BW - [2008] WASAT 82 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: BW [2008] WASAT 82

MEMBER: MS D DEAN (MEMBER)

HEARD: 16 JANUARY 2008
27 FEBRUARY 2008

DELIVERED : 16 APRIL 2008

FILE NO/S: GAA 2394 of 2007

BETWEEN: BW
Represented Person

Catchwords:

Application for Guardianship - Application for administration Capacity to make reasonable judgments - Need for a guardian - Need for an administrator - Need for an independent decisionmaker - Perpetual Trustees appointed plenary administrator - Remuneration of administrator - Public Advocate appointed limited guardian - Application for costs to be paid out of the estate of the represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 16(4), s 43, s 44, s 51, s 64, s 68, s 70, s 97(1)(b), s 117
Trustee Companies Act 1987 (WA)

Result:

Public Advocate appointed limited guardian
Perpetual Trustees appointed plenary administrator
Applications for costs pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) are dismissed

Category: B

Representation:

Counsel:

Represented Person : Selfrepresented

Solicitors:

Represented Person : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

BW, an elderly man, diagnosed with dementia had been married and divorced three times. He had three children by two of his wives. His eldest child, a daughter, made applications to the Tribunal for guardianship and administration orders precipitated by BW's inappropriate financial and lifestyle decisions which the daughter deemed put him at risk in various ways.
Although the exact details of his estate were not known, it was thought to be large and complex and included property, shares and cash. The daughter proposed Perpetual Trustees as administrators. For the Tribunal to appoint a trustee company it must first find an individual, in this case the daughter, suitable to be appointed and she must request in writing the appointment of the trustee company.
The Tribunal found the daughter suitable to act and in response to her written request that Perpetual Trustees be appointed, the Tribunal appointed Perpetual Trustees plenary administrator of the estate of BW.
The Tribunal was advised that in the interests of preserving family relationships and harmony, a guardian independent of the family would be in the best interests of BW and indeed, BW himself indicated, through his nominated spokesperson, that if an appointment was to be made he would prefer someone independent of his family.
The Tribunal appointed the Public Advocate limited guardian for a period of two years by which time it was likely that the accommodation issue would have been resolved and a family member might be in a position to take on the role of decisionmaker for medical and other lifestyle issues.
Solicitors representing the applicant daughter and the third former wife made applications to the Tribunal for payment of their legal costs out of the estate of BW pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA). Although guardianship and administration is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BW

Details

AGLC: BW [2008] WASAT 82
Case: [2008] WASAT 82
Decision Date: 16 APRIL 2008

CaseChat Overview and Summary

In the matter of BW, the State Administrative Tribunal was tasked with determining the appropriate guardianship and administration arrangements for the represented person, BW. The primary dispute was between two of BW's daughters, KB and KW, each seeking to be appointed as either a guardian or an administrator for their father, with differing views on the best way to protect his interests and ensure his care. The Tribunal had to decide on the remuneration for the appointed administrator, the allocation of guardianship and administration roles, and whether to award costs incurred by the applicants from BW's estate.

The legal issues before the Tribunal included whether the estate was sufficiently complex and sizeable to warrant the remuneration of the appointed administrator, as required by Section 117 of the Guardianship and Administration Act 1990 (WA). Additionally, the Tribunal had to consider the principles outlined in Section 4(2) of the Act when making decisions about guardianship and administration, including ensuring the best interests of the represented person and imposing the least restrictions possible on their freedom of decision and action. The Tribunal also had to determine whether costs incurred by the applicants in the proceedings should be paid from BW's estate, as requested by both KB and KW.

The Tribunal found that the estate was of sufficient size and complexity to warrant the remuneration of the appointed administrator, as per Section 117 of the GA Act. It appointed Perpetual Trustees as the plenary administrator and the Public Advocate as the limited guardian, considering this arrangement to be in BW's best interests, particularly in relation to his relationship with his two younger children. Regarding the costs, the Tribunal awarded $3,459.21 to KB and $2,662.20 to KW, both to be paid from BW's estate. The Tribunal concluded that legal representation was necessary for both applicants to protect BW's interests and ensure proper proceedings, and that the costs were reasonable given the circumstances.

In conclusion, the Tribunal's decision provided a structured and balanced approach to the guardianship and administration of BW's affairs, taking into account the best interests of the represented person and the need for the least restrictive measures possible. The remuneration for the administrator was deemed appropriate, and costs incurred by the applicants were awarded from BW's estate, reflecting the complexity and necessity of the legal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Remuneration of the administrator Section 117 of the Guardianship and Administration Act 1990 (WA) (GA Act) provides for the circumstances in which an administrator may be remunerated. Once a decision has been made to appoint an administrator, if remuneration is required the Tribunal must be satisfied that the estate is of sufficient size and complexity that remuneration should be paid to the administrator. Applications for costs to be paid out of the estate of BW KB, through her legal representative, made application seeking an order pursuant to s 16(4) of the GA Act for costs incurred by her in making applications to the Tribunal for guardianship and administration orders in respect of her father, BW. The amount sought is $3,459.21 on the basis that KB required legal advice and assistance in order to protect BW from his actions, to prepare applications and submissions to the Tribunal and to provide legal representation to the Tribunal. It is proposed that, without legal advice and representation, KB would have found it too difficult to investigate her father's affairs and instigate and follow through with the proceedings, especially as it followed so closely on the death of her husband. KB is said to have limited resources and three dependent children who are all studying at university. KW, through her legal representative, made application seeking an order pursuant to s 16(4) of the GA Act for costs incurred by her in relation to the applications for guardianship and administration on the basis that if costs were awarded to KB and Perpetual Trustees it would be appropriate for a similar order for costs to be made in favour of KW. The amount sought is $2,662.20. KW submits that she is the only party in the proceedings who is concerned to represent the best interests of BW in regard to his relationship with his two youngest children of whom she is the mother. KW further submits that legal representation was required because KB has not been clear and consistent in the information she has provided to KW and indicated that she proposed herself as administrator. KW is of the view that it is in the best interests of BW, particularly in terms of his relationship with his two younger children, that an appointment independent of the family be made. 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 GA Act. These principles are:"(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."