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 a no cost jurisdiction with parties bearing their own costs, the Tribunal may, if it thinks fit, order that costs be paid out of the estate of the represented person. In this case, the Tribunal found that there was no evidence to indicate that such payment was warranted and therefore dismissed both applications for costs.

Background

BW is an elderly man diagnosed with dementia who has been married and divorced three times. He has three children by two of his wives. The two youngest children are still financially dependent on their parents.
Applications for administration and guardianship were made by KB, the daughter and eldest child of BW. In order to preserve the quality of her relationship with her father, KB subsequently proposed PP, mental health social worker, as a substitute applicant to herself.

Evidence provided to the Tribunal prior to the first hearing

The following documents were provided to the Tribunal prior to the hearings:
•Documents from the solicitor representing KB including:
•applications for administration and guardianship made by KB who subsequently requested substitution of PP as applicant in order to preserve the relationship between herself and her father, BW.
•bank statements, share dividend statements and other information in relation to BW's estate.
•a copy of certificate of title for a property owned by BW.
•three wills executed by BW over a period of years.
•information in relation to BW's aggressive and concerning behaviours including his attempts to purchase $750,000 worth of shares when he did not have sufficient funds available for such a purchase; becoming "distressed and disoriented" resulting in his wandering and admission to hospital; not taking his prescribed medications as required.
•an outline of the reasons why KB does not believe KW, the exwife, should be considered for appointment as administrator.
•a copy of a letter written by KB requesting the appointment of Perpetual Trustees as administrator of the estate of BW.
•A social work report from Sir Charles Gairdner Hospital dated 30 November 2007 detailing a psychosocial history and identifying the reason for hospital admission as "acute delirium on a background of probable dementia". The report provided the following information. BW was discharged from the hospital to live with his first wife, EW. He has a very supportive daughter, KB, who visited him regularly in hospital. He had no contact with his other children while in hospital. An attached cognitive assessment completed by an occupational therapist on 20 November 2007 found that BW has "difficulty with orientation, language comprehension, construction, memory and reasoning". The report stated that BW is likely to be able to manage simple daytoday budgeting decisions but will require help with bill paying and managing large amounts of money. The safety and well being of BW's assets are currently at risk because of his inability to make reasoned decisions.
•A report from the geriatric registrar at Sir Charles Gairdner Hospital dated 5 December 2007. The geriatric registrar reported that as the delirium resolved, BW was left with "very poor short term memory and evidence of executive and perceptive dysfunction". She assessed him as incapable of executing an enduring power of attorney or of making reasonable decisions in respect of his finances because of "concrete decision making processes; repetitive rationalisation of decisions made. Poor memory of previous conversations regarding capacity". He had a MMSE score of 22/30 on discharge from the hospital.
•A report from Dr N, hospital medical officer dated 7 January 2008 who reports that BW has been diagnosed with "dementia - probable Alzheimer's type - moderately severe". BW has "delusions and paranoia" "[h]as progressive memory impairment … poor insight and poor judgment, impulsive, physically and verbally aggressive". Olanzapine (an antipsychotic medication) is having a moderating effect on his behaviour. Dr N assessed BW as incapable of making reasonable decisions in relation to his lifestyle, accommodation and health care. She said he needs assistance and prompting with basic care needs. She also assessed him as incapable of executing an enduring power of attorney. Dr N said that attending the hearing could be detrimental to BW's health. She described his aggressive and threatening behaviours in hospital which resulted in him having his walking stick removed and, on occasion, necessitated the use of physical force to return him to the ward.
•A report from RH, Council of Official Visitors dated 7 January 2008, providing a psychosocial history in relation to BW. RH advised in this report that he was "unable to give an opinion" in relation to BW's capacity to make reasoned decision in respect of his finances or lifestyle.
•A copy of a report dated 15 January 2007 from a clinical psychologist (MW) to Dr F, consultant psychiatrist, in relation to a cognitive assessment which demonstrated that BW "has some memory impairment, particularly in the short delay domain in both auditory and visual formats, and he performed consistently at an impaired level on such tasks". He has a "reduced ability to learn new information". He has "executive functioning impairment which will impact on his ability to make sound judgments and also predicts likely difficulty in many aspects of everyday functioning". He "minimises his difficulties, lacks insight into the impact of these difficulties and confabulates to cover for these difficulties". "Although it is preferable to accommodate a patient's wishes to the greatest degree possible, it is my belief that accommodating [BW's] wishes to remain in control of his own affairs will leave him vulnerable to the effects of his limited insight and compromised judgment and decision making abilities". The clinical psychologist recommends that "a level of protection needs to be given to [BW] … to assist him with his decision making and his financial affairs".

Evidence provided to the Tribunal prior to the second hearing

•A submission from solicitors representing Perpetual Trustees outlining and comparing costs between Perpetual Trustees and the Public Trustee for management of the estate of BW. The submission states that it is difficult to make direct comparisons because Perpetual Trustees and the Public Trustee have quite different ways of calculating and charging their fees.
•A submission by KW outlining the reasons why she prefers an appointment of an administrator outside the family.

Application for costs
•An application for her legal costs in relation to the applications to be paid out of the estate of BW was made by KB.
•An application for her legal costs in relation to the applications to be paid out of the estate of BW was made by KW.
Hearings
The applications were heard over two hearings. BW attended by telephone for part of both hearings. Other parties attended in person and included PP, the substitute applicant, representatives of the Office of the Public Advocate (OPA), RH, a friend of BW and representative of the Council of Official Visitors, MF, solicitor for Perpetual Trustees, representatives of Perpetual Trustees (Perpetual Trustees), KB, HK, solicitor representing KB, KW and RT, the solicitor representing KW. Dr F, the current treating psychiatrist, attended the first hearing only and AW, son of BW and KW, attended the second hearing only.
The Tribunal was advised that the guardianship application was made because decisions need to be made about accommodation and health care. KB indicated that neither she nor her stepmother, EW, with whom he has a close relationship, wish to take on the role of guardian as it will compromise the relationships they have with him. For this reason she proposes the appointment of the Public Advocate.
RH, nominated by BW as his representative and spokesperson, informed the Tribunal that BW does not want a guardian but if one was to be appointed he would probably prefer the Public Advocate rather than a friend or family member.
Dr F provided evidence that BW, because of his lack of insight into his medical needs, refuses medical treatment considered necessary by the treating team. In addition, because of his aggressive outbursts, it may be necessary in the future for consideration to be given to prescribing medications to control this aggressive behaviour.
Dr F further advised that BW is currently on several medications including Olanzapine which is being used to control "his arousal and potential for aggression" and "also to help him be more contented and not so aroused and continually worried". In addition to this, he is on an antidepressant medication which is being prescribed to "decrease his impulsivity because his frontal lobes are not working properly due to his dementia". Dr F advised:
"Because he is being treated under the Mental Health Act [involuntary order] we haven't actually discussed with him in detail the reasons why we are giving him this medication, but whenever we have the discussions about treatment, he has refused to take medication. He is taking it now because he is losing track of what he is taking." (First hearing T:30)
Dr F said that a formally appointed decisionmaker may be required to make a decision in respect of the use of chemical restraint. Dr F advised that, although the treating team had deemed BW incapable of making medical decisions for himself, this had not impacted on his treatment as he is currently on a mental health order which ensures that he remains in hospital. If his potential for aggression doesn't reduce over time this may prevent him from going into appropriate residential care in the future.
After hearing the evidence provided in the hearing, OPA advised that there is a need for a guardian and that it is in the best interests of BW that a guardian independent of the family is appointed.
The Tribunal heard that the application for administration was prompted by BW's attempts to purchase shares worth hundreds of thousands of dollars which is far in excess of the monies he has available for such purchases. In addition, there is evidence that large sums of money have been drawn out of his accounts with no explanation as to where the money has gone or what it may have been used for. Bills have not been paid resulting in his telephone being disconnected.
The applicant advised that, because BW does not believe he is in need of any help, if support services are arranged and provided for him without an administrator being appointed to take responsibility for payment, he will not pay for these services. Similarly, if moved into permanent supported care, which is the preference of his treating team, BW will refuse to pay for his accommodation because he does not believe he needs it.
KB proposed that Perpetual Trustees take on the role of administrator being a party independent of the family, and in her view, more likely to involve, or at least keep BW informed about the management of his large and complex estate. KB explained that this is important for her father who, because of his past life experiences and personality type needs to feel he has some control over matters to do with himself.
When asked if he thought any other person would be suitable to take on the role of administrator, BW stated that it would be too great a burden for his wife (presumably EW) and in the first hearing said he doesn't want his daughter to take on the role.
BW indicated quite strongly throughout the first hearing that if an administrator is to be appointed, he wants it to be the Public Trustee about whom he says he has heard good things.
KW, through her legal representative, informed the Tribunal that she does not wish to take on the role of either guardian or administrator but proposes that independent parties such as the Public Advocate and the Public Trustee or Perpetual Trustees take on these roles. She explained that BW continues to provide financial support for their two children, one of whom is still at school, and that, because of the acrimonious relationship between her and KB, this could be at risk if KB was appointed, particularly in the role of administrator.
KB explained that the recent death of her husband, and the time and care she continues to give to her father and stepmother, makes it difficult for her to have the energy to take on the role of administrator of her father's large and complex estate. In terms of the ongoing maintenance of BW's children from his third marriage whom he continues to support financially, KB indicated that, if appointed administrator, she would continue paying maintenance from her father's estate as she has been doing while managing her father's finances in an informal way. KB stated that she sees the relationship between BW and his younger children as very important, and she believes it is in his interests that these relationships be fostered.
There was some discussion about the university and school fees for these children as, without the authority of an administrator to access BW's bank accounts and to reimburse their mother, these fees cannot be paid. KW informed the Tribunal that she receives regular maintenance for the children, she either pays and is reimbursed by BW for school and university fees, books and uniforms, etc, or she provides him with the accounts which he pays. Either way, she acts as an intermediary in the process. KW indicated that her relationship with KB is conflictual and therefore she favours the appointment of an independent administrator.
In the first hearing, RH stated that BW, in conversations with him, while protesting that he is capable of managing his finances himself, "appeared to have an understanding of the function of the Public Trustee" (first hearing T:53) and also had an understanding of the differences between the Public Trustee and Perpetual Trustees. This was contested by the applicant who stated that in her conversations with BW it was clear that he "does not understand the difference between the Public Trust [sic] and Perpetual Trustees. He quite clearly sees them one and the same and he's very clear that he doesn't need either of them". (first hearing T:53). KB indicated that when she and her stepmother spoke to him, it was clear BW "believes that the Public Trustee doesn't charge and Perpetual Trustee[s] do" (first hearing T:53). KB said she was unable to dissuade him from this belief.
There was a brief discussion in the first hearing in relation to the fees charged by the Public Trustee and Perpetual Trustees. Perpetual Trustees agreed to provide in writing to the Tribunal an outline of their fee structure. The application for administration was adjourned for a submission from Perpetual Trustees in relation to their fees and a comparison of this with the Public Trustee's fee structure.
The Tribunal was provided with a submission from Perpetual Trustee prior to the second hearing in which they outlined their fee structure and stated that it was difficult to make direct comparisons because both companies have quite different ways of calculating and charging their fees.
KB explained that after the first hearing she spoke to her father who said he wants her to take on the role of administrator. He does not want an appointment outside the family. KB acknowledged that in the first hearing she had advised that BW did not want her appointed and that she did not wish to take on the role because of the possible negative impact on her relationship with BW. KB said that because of his compromised hearing, BW sometimes answers what he thinks he heard rather than what has actually been said and this may be what happened in relation to BW's wish expressed in the first hearing that he does not want her appointed his administrator.
RH explained that before the first hearing BW was very angry with his family for arranging for him to move into supported residential care. Subsequently, when RH spoke to BW prior to the second hearing he appeared to have come to terms with the fact that he needs to be in supported accommodation "he clearly told me he wanted [KB] to manage all his affairs" (second hearing T:19). He said that she must do this as she is now the head of the family. RH said that BW accepts that KB must make the decision as to how his affairs are to be managed and this would include management by Perpetual Trustees.
RT said that her client was in agreement with the appointment of Perpetual Trustees but would not be in favour of KB because of the tension between some family members.

Perpetual Trustee spoke to their fees submission and acknowledged that it is very difficult to compare costs between their service and that of the Public Trustee. This is further complicated by the fact that the exact size and nature of the estate is unknown at this time. Perpetual Trustees proposed that if appointed they would immediately commence an investigation of the extent of the assets of the estate. Given the probable size and complexity of the estate, this could be a lengthy process taking several months.
Based on the information available for the hearing, it would appear that BW has an estate in excess of $1 million dollars which is currently generating an income of $82,500 per annum. The Tribunal heard that BW is a "generous person" who has historically given expensive gifts, including cars to his children, paid university fees and expenses for his three grandchildren, financially supported his two younger children with the intention of supporting them through university in the future, given large sums of money for Christmas and birthdays to various family members including his children, grandchildren and first wife, EW.
The Tribunal heard from KB that BW sold some valuable coins on behalf of EW with the money being deposited into his bank account to later be transferred to EW. The coins were sold for approximately $51,000 with the money not yet transferred to EW.
KB informed the Tribunal that since BW's bank accounts cannot be accessed, she has been paying accounts for him totalling approximately $3,000 which is currently owed to her.
The Tribunal was informed that when BW moves into low level supported care, there will be a bond due of approximately $85,000. The accommodation fee will be around $38 a day which is the maximum that can be charged, plus the cost of pharmaceuticals and incidentals. Until paid in full, the bond is accruing interest.
There was some discussion as to whether provision could continue to be made for various family members. It was accepted that this could not be decided until the full extent of the estate is known.
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.

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 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."
Section 16(4) of the GA Act provides that the Tribunal may order such costs relative to the proceedings as it thinks fit if it is satisfied that a party has acted in the best interests of the represented person.
"The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person."
Section 43 of the GA Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
"(1)…
(a)has attained the age of 18 years;
(b)is -
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian …"

Section 44 of the GA Act provides for who may be appointed guardian:
"(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal -
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.

(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible -
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person’s estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.

(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act."

Section 64 of the GA Act provides for the appointment of an administrator.
"(1)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 under section 40 -
(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 …"
Section 51 and s 70 of the GA Act provide that a guardian and an administrator must act in the best interests of BW and in particular (s 51(2)(g) and s 70(2)(g)) act in such a manner as to maintain any supportive relationships he has.
Section 51:
"(1)Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible -
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person’s previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person’s familiar cultural, linguistic and religious environment.
(3)Nothing in subsection (2)(a) shall be read as authorising a guardian to act contrary to the Legal Practice Act 2003."
Section 70:
"(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 -
(a)as an advocate for the represented person in relation to the estate;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from financial neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person’s previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person’s familiar cultural, linguistic and religious environment.
(3)Nothing in subsection (2)(a) shall be read as authorising an administrator to act contrary to the Legal Practice Act 2003.
(4)Nothing in subsection (2) shall be read as restricting the functions of an administrator at common law or under any written law."
Section 68(2) of the GA Act stipulates who may be appointed administrator, specifically:
"(2)The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that -
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment."
Section 117 of the GA Act provides for the circumstances in which an administrator may be remunerated:
"(1)The State Administrative Tribunal may fix remuneration or a rate of remuneration and order that the same be paid to an administrator out of the estate of the represented person if the Tribunal considers that, because of the size or complexity of the estate or both, remuneration should be paid to the administrator.
(2)A guardian, and except as provided in subsection (1) an administrator, shall not receive remuneration for services rendered to the represented person.
(3)Nothing in this section -
(a)prevents the Public Trustee from receiving remuneration under the Public Trustee Act 1941; or
(b)limits the operation of section 16 of this Act or section 39, 87 or 88 of the State Administrative Tribunal Act 2004.
(4)Subject to subsection (3)(a), a corporate trustee shall only be entitled to commission in respect of the capital of the estate of a represented person to the extent that the State Administrative Tribunal expressly allows."

Findings and reasons

Capacity

In this case two applications for orders were made, one for guardianship and one for administration. Although there are slightly different requirements to be satisfied in making these orders, both depend on evidence in relation to BW's capacity to make reasonable judgments.
Medical and para medical evidence provided to the Tribunal is consistent in the assessment of BW as not having the capacity to make reasonable judgments about either his medical and health care needs, appropriate accommodation options or in relation to his large and complex estate.
With the exception of RH and BW himself, all parties agree that BW no longer has the capacity to make reasonable judgments in relation to either his lifestyle or finances.
The Tribunal accepts this evidence and finds that BW satisfies the criteria set out in s 43 of the GA Act in that he is incapable of looking after his own health and safety, and is unable to make reasonable judgments in respect of matters relating to his person.
The Tribunal further finds that BW satisfies the criteria set out in s 64 in that he is unable by reason of a mental disability to make reasonable judgments in respect to matters relating to his estate.

Wishes and best interests

The Tribunal endeavours to take into account, where possible, the views and wishes of the represented person but the overarching principle guiding the Tribunal in its decisionmaking is the best interests of the represented person.
BW made it clear at both hearings that he does not believe he needs either a guardian or an administrator but stated clearly in the first hearing, and this was supported by RH, that, if appointments are to be made, these should be independent of the family.
The decision in relation to the appointment of a guardian was made and provided to the parties at the first hearing.
In the second hearing, the Tribunal was advised by RH that BW's anger towards his daughter for bringing the applications had subsided and he now wishes for her to take on the role of decisionmaker in respect of his estate.
As set out in the GA Act, the appointment of a guardian or an administrator requires the Tribunal to find there is a need for an order and that the needs of the person cannot be met by any means less restrictive of the person's freedom of decision and action.

Need for a guardian

In respect of guardianship, there are decisions to be made about longterm accommodation for BW as well as medical treatment and health issues which may include decisions in respect of the use of medications in the form of a chemical restraint to manage his aggressive outbursts. These behaviours, if not managed, may limit his accommodation options. The Tribunal finds there is a need for a guardian to make decisions in relation to these matters.
Having found there is a need for a guardianship order, the Tribunal must consider whether there is a less restrictive alternative to making an order. In this case, there are no family members who are willing at this time to take on the role of either informal or formally appointed decisionmaker, although this may change in future. Given that, the only other option is the appointment of the Public Advocate.
The Tribunal heard from RH that if a guardian is to be appointed, BW would prefer a decisionmaker independent of the family. This is consistent with the reluctance of family to take on a decisionmaking role at this time because of the anger that may, or will, be directed toward them by BW who is a fiercely independent and private person.

Decision in respect of guardianship

The Tribunal finds that there is no less restrictive alternative to making a guardianship order and appoints OPA limited guardian for a period of two years to make decisions in respect of where and with whom BW is to live and to consent to any treatment and health care including chemical or physical restraint.
The guardianship order is made for two years as it expected in that time permanent accommodation will have been arranged and this decision making function may no longer be required. It may be also that in two years time it is appropriate for a family member to take on the role of guardian.

Need for an administrator

The Tribunal finds, based on the evidence of the treating doctors, that the represented person no longer has the capacity to execute an enduring power of attorney which is a less restrictive alternative to making an administration order.
In this case, although the details of the estate are unknown it is clear that it is a large and complex one consisting of shares, property and cash. There are two dependent children needing ongoing financial support and other family members who have historically been, at least partially, financially supported by BW.
The Tribunal heard that, without an administration order, BW, because of his limited insight into his own accommodation needs would not pay for his accommodation putting it at risk.

BW's nominated representative, RH, advised the Tribunal that BW accepts that his daughter KB is now the head of the family and says she is the appropriate person to make the decision as to how and by whom his estate should be managed.
The Tribunal heard from KB and others that the estate, although the size at this point is unknown, is expected to be in excess of $1 million. The investigation required to ascertain the size and extent of the estate is likely to be a difficult and time consuming task. The Tribunal accepts that this is a task best executed by a skilled and experienced administrator.
Perpetual Trustees, preferred by KB as administrator, is a trustee company regulated by the Trustee Companies Act 1987 (WA) which outlines the structure of fees and charges that can be made in relation to the administration of an estate.
Given the unknowns in relation to the estate and the inherent difficulties in comparing the fees charged by Perpetual Trustees and the Public Trustee, the only other option in this case for appointment as administrator, the Tribunal accepts that the fees charged by Perpetual Trustees may be higher than those charged by the Public Trustee but is guided by the information provided by RH, that BW wants his daughter to make any decisions that need to be made in relation to his estate, including appointing an alternative administrator such as Perpetual Trustees.
The Tribunal accepts that, given BW's history which includes a period of internment during the war years, he is not favourably inclined toward government departments and would not appreciate his estate being managed by the Public Trustee.
Because s 68 of the GA Act does not allow for the appointment of a trustee company such as Perpetual Trustees unless "there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company", the Tribunal must make a finding, in this case, that KB is suitable to be appointed and then, based on her written request, appoint the trustee company.
The Tribunal finds that KB is suitable to be appointed administrator and accepts her proposal that Perpetual Trustees take on the role.
Perpetual Trustees propose that they charge their advertised fee to manage the estate of BW. Having considered the nature of the estate including the size and complexity, the Tribunal considers that there is justification for remuneration as proposed, of the administrator.

Decision in respect of administration

The Tribunal appoints Perpetual Trustees plenary administrator of the estate of BW and authorises them to receive remuneration for the administration of the estate at its published rate of fees.
The order is to be reviewed in five years time.

Costs sought under s 16(4) of the GA Act

Both KB and KW are seeking an order pursuant to s 16(4) of the GA Act for costs incurred in relation to the applications for guardianship and administration to be paid out of the estate of BW. KB seeks an order in relation to costs of $3,459.21 and KW for costs of $2,662.20.
Section 16(4) of the GA Act provides that the Tribunal may order such costs relative to proceedings as it thinks fit if it is satisfied that a party has acted in the best interests of the represented person. Guardianship and administration is a nocost jurisdiction with the awarding of costs being the exception and only occurring in those cases determined by the Tribunal to involve circumstances that warrant the payment of legal costs out of the estate of the represented person.
In this case the Tribunal accepts that, given the complex and conflictual family relationships, along with the unanswered questions in relation to the size and complexity of the estate, that it was not unreasonable for KB and KW to seek legal advice in relation to the applications. On the other hand, those issues in themselves do not necessarily warrant or necessitate the need for legal representation in the preparation of the applications or throughout the hearing process, nor does it necessarily follow that the costs associated with the applications should be paid out of the estate of BW.
The GA Act allows for the possibility of an order for payment of legal costs from the estate of a represented person but the decision to make an order for costs is ultimately at the discretion of the Tribunal. The questions for the Tribunal to consider are, under what circumstances is it appropriate for a party to seek legal advice and representation, and in what circumstances should the cost of that representation be met from the estate of the represented person.
The Tribunal aims to make proceedings as accessible as possible to the parties generally making legal representation unnecessary in preparation for, or attendance at, guardianship and administration hearings because the Tribunal's inquisitorial and investigative processes are generally sufficient for it to gather adequate information for a determination to be made. If the matter is complex and additional information is required the Tribunal is able to refer an application to OPA under s 97(1)(b) of the GA Act for independent investigation and advocacy.
It has been submitted that KB "required legal advice and assistance in order to protect her father [BW] from his actions and to prepare applications and submissions to the SAT and to provide legal representation to the SAT". It is further submitted that KB "would have found it too difficult to investigate her father's affairs and instigate and follow through with these proceedings". The Tribunal accepts that KB was acting in what she saw as her father's best interests in making application to the Tribunal for guardianship and administration orders but the application forms are designed to be completed by lay persons and do not require input from, or the supervision of, a legally trained individual. In the opinion of the Tribunal, there is nothing in this case, in the applications or the submissions, to indicate complexity requiring legal assistance and nothing in the process of the hearings to indicate that an outcome consistent with the best interests of BW would not have been achieved without legal representation.
It is submitted that KW required legal advice and assistance to ensure the best interests of BW were represented in terms of his relationship with his two younger children and that a neutral party was appointed administrator. The Tribunal accepts that it is desirable that BW be supported in maintaining positive and supportive relationships with his two younger children as well as other members of his family. The Tribunal does not accept that this is dependent on KW having legal representation nor that the appointment of Perpetual Trustees, an administrator independent of the family, was dependent in any way on legal intervention.
Evidence was provided to the Tribunal that there is a level of conflict between KB, the daughter and KW, the exwife, but that in itself is not sufficient to impact on the ability of the parties to provide reasoned and considered information relevant to the proceedings without legal representation.

Decision in respect of the applications for legal costs

The Tribunal has a statutory obligation to act in the best interests of the represented person. The Tribunal is not satisfied in this case that the estate and family relationships are of sufficient complexity to warrant the need for legal representation for KB, BW's daughter and KW, BW's exwife, in relation to the hearings and finds that it is not in the best interests of BW that the legal costs incurred by his daughter and former wife are born by his estate. There was nothing about the conduct of the hearings to suggest that legal representation was necessary to ensure the best outcome for BW.
The applications by KB and KW for costs pursuant to s 16(4) of the GA Act are dismissed.

I certify that this and the preceding [93] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER