of his claimed interest in the property.
57 The rationale offered is that such a legal vacuum is in the best interests of AS because to do otherwise would be to precipitate costly legal action and the likelihood that the property will need to be sold as a result.
58 However, when I consider the legislative intent of the GA Act and the reasoning in MM, I cannot accept what SS proposes is an appropriate less restrictive alternative to the making of a plenary administration order or that the proposal is in AS's best interests because it does not account for her separate and independent welfare. Rather in my view it attempts to account principally for SS's claimed interest in the property.
59 The initial position to be taken by any administrator of AS's estate is that she is the legal owner of the property which is to be used to the extent necessary in satisfaction of her continuing and future needs. Any person making a claim on that property must confront the administrator with that claim and the administrator must determine how to respond to it.
60 The response may not be necessarily that envisaged by SS. It is the role of the administrator to form an opinion of AS's best interests when matters arise in respect to her estate: s70 of the GA Act It is not for the Tribunal to second guess what the decision of the administrator might be in the circumstances of AS at the relevant times.
61 Because of the conflict of interest and because I have decided that it is not appropriate for the proper protection of AS's estate that the property be excised from an administration order, SS cannot be the administrator of AS's estate.
62 Given the conflict of interest I find that SS is unable to perform the functions proposed to be vested in the administrator.
63 I must therefore revoke the order made on 24 April 2017 and appoint the Public Trustee as the administrator of the estate of AS. I find the Public Trustee suitable to act as administrator.
64 I have decided in all the circumstances that the order should be plenary in scope. I accept on the evidence that the finances of AS have over a long period of time been managed by SS and more likely than not she would wish for that to continue. However, I find that it is in AS's best interests that the Public Trustee have control of her whole estate to give the greatest flexibility in whatever action might need to be taken to advance and protect those interests.
65 As to the fees that the Public Trustee is permitted to levy, I adopt the reasoning of the Full Board of the Guardianship and Administration Board in SMPM (also known asSMYM orSMY) [2004] WAGAB 3 at [12] that the fact the Public Trustee charges fees which are fixed by Parliament does not of itself render him unsuitable to be appointed as administrator.
66 SS resides in the property as he has been doing since it was purchased. The second administration order allows him to do so free of rental payment. In the circumstances, s 72(3) of the GA Act requires that the Public Trustee be given the discretion to allow that practice to continue. I will give the Public Trustee the scope to vary the discretion depending on the circumstances to enable a decision to be made for payment at less than market rental (which is meant to include but not be limited to charging no rent as is currently the case).
67 There is no need for me to determine the second and third options submitted by SS. They relate to the Public Trustee's role under s 80 of the GA Act and the GA Regulations and are not matters for the Tribunal.
Orders
- The Tribunal declares that the represented person, [AS]:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b) is in need of an administrator of her estate,
and the Tribunal orders that:
The administration order dated 24 April 2017 is revoked and an order in the following terms is substituted for it:
1. The Public Trustee of 533 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. The administrator is authorised at the discretion of the administrator to allow the represented person's son, [SS] to live in the represented person's property at [address].
3. The administration order is to be reviewed by 29 December 2022.
- I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, SENIOR MEMBER
3
2