BME - [2012] WASAT 95

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: BME [2012] WASAT 95

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS F CHILD (MEMBER)
MS L WARD (MEMBER)

HEARD: 3 APRIL 2012

DELIVERED : 3 APRIL 2012

PUBLISHED : 9 MAY 2012

FILE NO/S: GAA 525 of 2012

BETWEEN: BME
Represented Person

Catchwords:

Guardianship and administration Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) of decision to appoint Public Trustee as plenary administrator Evidence before the Full Tribunal not before member at original hearing Represented person's house occupied by family member rather than commercially rented or marketed for sale Arrangement could be characterised as disposition of an ex gratia nature Represented person suffering dementia Represented person derives enjoyment from visits to her former home Determined that not in best interests of represented person to upgrade property for commercial rental or sell house against her expressed wishes Authority granted to the administrator pursuant to s 71(5) of the Guardianship and Administration Act 1990

Legislation:

Guardianship and Administration Act 1990 (WA), s 17A, s 64, s 71(5), s 72(3), s 84

Result:

Order appointing Public Trustee as plenary administrator revoked
Represented person's daughter-in-law appointed as plenary administrator and authorised, pursuant to s 71(5) of the Guardianship and Administration Act 1990 (WA), to permit a family member of represented person to reside at her property on condition that family member maintains property and pays outgoings

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An application was made for review of a determination of the Tribunal, when constituted by a single member, by a Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA). Limited evidence was presented at the original hearing, and the Tribunal had considered it appropriate to appoint the Public Trustee as plenary administrator due to concerns about whether the represented person's accommodation arrangements and the occupation of her house by a family member was in the represented person's best interests.
On review, the Full Tribunal was assisted by the presentation of additional evidence from the applicant, the represented person's daughterinlaw, as well as a report from the Public Trustee that was not available to the original member. This evidence cast a different light on the financial position in relation to the represented person's house. The Tribunal heard that it was the represented person's clear wish to retain ownership of the house in her lifetime. The Tribunal also had material before it of the benefit derived by the represented person of visits to her house.
Weighed against the uncertain prospect of a financial return from the sale or rental of the house, which would require the outlay of a significant portion of the represented person's assets, the carrying out of repairs to bring the house to a marketable standard was not considered to be in the represented person's best interests.
The Tribunal was satisfied that an administration order should be made owing to the represented person's progressive dementia, and that the evidence before it indicated that the applicant was an appropriate person to be appointed as plenary administrator as she had been satisfactorily managing the represented person's banking, personal and medical arrangements for sometime, and had the support of each of the represented person's children.
The Tribunal's oral reasons, taken from the transcript and edited in minor respects for clarity, were as follows.

Introduction

This proceeding involves an application made by RFE (applicant), under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act), for review by a Full Tribunal of a determination made by Member D Dean on 18 January 2012, appointing the Public Trustee as plenary administrator for the estate of the applicant's motherinlaw, BME (represented person).
The represented person, a lady almost 95 years of age, has progressive dementia and now resides in the dementia unit of an aged care facility in Bunbury.
The applicant seeks the revocation of the appointment of the Public Trustee as plenary administrator for the represented person and the appointment of herself as plenary administrator. This application is made with the support of each of the represented person's four sons and with the support of the manager of the aged care facility.

The member's original determination

The applicant has assisted the represented person in relation to financial matters, as well as medical and other appointments, with the blessing and support of the rest of the family, for a very long period of time. The applicant is, together with her brotherinlaw, a signatory on the represented person's cheque account.
Because the represented person is required to pay approximately $200 per fortnight to the aged care facility above the aged pension, the applicant arranged for that amount to be paid from the cheque account. As the balance of the cheque account was nearing zero, the applicant sought to transfer funds from the represented person's fixed term account which, at that stage, had a balance of over $40,000, into the cheque account, only to be told that she did not have authority to do so.
On the advice of the represented person's general practitioner, the applicant therefore applied to the Tribunal to be appointed as plenary administrator for the represented person. Before she did so, the applicant paid $1,000 of her own money to supplement the represented person's cheque account.
The applicant attended the hearing before Member Dean on 18 January 2012 by telephone from Bunbury. Noone else attended the hearing. During the discussion between the member and the applicant, it emerged that the represented person has a house that is not commercially rented but, rather, is occupied by one of her family, namely, a stepgranddaughter, who is, in effect, a caretaker, paying utilities and expenses, whereas, as we have said, the represented person is required to pay $200 per fortnight to the facility, it appears, instead of a bond.
Understandably, given the information that was provided to the Tribunal by the applicant, the member expressed concern that the arrangement with the stepgranddaughter may be an unauthorised gift that is not in the best interests of the represented person because it resulted in her not receiving a commercial rent, whereas she has to pay $200 per fortnight to the aged care facility.
The member asked the applicant, (at T:9.9;18.01.12), how she would feel about telling the rest of the family that the arrangement would have to cease, and that the house would be sold or rented, to which the applicant replied, (at T:10.1; 18.01.12), that she is '[p]robably not going to be very popular' with the family.
The member then said, (at T:10.2; 18.01.12), as follows:
No, that is what I was thinking, which makes me think that it might be more appropriate at this point to appoint the Public Trustee and they can make all these difficult decisions, and they are difficult decisions, about what to do about the house and the potential income that is being missed out on with the current arrangements, because it cannot go on.
I do not see any justification for the loss of $200 per fortnight, but it also makes me wonder if she has been assessed incorrectly, because that is quite a high accommodation rate, and her assets are not huge.
After further discussions, the member observed, (at T:12.7; 18.01.12), that, although she could authorise the arrangement with the stepgranddaughter, she would 'need some evidence that it is in [BME's] best interests'.
The member said that:
While she is $200 a fortnight out of pocket because of her accommodation fees, I cannot see any justification for that. I do not see that it is in her interests at all. Does that make sense?
To which the applicant said, 'Yes'.
Ultimately, (at T:17.3; 18.01.12), the member made the determination that is now sought to be reviewed as follows:
For all the reasons that we have talked about, I am going to appoint the Public Trustee what we call 'plenary administrator'. I am going to make it for one year. If it all gets resolved sooner than that you know, the Public Trustee sort it all out sooner than that and you are still keen to be the administrator, you can certainly apply for it to be reviewed before the 12 months is up.

Evidence presented to the Full Tribunal that was not presented to the member

Significantly, the member was not provided with evidence to show that the arrangement with the stepgranddaughter is in the represented person's best interests. In fact, the evidence presented to the member showed that the arrangement appeared not to be in the best interests of the represented person.
In particular, (at T:9.1T:9.3; 18.01.12), the applicant gave evidence that the represented person's house is both 'liveable' and 'rentable', in response to specific questions by the member. She also said that if she were appointed administrator, as we have said earlier, she would be placed in a difficult position in relation to her relationship with the rest of the family if the property was to be rented or sold.
However, the evidence presented by the applicant, and by others on her behalf, to the Full Tribunal casts an entirely different light on the arrangement with the represented person's stepgranddaughter and what is in the best interests of the represented person, both financially and, more broadly, in relation to the house.
The evidence shows that the represented person had expressed the wish, in her Will and elsewhere, that her house, which was the family home for 60 years and in which she and her husband raised their four sons, should not be sold during her lifetime.
The represented person, furthermore, has expressed the view and belief that she is 'going home'. She regularly asks to go home, and the family has routinely taken her home to her house where she has enjoyed afternoon teas and the opportunity to see her house and garden.
Dr GT, who has been the represented person's general practitioner for a decade, expressed the following opinions in his medical reports that have been provided, it appears, for the purposes of this review. Dr GT said about the represented person:
She still, however, has sufficient awareness of her surroundings and her situation, and often asks to be taken home to see her house and garden, and in fact hopes one day to be able to return home to live independently. This unfortunately is never going to occur.
Dr GT also said:
The sale of her assets, which I understand to be her home of 60 years, may well have a detrimental effect on her wellbeing. I say this because I understand that she makes occasional visits to inspect the house and in particular the gardens, and she derives some pleasure from that.
The represented person's stepgranddaughter, NLP, also said the following:
My son and I keep the huge lawn area mowed and the gardens tidy. [BME] has visited and sat in the garden and had many cups of tea with me and my children in the past. Now having difficulty in walking, my mother brings [BME] for a visit but she is unable to get out of the car. Her whole face lights up when there are ripe passionfruit or strawberries picked from her garden that she planted.
Furthermore, whereas the member was told during the hearing that the house is 'liveable' and 'rentable', the evidence from the Public Trustee shows that it would cost approximately $13,000 to make the house commercially rentable. The estimate of a real estate agent presented by the applicant is that it would cost between $20,000 and $30,000 to bring the property which the agent, TB, considered to be 'in very poor condition' to an 'acceptable rental standard'.
Furthermore, the evidence suggests that there is an oversupply of rental properties in Bunbury at present. There is therefore no guarantee that the property would be rented, even if $13,000 or $20,000 $30,000 was spent. If it were rented, it appears that it would earn a rental of approximately $220 per week.
Furthermore, as the representative of the Public Trustee who attended before us observed, there is unlikely to be a financial return to the represented person during her lifetime from a proposal to upgrade the property for rental purposes, given the substantial cost of upgrading involved.
The Public Trustee also said that even a sale of the property is an unknown quantity, given the extent of the poor condition of the house, the amount of work involved, and the locality in which the property sits.
The Tribunal therefore finds, on the evidence presented to the Full Tribunal but not available to the member, that upgrading the property for rental would not be in the financial best interests of the represented person.
Furthermore, s 71(5) of the GA Act states:
In exercising its jurisdiction under this part the State Administrative Tribunal may take a liberal view of the best interests of the represented person as mentioned in section 4(2), and in particular may, if the circumstances so require, empower an administrator to make a payment or enter into a transaction of a kind described in section 72(3) on behalf of the represented person.
The legislation therefore enables the Tribunal, in an appropriate case, to take a broader view of the best interests of a represented person than simply their financial best interests.
Based on the evidence presented to the Full Tribunal, which was not available to the member, we consider that it would not be in the best interests of the represented person, and that it would not be consistent with her expressed wishes, for the property to be either upgraded for rental or for sale, as it may have a detrimental effect on her wellbeing, as indicated by her general practitioner, would deny her the enjoyment of visiting her house and garden, and would substantially deplete the $40,000 reserve that she has for an uncertain rental or sale of the house.
Furthermore, we find that the arrangement that exists with the represented person's stepgranddaughter, under which she pays all utilities and expenses for the upkeep of the house, is a reasonable financial arrangement in all the circumstances, having regard to the condition of the property.
It is preferable, in the circumstances of this case, consistent with the represented person's expressed wishes and her best interests, for the house to remain being occupied by a member of the family, provided that the family member maintains the house and pays all utilities, rates, taxes, maintenance expenses and so on, and that the property therefore remains available, whether actually or potentially, for the represented person's enjoyment.
There are sufficient funds available in the $40,000 reserve for the payment of the additional $200 per fortnight for a considerable period. We therefore find that the current arrangement in relation to the house is in the best interests of the represented person.

Can an administration order be made?

Section 64 of the GA Act states that an administration order may be made where a person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his or her estate; and is in need of an administrator of his or her estate.
We are satisfied, on the medical evidence of Dr GT, that, in this case, an administration order can be made because the represented person is unable, by reason of her progressive dementia, to make reasonable judgments in respect of matters relating to any part of her estate.

Is there a need for an administration order?

The Tribunal is satisfied that there is a need for an administration order in the circumstances of this case, given that there is a shortfall in accommodation costs from the aged pension and given that there is a property to be maintained.

Should the administration order be limited or plenary?

The Tribunal would always strive to minimise the extent of interference with a person's ability to make decisions about their life. However, in the circumstances of this case, we consider that a plenary order is appropriate and that a limited order would not serve the best interests of the represented person.

Should the applicant or the Public Trustee be appointed as plenary administrator?

Given our finding that the current arrangement in relation to the house and the payment of the $200 per fortnight to supplement the aged pension is in the best interests of the represented person, the member's concern, which, as we have said, was understandable based on the information then available, disappears.
There is no need, in the circumstances of this case, or at least any longer, for the appointment of a third party to administer the represented person's estate. Having said that, as it turns out, the family has the benefit of the report prepared by the Public Trustee and the inquiries made by the Public Trustee.
The appointment of the Public Trustee will involve a cost on the estate which, in the circumstances and given the availability of an alternative administrator, is unnecessary.
The applicant has managed, as we have said, the represented person's banking, shopping and medical arrangements for a considerable period of time. She has kept records of all moneys spent from the represented person's cheque account over the last three years, which are available to the Tribunal. She has done all of this with the blessing and consent of each of the represented person's children.
Furthermore, there is evidence that the represented person has previously said, '[RFE] looks after me, looks after everything now that I can't', which indicates that appointment of the applicant as administrator is consistent with the represented person's wishes as previously expressed.
For these reasons, we consider that it is appropriate, having regard to the information available to the Tribunal, to revoke the administration order in favour of the Public Trustee and to appoint in its place the applicant as plenary administrator.

For how long should the administration order be made?

The maximum period of time contemplated by s 84 of the GA Act for an order of this nature is five years. Given that the medical evidence indicates that the represented person is unlikely to improve in her condition, it is appropriate, in our view, to make the order for the maximum period that is available under the Act. So an order will be made reviewable five years from today.

The arrangement in relation to the represented person's house

Finally, in relation to the orders that are appropriate, we consider that the administrator would require authority from the Tribunal to sanction the current arrangement in relation to the house, because the property could potentially be upgraded and sold at market. As we have found, the upgrading for rental of the property would not be in the best interests of the represented person and, on balance, neither would the upgrading and sale of the property at this time.
However, to forego the potential benefit to the represented person's estate of upgrading and sale from a purely financial perspective, it is appropriate, in our view, to make an order authorising the administrator to forego the potential market sale of the property and to maintain the current situation under which a family member remains in the property and maintains it.
That order should be made pursuant to s 71(5) of the GA Act, which goes on to state that the Tribunal may, in particular, 'if the circumstances so require, empower an administrator to make a payment or enter into a transaction of a kind described in section 72(3) on behalf of the represented person'.

Section 72(3) of the GA Act states that:
Notwithstanding this section or section 71, an administrator shall not without the authority of the State Administrative Tribunal under section 71(5)
(a)make a payment or disposition of a charitable, benevolent or ex gratia nature; or
(b)make a payment in respect of a debt or demand that the represented person is not obliged by law to pay.
As the current arrangement could be characterised as a disposition of an ex gratia nature, it is appropriate to authorise it, to put beyond question the authority of the administrator to continue the current arrangements.

Orders

For all of these reasons we make the following orders:
1.The order appointing the Public Trustee as plenary administrator of the estate of the represented person on 18 January 2012 is revoked.
2.[RFE] 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.Pursuant to s 71(5) of the Guardianship and Administration Act 1990 (WA), the administrator is authorised to permit a family member of the represented person (including her stepgranddaughter) to reside at her property at [address deleted], on condition that the family member maintains the property and pays all outgoings including rates, taxes, charges, insurance, maintenance and other expenses.
4.This order is to be reviewed by 3 April 2017.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT