CF
[2009] WASAT 145
•31 JULY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: CF [2009] WASAT 145
MEMBER: MS D DEAN (MEMBER)
HEARD: 8 MAY 2009
DELIVERED : 31 JULY 2009
FILE NO/S: GAA 700 of 2009
BETWEEN: CF
Represented Person
Catchwords:
Review of administration order Capacity of the represented person Need for an order Best interests of the represented person Public Trustee appointed limited administrator Public Advocate appointed limited administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 64, s 68, s 86, s 90(1)
State Administrative Tribunal Act 2004 (WA), s 78
Result:
Public Trustee appointed limited administrator
Public Advocate appointed limited administrator
Category: B
Representation:
Counsel:
Represented Person : Self-represented
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Public Trustee was appointed plenary administrator of the estate of CF in 2003. In 2005, CF's mother died, leaving the bulk of her estate to her sister, CF's aunt. In March 2009, the Public Trustee applied to the Tribunal for a review of the administration order on the basis that no investigation had been conducted to ascertain whether an Inheritance Act claim should have been made on CF's behalf in relation to her mother's estate.
The Tribunal found that the Public Trustee had acted in the best interests of CF in all areas of her estate except in his failure to consider whether an Inheritance Act claim should have been made on CF's behalf. The Tribunal appointed the Public Trustee limited administrator with all the powers and duties of a plenary administrator, save and except for in respect to any potential claim CF may have had in relation to the estate of her late mother.
The Tribunal found that there was an inherent conflict of interest in the Public Trustee being charged with the authority to investigate the potential Inheritance Act claim and to make decisions in relation to any compensation to the estate of CF that may result from such an investigation.
The Public Advocate was appointed limited administrator to investigate any potential Inheritance Act claim and to act as next friend in any legal proceedings that may become necessary in relation to that investigation.
Background
CF is a 47‑year‑old woman with a diagnosis of chronic schizophrenia and a long history of multiple hospital admissions. She is reported to have no friends and no contact with family other than her elderly father who continues to be very supportive but is not willing or suitable to take on the role of administrator of her estate.
In April 2003, the then Guardianship and Administration Board made a five‑year order appointing the Public Trustee plenary administrator of CF's estate. The order was reviewed in April 2008 and the appointment of the Public Trustee was confirmed for a further five years.
CF's mother died in June 2005, leaving the bulk of her estate to her sister, CF's aunt.
On 13 March 2009, the Public Trustee applied to the Tribunal for a review of the April 2008 order on the basis that an investigation was required as to whether an Inheritance Act claim should have been made in 2005 on behalf of CF. As there was a potential conflict of interest on the part of the Public Trustee, he proposed the appointment of the Public Advocate as limited administrator for the purpose of investigating whether an Inheritance Act claim should have been made.
These written reasons are provided at the request of the Public Advocate pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Relevant legislation
The administrator sought a review of the administration order pursuant to s 86 of the Guardianship and Administration Act 1990 (WA) (GA Act).
Upon review, the Tribunal may confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it (s 90(1) of the GA Act).
The principles to be observed by the Tribunal when making determinations in relation to the review of an administration order are the same as those applied in an application for an administration order, and are set out in s 4 of the GA Act.
These principles are:
•making the decision in the best interests of the person;
•every person is presumed to be capable of making reasonable judgments in respect of his or her person unless proven otherwise;
•an order appointing an administrator should only be made if the needs of the person concerned cannot be met by other means that are less restrictive of their personal freedom of decision and action;
•if an appointment is made, a plenary administrator should only be appointed if the needs of the person concerned cannot be met by a limited appointment; and
•the Tribunal should, as far as possible, ascertain the views and wishes of the person concerned.
In deciding whether to appoint an administrator and in reviewing the appointment of an administrator, the Tribunal is required, by the provisions of s 64 of the GA Act, to make a finding that the person is unable, by reason of a mental disability, to make reasonable judgments in respect to matters relating to all or any part of his or her estate and is in need of an administrator of his or her estate.
Section 3(1) of the GA Act defines a 'mental disability' as including a psychiatric condition.
Section 68(1) of the GA Act requires that, before appointing a person as an administrator, the Tribunal must be satisfied that the person:
…
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
Section 68(5) of the GA Act relevantly states:
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 an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.
The question of CF's capacity
As outlined in s 64(1)(a) of the GA Act, before appointing an administrator, the Tribunal must be satisfied that the person is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate.
When the first order for administration was made by the Tribunal on 7 April 2003, it was determined, on the evidence of CF's father, her treating psychiatrist and her mental health case worker, that she had schizophrenia and lacked the capacity to make reasonable judgments in relation to her estate. Further evidence of a similar nature was provided for the review of that order on 7 April 2008.
Reports were provided to the Tribunal for the current review hearing by CF's treating psychiatrist, Dr C, and KM, CF's case manager, both confirming the diagnosis of schizophrenia and affirming CF's lack of capacity to make reasonable judgments in relation to her financial affairs.
Based on this evidence, the Tribunal is satisfied that CF is not able, by reason of her mental disability, to make reasonable judgments in relation to her estate.
Need for an administrator
As set out in the GA Act, the appointment of an administrator requires the Tribunal to find there is a need for an order. That entails consideration of whether the needs of the person can be met by any means less restrictive of their freedom of decision and action.
In this case, CF has a longstanding mental illness and has had her estate managed by the Public Trustee since April 2003. Given the demonstrated limited capacity of CF to manage any aspect of her estate and the limited familial support provided by her elderly father, the Tribunal finds that there is no less restrictive alternative to the appointment of an administrator with the authority to make financial decisions on CF's behalf.
Who should be appointed administrator?
Section 68(1) of the GA Act requires that, before appointing a person as an administrator, the Tribunal must be satisfied that the person will act in the best interests of the person for whom the application is made.
In this case, in considering the suitability of the Public Trustee as administrator, the Tribunal must consider whether the Public Trustee has, during his appointment, acted in the best interests of CF.
Based on the evidence before it, the Tribunal is satisfied that the Public Trustee has acted in the best interests of CF in all aspects of her estate other than in the matter of the possible Inheritance Act claim. In relation to this matter, the Tribunal finds that, in failing to consider whether an Inheritance Act claim should have been made on CF's behalf, the Public Trustee failed in his duty to act in her best interests.
On the other hand, the Tribunal is satisfied that the Public Trustee has acted in CF's best interests in making this application to the Tribunal to address the issue of the failure on his part to consider an Inheritance Act claim on the death of CF's mother in 2005.
Accepting that, in every aspect other than the possible Inheritance Act claim, the Public Trustee has acted in the best interests of CF and should continue in the role of administrator of her estate, the only issue to be decided is who should act in relation to the potential Inheritance Act claim.
In line with proposals made by the Public Trustee and the Public Advocate at the oral hearing, the Tribunal indicated to parties at the conclusion of that hearing that an order appointing the Public Trustee limited administrator, with a direction to undertake all necessary investigations and to obtain independent counsel's opinion about any claim CF may have in relation to her late mother's estate, was appropriate in this case. The Tribunal indicated that the Public Trustee should provide that counsel's opinion to the Public Advocate, and that the Public Advocate should be appointed limited administrator to oversee and consent to any proposed action to be taken by the Public Trustee in relation to CF's potential claim.
Post-hearing considerations
Immediately subsequent to the hearing, and before orders had been finalised and issued, the Tribunal considered the matter further and decided that the conflict of interest inherent in the Public Trustee investigating a possible Inheritance Act claim on CF's behalf could not adequately be overcome by the appointment of the Public Advocate as limited administrator to oversee the Public Trustee's actions in this regard. The Tribunal considered that greater independence of the two limited administrators was required to overcome the conflict.
Under the terms of the order indicated at the oral hearing, the Public Advocate has no authority to countermand decisions made by the Public Trustee. The fact that the Public Trustee and the Public Advocate will consult does not deal with the lack of separate authority required to ensure there is no conflict of interest in dealing with this matter. The Public Advocate must have the authority to decide how the brief is put together, to select and brief independent counsel, to decide what funds should be allocated to brief counsel, and, importantly, to have the authority to decide whether to follow counsel's advice. This may include advice as to monies payable by the Public Trustee if there has been any loss to CF's estate as a result of inaction or oversight on the part of the Public Trustee. It is not appropriate that these be decisions for the Public Trustee to make.
Later on the day of the hearing, the Tribunal wrote to the Public Trustee and the Public Advocate advising that it had considered the matter further and inviting comment on the following orders, which it considers more appropriately deal with the conflict of interest:
1)The Public Trustee be appointed limited administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA), save and except for in relation to any potential claim the represented person has or may have had in relation to the estate of her late mother.
2)The Public Advocate is appointed limited administrator to:
i.investigate any potential claim the represented person has, or may have had, in relation to the estate of her late mother and, if necessary, to seek counsel's opinion in this regard;
ii.demand, receive and recover income of, and moneys due or that become due to, and any compensation or damages for injury to the estate or the person of, the represented person;
iii.act as next friend in any legal proceedings which may be necessary in relation to any potential claim the represented person has, or may have had, in relation to the estate of her late mother.
3)The Public Trustee to provide the Public Advocate with the funds she requires to carry out her functions outlined in this order.
The submissions
In a written submission dated 12 May 2009, the Public Advocate expressed doubts as to her suitability to act as limited administrator because of a lack of skills and expertise in conducting the proposed investigation. She expressed her view that the order indicated at the conclusion of the oral hearing was more appropriate than the proposed order. She requested further time to consider the suitability of the proposed order and to consult with the Public Trustee on the matter.
The Public Trustee, in a written submission dated 14 May 2009, advised that, although he had no objection to the proposed order, he believed the order indicated at the conclusion of the hearing dealt with the potential conflict of interest and that it was 'more appropriate in the circumstances of this matter'.
In a final submission dated 25 May 2009, the Public Advocate advised that, given her lack of expertise in assessing entitlements to potential Inheritance Act claims, it might be necessary for her to 'seek some guidance from the Public Trustee in relation to legal firms who have some expertise in this legal field'.
Decision and orders made by the Tribunal
Taking all of the evidence, including the written submissions from the Public Trustee and the Public Advocate into account, the Tribunal finds that the Public Trustee is suitable to be appointed limited administrator to make decisions in relation to CF's estate except for those decisions related to the possible Inheritance Act claim in relation to her late mother's estate.
The Tribunal finds that there is the need for an administrator, independent of the Public Trustee, with the authority to manage the proposed investigation into the Inheritance Act claim. There is no one other than the Public Advocate who is willing or suitable to take on this role. Section 68(5) of the GA Act charges the Tribunal with the authority in this regard. The Tribunal is of the view that the Public Advocate needs formally prescribed authority to be more actively involved in investigating any potential claim CF may have in relation to her mother's estate and to ensure the best possible outcome for CF.
The Tribunal is of the view that, to overcome the conflict of interest inherent in this case, there is a clear need for separation of the authorities of the two limited administrators. It is imperative that the brief to counsel, selection of counsel and the decision as to whether to follow counsel's advice are made by an authority independent of the Public Trustee, given that counsel's advice may be that the Public Trustee should compensate or make good any loss to the estate of CF.
The Tribunal made the following orders:
1.The Public Trustee be appointed limited administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA), save and except for in relation to any potential claim the represented person has or may have had in relation to the estate of her late mother.
2.The Public Advocate is appointed limited administrator to:
1)investigate any potential claim the represented person has, or may have had, in relation to the estate of her late mother and, if necessary, to seek Council's opinion in this regard;
2)demand, receive and recover income of, and moneys due or that become due to, and any compensation or damages for injury to the estate or the person of, the represented person; and
3)act as next friend in any legal proceedings which may be necessary in relation to any potential claim the represented person has, or may have had, in relation to the estate of her late mother.
3.The Public Trustee to provide the Public Advocate with the funds she requires to carry out her functions outlined in this order.
4.The order is to be reviewed by 8 May 2010.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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