CH - [2024] WASAT 31 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   CH [2024] WASAT 31
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
MR E CADE, MEMBER
MS J DE KLERK, MEMBER

HEARD:   20 MARCH 2024
DELIVERED          :   19 APRIL 2024
FILE NO/S:   GAA 4883 of 2023

CH
Represented Person
DH
Applicant

Catchwords:

Administration orders - Mental disability - Lack of capacity - Need - Suitability of applicant (Mother) to act as administrator - Represented person registered proprietor and mortgagor - Failure to cooperate with Public Trustee investigator - Turns on own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s3(1), s4, s4(2), s4(3), s4(3)(d), s4(4), s4(7), s17A, s64, s64(1)(a), s68(1), s68(3), s 70

State Administrative Tribunal Act 2004 (WA), s 58

Result:

Original decision revoked
Private administrator appointed

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	N/A

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

FS [2007] WASAT 202
Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

CH is 46 years of age, is non-verbal and has an intellectual disability.
DH is the mother of CH. She is the applicant in these proceedings.
DH receives an age pension and CH receives a disability pension. CH also earns an income from part-time work at a department store. DH and CH have a joint bank account into which their incomes are paid and from which all their expenses are met. DH manages the joint bank account. DH and CH live in the same house, as they have always done. Since 2006 they have both been registered proprietors of the property.
For the entirety of CH's adult life DH has been his informal substitute decision maker and has been accepted as such by Centrelink, the National Disability Insurance Authority (operator of the National Disability Insurance Scheme (NDIS)), and CH's treating doctors.
In 2023, DH applied for both guardianship and administration orders under the Guardianship and Administration Act 1990 (WA) (GAA Act). The reasons for that application appear to include a minor difficulty with Centrelink and an interaction with their bank.
The Centrelink difficulty arose when a vaccination certificate for CH incorrectly recorded CH's date of birth, and so could not be used by CH. Centrelink declined to correct the certificate at DH's request as she was not CH's administrator. CH was not able to communicate with Centrelink and so he could not himself request the certificate to be corrected.
In discussing the proposal with the bank, DH was advised that she should have an Enduring Power of Attorney (EPA) in order to allow her to deal with CH's estate.
DH then approached a community legal centre for advice and was advised to apply to this Tribunal for orders of administration and guardianship. DH followed this advice and her application was heard by a single member of the Tribunal on 7 June 2023 and 19 September 2023.
The single member was most concerned with the fact that CH is a registered proprietor of real property and a mortgagor of that property. She made orders on 19 September 2023 to the following effect:
(a)The Public Trustee was appointed with the powers and duties of a plenary administrator with respect to CH's estate, save and except for the appointment of DH as limited administrator with functions to control CH's Centrelink payments and wages, and to expend monies for his maintenance;
(b)The Public Trustee was directed to:
(i)investigate the circumstances in which CH became the registered proprietor and mortgagor of the property in which DH and CH live;
(ii)manage CH's interest in the property including the power to transfer the property for value, to discharge the mortgage in CH's name and to take any legal action necessary on behalf of CH in relation to his interest in the property; and
(c)The order was to be reviewed by 19 September 2025.
The application for guardianship orders was dismissed on the basis that there was no need for such orders.
DH now seeks review of those orders pursuant to s 17A of the GAA Act, although in fact her application is limited to the review of the orders made regarding administration. In effect, she seeks to be appointed administrator of CH's estate in place of the Public Trustee.
We understand that Member de Klerk takes a different view and will publish her own reasons.

CH's background

There is a lack of clarity as to CH's precise diagnosis, but we have no doubt that he has an intellectual disability.
By letter dated 17 August 2023, the Department of Communities advised that on 30 October 1981 CH was 'diagnosed with an intellectual disability and became registered for services'. We also note that some subsequent diagnoses have been noted for CH in various documents put before us but, as noted below in more detail, a precise diagnosis is difficult due to CH's difficulties with communication.
Whatever condition CH has, he has been affected by it for the entirety of his life, as evidenced by his diagnosis in 1981 when he was just three years old.
CH has three adult siblings, a brother (SH) and two sisters (JH and SY).[1] Both SH and JH were described in CH's initial application as living in the same home as DH and CH but the Public Trustee investigation report (PT report) states that JH and SY live elsewhere. It would appear that SH works at a remote location on a fly‑in/fly‑out basis and when in Perth sometimes stays with DH and CH at their home and sometimes stays with his girlfriend. When SH stays with DH and CH he contributes to the household's expenses. It would also appear that SH and his girlfriend propose to buy their own property in the not‑too-distant future.
[1] The Public Trustee investigator's report of 17 January 2024 refers to three siblings – SY, SH and JH. This is the only reference to SY.
CH's father is PH. DH and PH separated before CH was 18 years of age. CH has had no contact with PH since his parents separated. The informal financial settlement made between DH and PH in about 1996, when CH was 18 years of age, is significant to the resolution of this matter and will be discussed in detail later in these reasons.
CH has extended family with whom he has contact. His grandparents were listed as interested persons in both applications and DH's sister, KS (CH's aunt), attended the hearing to give support to DH and CH. There is no suggestion of disharmony in the family, and no‑one involved with CH has indicated that DH has been anything other than caring and supportive of CH.
CH's NDIS profile dated 5 February 2022 stated:
I lives (sic) with my mum [DH] and younger brother [SH] at home. I am the oldest of 4 siblings and I have six nieces and nephews. I have very supportive grandparents and I spend every second weekend with them. I enjoy spending time fishing with my Grandad and spending time with my Grandma, nieces and nephews.
I works (sic) on Tuesday, Wednesday and Thursday from 11 am to 3 pm at [store], unloading the trucks and sorts (sic) the merchandise, I have been working there for almost 22 years.
When I'm not working or attending group activities I am home with my Mum or Grandparents.
CH attended the hearing before the Full Tribunal on 20 March 2024 but did not speak. He sat next to DH for the entirety of the hearing and appeared settled and comfortable during the 1.5 hours of the hearing. On the few occasions when CH was asked a direct question, he communicated by making hand gestures including, most relevantly, in answer to the question who he wanted to manage his income, he pointed to DH.

Nature of s 17A proceedings

As noted, this application is brought by DH pursuant to s 17A of the GAA Act as a person who is aggrieved by the orders made by the single member on 19 September 2023.
The application is within the Tribunal's review jurisdiction, with the consequence that the full panel of three members stands in the shoes of the original decision maker and must remake the decision from the beginning. That is, this is a hearing de novo.
As indicated previously, it became apparent early in the hearing that the applicant did not seek guardianship orders in respect of CH, and that the application under s 17A of the GAA Act was made only for the purpose of reviewing the administration orders made by the single member on 19 September 2023. That is, the single member's determination that CH was not a person in need of guardianship orders was not sought to be reviewed by DH.
However, in any event, we are satisfied (as we understand Member de Klerk is satisfied) that there is no need to make guardianship orders in respect of CH, as all agencies and medical practitioners who deal with CH accept DH as his informal substitute decision maker.
We have therefore only considered whether administration orders should be made in respect of CH. In doing this we have had regard to the material before the single member, as well as to the transcript of the original hearing and to material that has been filed since that hearing. Finally, we have had regard to the evidence given at the hearing before us.
The following written material was before us:
1.Estate Information Form, undated, completed by DH (Estate Information Form);
2.Two trust managers' reports dated 25 January 2024 and 7 March 2024 by TM95 of the Public Trustee's Office (TM report 1 and TM report 2);
3.Investigation report to the Tribunal dated 16 January 2024 by Investigation Officer TM53 of the Public Trustee's Office (PT report);
4.Medical report dated 15 August 2023 from a psychiatrist Dr IB (psychiatrist report);
5.Two reports dated 7 September 2022 and 13 April 2023 from a speech pathologist, SL, (speech pathologist's report 1 and speech pathologist's report 2);
6.A medical report dated 22 August 2022 from a general practitioner Dr TC (GP report);
7.CH's NDIS plan dated on or around 5 February 2022 (NDIS plan);
8.An Individual Plan by Disability Services (WA) dated on or around 10 August 2017 (Disability Services plan). This plan was signed by CH writing his name in the signature field on the form; and
9.Transcripts of the hearing before the single member which took place on 7 June 2023 and 19 September 2023.
In considering this application, we have had regard to and applied the principles in s 4 of the GAA Act which include:
(a)that our primary concern is the best interests of the person in respect of whom orders have been made or proposed;[2]
(b)that all adult persons are presumed to be capable of looking after their own health and safety, making reasonable judgments in respect of matters relating to their person, of managing their own affairs, and of making reasonable judgements in respect of matters relating to their estate;[3]
(c)that orders should only be made and be in such terms as necessary to meet the needs, in the least restrictive way possible, of the represented person;[4] and
(d)in considering any matter related to a represented person, we must, as far as possible, seek to ascertain the views and wishes of that person.[5]
[2] GAA Act, s 4(2).
[3] GAA Act, s 4(3).
[4] GAA Act, s 4(4).
[5] GAA Act, s 4(7).
We have also applied the principles relevant to the making of administration orders which are contained in Pt 6 of the GAA Act and which are discussed in more detail below.

Issues to be determined

In our view, there are five issues which must be determined:
1.First, whether CH lacks capacity with respect to making reasonable judgments in respect of his estate;

2.Second, if CH does lack capacity, whether CH is in need of administration orders, or can his needs be met in a manner less restrictive of his freedom of decision and action;
3.Third, if there is a need for administration orders, what is the scope of the authority that should be given to the administrator;
4.Fourth, who the administrator should be; and
5.Fifth, by what date should the review of such orders be set.

We will consider each of these matters in turn.

Whether CH lacks capacity as to the administration of his estate

As noted, CH is presumed, by s 4(3)(d) of the GAA Act, to be capable of 'making reasonable judgments in respect of matters relating to his estate'. That presumption remains in place 'until the contrary is proved' to the Tribunal's satisfaction.
Further, s 64(1)(a) of the GAA Act establishes a three part test of which the Tribunal must be satisfied before it may make administration orders in relation to a person's estate:
(a)that the person in question has a mental disability;
(b)that the person is unable to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(c)that the inability in (b) is because of the mental disability described in (a).
That is, we must be satisfied that CH is unable to make reasonable judgements about his estate because of his mental disability.

Whether CH has a mental disability

The term 'mental disability' is non-exhaustively defined in s 3(1) of the GAA Act to include 'an intellectual disability, a psychiatric condition, an acquired brain injury and dementia'. The term does not require a finding of any particular recognised medical condition or disorder. It may be that while the underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, that the existence of the mental disability is beyond doubt.
An 'intellectual disability' contemplates that a person's power to understand or reason is affected by an impairment, incapacity or inability to function in a manner which is outside the normal range, or which is objectively measurable.
We are satisfied that CH does have a mental disability, being an intellectual disability, although the cause and specific type of intellectual disability is not known.
In so finding, we note that no one suggested otherwise, and the hearing proceeded on the basis that he does have such a disability,
In that regard, we place considerable weight on the fact that the predecessor to the Department of Communities accepted in 1981 that CH has 'an intellectual disability' and that he appears to have been registered for services ever since. The Individual Plan which was created in 2017 repeats the diagnosis of intellectual disability. It also states that CH 'is vulnerable to being exploited as he is not aware of monetary values and money management' and that DH assists him with these tasks.
CH's speech pathologist, SL, has seen CH 14 times in 17 months. SL noted that DH accompanied CH to all his appointments. SL had been told by her employer that CH had been diagnosed with Fragile X Syndrome and an associated intellectual disability. The diagnosis of Fragile X Syndrome does not appear to have a basis in documents put before us.
SL thought that CH was not capable of making reasonable simple financial decisions as he made rushed decisions and, as he was non‑verbal, he was unable to ask questions. For the same reason SL thought CH was not capable of making reasonable decisions in respect of complex financial matters and giving instructions in legal proceedings.
SL added in her second report that she considers that CH is 'at risk of financial exploitation due to his lack of apparent knowledge and understanding of how money works. This risk is further amplified by his inconsistent yes/no (gestural) responses (meaning he could appear to agree but means the opposite), and the fact [CH] is non-speaking.'
Because CH is non-verbal, Dr IB, the psychiatrist who assessed CH, found it difficult to diagnosis CH's condition. Dr IB only saw CH once in August 2023. In his report of 15 August 2023 Dr IB stated that DH accompanied CH to his assessment. He thought it evident that CH had an intellectual disability but was not able to administer a formal test to confirm his opinion. Dr IB had an MRI performed on CH's brain which showed 'no evidence of any classic perinatal abnormality' but did show 'some suggestion of current small vessel disease.'
Dr IB found that the most appropriate diagnosis 'has to be "autism spectrum disorder" in the absence of more extensive genetic testing.'
Dr IB made clear that his opinion that CH lacks capacity to make even simple financial decisions or to give instructions in legal proceedings was based wholly on the history provided by DH.
CH's GP, Dr TC, who has known CH since 2018, was unable to express an opinion about CH's diagnosis as the entirety of his knowledge about CH has been given to him by DH. Dr TC noted in his report of 22 August 2022 that DH accompanied CH to all his appointments. Dr TC thought, on the basis of the information provided to him by DH, that CH was not capable of making reasonable simple financial decisions. For the same reason, Dr TC thought CH was not capable of making reasonable decisions in respect of complex financial matters but was unsure if he was capable of giving instructions in legal proceedings.
Despite the absence of a formal diagnosis, and the difficulties of formal testing, we are satisfied that CH has an intellectual disability. Everyone involved with CH appears to have worked on that basis since he was very small, including the relevant department, which has provided services on that basis since 1981. Despite both doctors noting that all information about CH came to them via DH, no‑one has suggested that she was not acting honestly or in CH's best interests.
For these reasons, we are satisfied that CH has an intellectual disability, and therefore a mental disability.

Whether CH lacks capacity to make reasonable judgments in respect of his estate

The application of s 64 of the GAA Act involves both subjective and objective tests.[6] We must consider whether CH has the ability to make 'reasonable judgments' about his estate. That constitutes a subjective test, because the person's ability falls to be assessed in relation to their actual estate. At the same time, the Tribunal must also consider whether he that person has the ability to engage in the particular mental process which is required in order to make that judgment, and that test is an objective one. The Tribunal is thus required to:
… consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances.[7]
[6] FS [2007] WASAT 202 (FS) at [106] (Barker J, Ms Toohey and Mr Mansveld); Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 (Brumar) at [45] (Pritchard J).
[7] FS at [110] (Barker J, Ms Toohey and Mr Mansveld); Brumar at [45] (Pritchard J).
With respect to the subjective test, the Estate Information Form, the TM reports and the PT reports show that CH's estate consists of:
(a)income and assets comprising:
(i)disability pension payments of $990 per fortnight;
(ii)earnings from his part-time work which is about $140 per fortnight;
(ii)his superannuation fund of about $8,700; and
(iv)his 1/3 interest as tenant in common of the property he lives in with DH.
(b)expenses and liabilities comprising:
(i)contributions to the mortgage repayment;
(ii)payment to his health insurance fund;
(iii)the cost of his medications;
(iv)the cost of a regular specialist medical appointment, as he has a problem with his eyes;[8]
(v)the cost of regular dermatologist and naturopath appointments, as he has problems with his feet;
(vi)regular speech therapist appointments;
(vii)contribution to the household expenses such as home insurance and services such as water, gas and electricity;
(viii)the cost of driving him to and from his place of employment;
(ix)the cost of new shoes, as he requires new work shoes every 4 to 6 weeks; and
(x)the small gifts he makes to his nephews and nieces.
[8] CH's Individual Plan noted that CH had a cornea transplant of his left eye in 2014 and that he requires daily drops and lotion to his eye twice daily, which DH did for him.

DH's viva voce evidence at the hearing was that she manages CH's income and expenses. She explained that their incomes are paid into their joint bank account and that she pays their expenses from this bank account. She said that she records the household accounts in an exercise book as taught to her by her mother and she attempts to ensure that CH pays only his fair share of their expenses.
DH told TM95, the Public Trustee's Trust Manager, that DH and CH have a joint bank account as this was a requirement of their (bank) lender when they purchased their current home in 2006. It seems that the lender required their income to be paid into a joint account in order for them to qualify for their home loan.
She said at the hearing that, in effect, CH understands in a general sense that his income is used to pay household expenses, including that a certain portion of his income is used to pay for his share of the mortgage and another portion is used to pay for utilities and so on.
However, she said, CH would not be able to negotiate with the provider of a service or to engage with their bank, and that without assistance he would not be able to manage a bank account or to pay bills as they became due. Neither would he be able to budget in the sense of understanding the extent of his income and his liabilities, including future liabilities, so as to understand the need to (and the ability to) keep sufficient income aside for the future payment of bills not yet due (or even received).
In each case, she said that lack of ability was irrespective of his ability to communicate. That is, he lacks the mental ability to carry out those tasks as well as the ability to communicate with others about them.
While it is clear that CH's income and assets are stable and, relatively, do not require complex decisions to be made in order to preserve them, it is also clear that CH's maintenance requires the regular payment of numerous expenses, including ad hoc medical and allied health fees, ordinary household bills, and the payment of the mortgage.
In our view, the evidence, both that of medical experts as well as that of DH, shows that CH is unable to make reasonable judgments in respect of the management of his actual estate, including but not limited to the need to prepare and execute a budget to ensure that, assuming that he receives the income he is entitled to, that he keeps sufficient to ensure that his expenses, both regular and irregular, are paid as they fall due.

Whether CH's lack of capacity is due to his mental disability

Finally, we are persuaded that CH's lack of ability to make reasonable decisions in his own best interests is due to his mental disability.
There is no direct evidence of this causal link in that no‑one has said that his incapacity to make reasonable decisions is due to his mental disability, but that is the very clear inference. Indeed, there is nothing else before us that provides another possible reason for his lack of ability.
Accordingly, we are satisfied that the presumption that CH is capable of making reasonable judgments in respect of his estate is displaced and that CH, by reason of an intellectual disability, is unable to make reasonable judgments in respect of matters relating to the entirety of his estate.

Is there a 'need' for formal orders?

The effect of s 64(1) of the GAA Act is that a finding that CH, by reason of an intellectual disability, is unable to make reasonable judgments in respect of matters relating to his estate is insufficient as a basis to make administration orders. Rather, in addition to such a finding, we must be satisfied that CH is in need of an administrator of his estate.
Such a need will not exist where less formal arrangements are sufficient to ensure decisions are being made in CH's best interests.
As we have previously noted, DH has been CH's substitute decision maker since he attained adulthood until the orders of the single member made on 19 September 2023. This included assisting CH to obtain his entitlement to Centrelink payments and to receive NDIS‑funded services, as well as ensuring that his medical and maintenance expenses were met.
In that time, according to DH's evidence at the hearing before us, neither she nor CH had ever experienced any issues with Centrelink, save for the issue with CH's vaccination certificate. Similarly, she said that they have never had a difficulty dealing with CH's employer or the coordinating body for the NDIS.
DH did say that she had recently experienced a small difficulty with their bank when it refused to issue CH with a bank card (at DH's request) so that he could make small purchases when on supported social outings. The refusal was due to her not being his administrator.
DH also gave evidence that the bank had otherwise told her that she should have an EPA to act on behalf of CH. It is convenient to describe the circumstances that gave rise to that advice at this stage. She said that her other son, SH, had asked her if she would use the home which she and CH own to guarantee the purchase by SH and his girlfriend of their own home. DH said that she did not want to do this as she could not risk her home, but in order to 'keep the peace'[9] she made the inquiry with the bank which, in addition to advising that she could not do so, told her that she required an EPA to deal with CH's interest in the property.
[9] ts 16, 20 March 2024.
That brings us to the situation with respect to CH's most significant asset, his interest as tenant in common in the home he lives in.
The report of the Public Trustee investigator, dated 16 January 2024 and filed on 17 January 2024 and prepared pursuant to the orders of the single member, expressed concern about several issues in this regard. Amongst other things, the report states, in effect, that:
(i)On 19 March 1998, PH and DH transferred a property located in Cooloongup, which appears to have been the matrimonial home, to DH and CH as joint tenants. The consideration for this transfer was stated as 'gift'.
(ii)On 5 May 1998 a mortgage was registered on the Cooloongup property in the names of DH and CH;
(iii)On 22 December 2005, the Cooloongup property was transferred for a consideration of $314,000, and on 15 September 2006 DH and CH purchased a new property (home) for a consideration of $134,000 as tenants in common, with DH having a 2/3rd interest and CH having a 1/3rd interest;
(iv)The opening balance on the mortgage on 6 June 2008 was $193,589.25. Between that date and 2023, mortgage payments had been regularly received (with only four overdue payments) and most were above the minimum payment. As of 1 December 2023, the balance of the mortgage was $131,139.55;
(v)Payments to the mortgage account were, for the last 12 months, made from a bank account in DH's sole name;
(vi)An application for a redraw of $10,000 was made on 15 December 2015, and this withdraw request was signed by both DH and CH; and
(vii)The investigator reported that when he asked DH why CH had only a 1/3rd interest in the home, she 'declined to comment claiming that this investigation was an "invasion of privacy"'.
So much appears consistent with the evidence given by DH before the single member when she said on 19 September 2023:[10]
[10] ts 12 – 13, 19 September 2023.
Ma'am, we - originally when that happened was - when my husband left me, instead of paying maintenance he transferred the house that when we were living in in [address], into [CH's] name.
…
Which cost him $1500 and it was cheaper than him having to pay me maintenance for four children.
…
And that was his decision.
…
And I just presumed, because it was on that, even though we sold it and built a new house - - -
…
That it would be okay and I didn't know any different.
…
So I do apologise.
All transactions with respect to CH's interest in the Cooloongup property and the home took place during the time when DH was informally assisting CH to manage his estate. Both the Public Trustee investigator and DH gave evidence at the hearing about the following specific matters:
1.The conversion of CH's interest as joint tenant in the former matrimonial home into a 1/3rd interest as a tenant in common in a new home;
2.An apparent shortfall of $180,000 between the amount realized on the sale of the former matrimonial home and the purchase price of the new home;
3.A $10,000 re-draw on the mortgage on the new home made on 15 December 2015; and
4.The prospect that CH's interest in the new home might be used to guarantee the purchase by SH (CH's younger brother) of SH's own home.
The Public Trustee investigator gave his evidence by telephone. In his view, the issue was not whether CH needed an administrator, but who it should be. He was concerned that CH's interest in the home may be used to guarantee the home loan of SH and his girlfriend.
As to past matters, the investigator said that he had wanted to ask DH questions about why CH came to hold a 1/3rd interest as a tenant in common in the home because this appeared to be to CH's disadvantage given his joint tenancy in the Cooloongup property, although it might be because, for example, DH had made a larger contribution than CH to the purchase price.
Apart from his concern with respect to the home being used to guarantee a loan taken out by SH, the investigator held no current concerns with respect to the management of CH's estate by DH.
As to the investigator's comments as to the joint tenancy split (1/3rd vs 2/3rd), DH said that she thought she was entitled to the larger share because she had owned the Cooloongup property, the proceeds from the sale of which was used to buy the home, with PH for much longer than she had with CH.
As to the apparent shortfall and the redraw, DH explained that that she (and CH) had built a new house on the purchased property, which cost $220,000 to build. She also said that the $10,000 from the re-draw was spent on the home, predominantly to buy security screens for the home.
As to the prospects that she might use the home as security to guarantee a loan taken by SH and his girlfriend, we have already noted that her evidence was that she only enquired of the bank in that regard, in effect, to keep the peace and that she would not give a guarantee because it would risk the home. She also said that SH earned good money and did not need it.
Finally, as to her refusal to assist the Public Trustee investigator, DH said that she had not wanted to discuss the transfer as the investigator called when she was busy, and in any event, she thought that the investigator had no right to enquire into the Cooloongup property (only the home) given that CH had held his interest in the Cooloongup property for only a limited time many years ago.
The single member ordered the Public Trustee's investigation into how and why CH became joint owner of the home and one of its mortgagors. She was, rightly, concerned that CH, a person who she found lacks capacity to make even simple financial decisions in his own best interest, has a proprietary interest in the home and is legally liable for mortgage repayments neither of which he appears capable of understanding except at the most basic level.
In our view, the circumstances surrounding his ownership of the home and his position as mortgagor can properly be considered in relation to both the issue whether there is a need to make administration orders in respect of CH, as well as to whether DH is or is not suitable to be appointed as the administrator of CH's estate.
We will deal with the latter issue below. As to need, we are firmly of the view that the circumstances as to the ownership of the home and its mortgage support the view that formal administration orders should be made.
That is, while we are of the view that DH's informal management of CH's estate has been effective for CH for several decades, it is necessary to now appoint an administrator to manage his estate. One indication of this is the inability of DH to obtain a bank card to enable CH to make small purchases when on supervised social outings but more significantly there is a need to ensure that any future transactions involving the home, including any further adjustments to the mortgage, are done by a person with formal authority to do so. Such an arrangement is necessary to provide comfort to a third party dealing with CH that any decision of his is legally valid, as well as to ensure that CH's interests are properly protected.

What scope of authority should be given to the administrator?

We have previously found that CH has no ability to manage any part of his estate without assistance. Accordingly, we find that the administrator should have plenary powers in relation to CH's estate.

Who should be appointed as administrator?

Section 68(1) of the GAA Act provides that an administrator shall be, if an individual, over 18 years of age, someone who consents to be appointed to the position, someone who will act in the best interests of the represented person (i.e. CH) and someone of is 'otherwise suitable to act as the administrator …'
As to suitability, s 68(3) of the GAA Act expressly provides for three things to be taken into account:
1.The compatibility of the appointed administrator with any guardian;
2.The wishes of the represented person; and
3.Whether the proposed appointee 'will be able to perform the functions proposed to be vested in the administrator'.
DH is willing to be appointed and is over 18 years of age. The question is whether she will act in CH's best interests and is otherwise suitable to be appointed.
As to the matters in s 68(3) of the GAA Act, her appointment is clearly compatible with her informal role as CH's guardian and, as indicated above, it is consistent with CH's wishes as expressed through sign by him at the hearing.
Save for the issue of the home's ownership, and in particular its unequal shares, CH's position as one of its mortgagors, and the risk the home might be used to guarantee a loan by SH and his girlfriend, there is nothing to suggest that DH will do anything other than to act in CH's best interests. All of the other evidence before us suggests that she has looked after him, that is, applied her view as to his best interests, for his whole life. In our view, that ought to be given very considerable weight.
On its face the sale of the Cooloongup property (of which CH had a joint tenancy) and the purchase of the home in unequal shares, appears to be to the advantage of DH and the disadvantage of CH.
However, we are satisfied that the adjustment in the relative interests of DH and CH occurred because DH honestly believed that the adjustment reflected the contribution she had made to the purchase of the home, which was very much larger than the contribution that CH had made.
There was clearly a degree of naivety in her dealings with the property, including that CH understood the process sufficiently to allow him to sign the relevant paperwork. Having said that, one might have expected someone else ‑ a real estate agent, a bank officer, a settlement agent etc - to raise the question of CH's capacity at some stage.
But in our view, strict compliance with legal niceties ought not to be the relevant test in cases such as this. The facts before us are that DH and PH, both ordinary people without legal training or, indeed, the resources to access legal advice, have sought to achieve a practical solution to their marital breakdown.
Their solution was to create the gift of a joint tenancy in the Cooloongup property to CH. Absent those circumstances, it seems most unlikely that CH would ever have owned property of such value.
As his informal administrator, DH should have made decisions about CH's share in the Cooloongup property that was in his best interest. Arguably she did that by using CH's share in the Cooloongup property to be able to buy a vacant block and building a (presumably more suitable) home for the both of them.
What CH needs, as does anyone lacking capacity to make their own reasonable financial decisions, is financial security and his future financial needs mapped out and provided. That appears to have been DH's purpose in taking the action that she did.
In our view, it is also significant that there is no evidence before us that she has sought to personally gain from the transaction except, perhaps, on paper. That is, the disparity in shares in the home does not appear to have been used by her in any way to benefit herself. Rather, in the nearly 26 years since her marriage failed, she appears to have (relevantly) done no more than pay down the mortgage.
In that regard, we are satisfied that:
(a)the proceeds from the sale of the Cooloongup property were fully accounted for in its entirety, as the money from the sale of that property was used to buy the land for, and build, the home; and
(b)the $10,000 re-draw from the mortgage was used to fund improvements to the new property to the benefit of both DH and CH.
We are also satisfied that there is little, if any, risk that DH would use either her or CH's interest in the property to guarantee SH's purchase of his own home. Her evidence was that she enquired of the bank in order to, in effect, keep the peace. There is a risk that CH's siblings will apply pressure to DH to use the home for purposes inconsistent with CH's interests. However, in our view, DH's evidence that she would resist those pressures to protect the interests of herself and CH rings true.
As we have just noted, she has spent the past 26 years since her marriage break-up carefully paying down the mortgage of the Cooloongup property and the subsequent property. In doing so, she has demonstrated prudence and caution. While no risk can ever be ruled out, we think it unlikely that she would risk the financial security of herself and CH in favour of another child who, as she acknowledged, has earning capacity significantly greater than either she or CH.
As to household accounts, we accept DH's evidence that, while she does her best to ensure that CH pays only his share of their household expenses, the reality is that many of their expenses, such as food, water, gas and electricity are joint expenses which are not able to be separately allocated with any precision. We also accept that the realities of SH's circumstances, in which he is often not actually living in the house, mean that he may not be contributing a share equal to that of CH. While we accept that DH has an interest in CH continuing to pay a share of the mortgage and other expenses that they share, in our view that does not create a conflict of interest between DH and CH, and nor do these matters render DH unsuitable to be CH's administrator.
Finally, it is necessary to address DH's failure to cooperate with the Public Trustee investigator.
In our view, that failure, while not doing her credit, was to some extent explicable by her apparent fear that the Public Trustee might require the sale of the home in order to provide CH with an equal share of the sale proceeds. This in the context of her evidence that, if that was done, she believed it very unlikely that either she or CH would be able to buy another home. It was also apparent that DH regretted approaching the Tribunal over the issue of the Centrelink vaccination certificate.
Given this, we accept that her reluctance to cooperate was due to her concern about what might happen if she provided further information, given the consequences of providing information in relation to her original application. That is, we accept that her reluctance to provide information was not because she wanted to conceal information that showed her in an unfavorable light.
Indeed, once it was explained to her that appointment as CH's administrator would require the provision to the Public Trustee of annual accounts, she said that she is willing to do so and is willing to participate in any training course that may be offered to administrators.

In short, we are satisfied that DH has managed CH's estate to ensure that his share of the mortgage is paid, that he is able to live in a home he jointly owns with DH, that he has access to sufficient funds to permit him to engage in social activities, including with his cousins and his local Men's Shed and going on NDIS supported social activities, and that his many health expenses (including optional health insurance) are met.
It is true that things have not been done exactly as they should but there is a reasonable explanation for what has occurred and we are not satisfied that it is such as to render DH unsuitable to be appointed as CH's administrator.
We are therefore satisfied that DH is a suitable person to be appointed plenary administrator of CH's entire estate. We will make orders to that effect, together with an authority to make gifts totaling $1,000 per annum, given what appears to be a long‑standing custom for CH to make small gifts to his nieces and nephews.

Duration

There appears to be no reason to require the review of the administration order for a period less than the maximum allowable period of 5 years.

MEMBER DE KLERK (dissenting):

As my decision is a minority one, my findings have no effect on the outcome of this matter. However, it is necessary that my reasons for coming to a different view are articulated, in the interests of transparency.
I agree with His Honour Judge Jackson, Deputy President, and Member Cade in finding that CH is a person who lacks the capacity to make reasonable judgements in respect of all of his estate, due to an intellectual disability, and that CH needs a plenary administrator. I concur with preceding paras 1 through to 81 in that regard. In addition, I am satisfied, and I find that CH is in need of an administrator to investigate and ascertain whether CH has any equitable interest in the Current Property which is not properly reflected in the registered interests.
I concur with para 106 which sets the review period of the administration order for 5 years.
I take a different view about who the administrator should be and disagree with preceding paragraphs 82 through to 105. I am not satisfied that DH is suitable for appointment as the administrator of CH's estate for the reasons set out below.
Section 68 of the GAA Act provides that an administrator needs to be an individual of, or over, the age of 18 years or a corporate trustee[11], who has consented to act and who in the opinion of the Tribunal will act in the best interests of the person in respect of whom the application is made[12] and is otherwise suitable to act as the administrator of the estate of that person[13].
[11] GAA Act, s 68(1)(a) and (b).
[12] GAA Act, s 68(1)(c).
[13] GAA Act, s 68(1)(d).
To establish suitability, the Tribunal has to take into account, as far as possible, the compatibility of the proposed appointee with the person[14], the wishes of that person[15] and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator[16].
[14] GAA Act, s 68(3)(a).
[15] GAA Act, s 68(3)(b).
[16] GAA Act, s 68(3)(c).
Section 70 of the GAA Act provides further guidance about the definition of "best interests" in the context of estate administration:
70.Administrator to act in best interests of represented person
(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.
DH is over the age of 18 years and is willing to be appointed as CH's administrator.
I accept that DH is a devoted mother, and has been a lifelong carer and decision maker for CH. During the hearing, DH said:
He is my life. My children are my life.[17]
[17] ts 13, 20 March 2024.
I accept this sentiment. I am satisfied that CH and DH enjoy a close relationship as mother and son, and that they are compatible in that regard. I am also satisfied that CH's body language and gestures during the hearing indicated his wish that DH be appointed as his administrator. The extent of CH's understanding of this role is unclear. However, I accept, and I find, it is CH's wish that his mother continue to help him manage his money.
Although the Tribunal must ascertain the wishes of the represented person these are not conclusive of a decision of the Tribunal since the primary obligation of the Tribunal is to make decisions in CH's best interests.
In my view, there are factors which negate DH's ability to be able to act in CH's best interests for financial decision making. I am also not satisfied that DH would be able to perform the functions vested in an administrator, for the following reasons:

Best interests - ownership of a property - evidence

In 1998 CH became a joint owner together with DH of a property in Coolongup. This was confirmed in The Public Trustee Report from the investigation officer ("the investigator"):
On the 19^th of March 1998 a transfer of (sic) was enacted for the Coolongup Property from transferors (PH) and (DH) to transferees (DH) and (CH) as joint tenants. The consideration for this was listed as "gift". [18]
[18] PT Investigation Report, 16 January 2024, page 4.
During the hearing DH said that this 1998 "gift" to CH was made by her ex-husband PH as part of their divorce, and that it was an agreement whereby PH would not be required to pay maintenance.[19]
[19] ts 21, 20 March 2024.
On 22 December 2005, over 7 and a half years later, the Coolongup Property was sold.
On 15 September 2006 the Current Property was purchased:
… Unlike the Coolongup property the title for which was held as joint tenants, (DH) & (CH) are registered as tenants in common with an entitlement of "two undivided thirds" and "one undivided third" respectively.[20]
[20] Ibid.
The investigator was unable to determine the reason for the change in ownership division, partly because DH refused to comment, citing a perceived invasion of privacy. DH confirmed this during the hearing.
The investigator had hoped to understand the division of the proceeds of sale from the Coolongup Property, and the financial contributions made by DH and CH to the purchase of the Current Property. The investigation was further hampered because of the passage of time since the purchase which meant that relevant data was no longer available. Consequently, the investigator was unable to inform the Tribunal about whether or not the change in ownership from joint tenancy to tenancy in common had been equitable.
This question was explored during the hearing:
DEPUTY PRESIDENT: And your arrangement with (CH) after your husband transferred his interests was the same. You both owned the whole of the property. Because your ex-husband transferred his interest, which was a joint tenancy, to (CH). But your current arrangements are not that. Your current arrangements are that you own two thirds of the property, and he owns one-third of the property as tenants in common. Is there a reason for that?
DH: Okay, your Honour. I didn't realise it would come up as that in a mortgage. Okay. My husband and I actually owned that land and the house way before we put (CH's) name on it. So, I just thought that I was entitled to have two-thirds of the land – that is all I was putting it on was the land – and a third (to CH). But the mortgage would still be 50/50. I didn't realise that the transfer of land had to have 50/50. Otherwise, I would have left it as 50/50. Because we are 50/50.[21]
[21] ts 26, 20 March 2024.
And further:
DEPUTY PRESIDENT: You sold that. You bought another property and taken out a mortgage. And the interests are different. And there may be a reason for that. But there may not. And so, (the investigator) is just trying to understand why it is that that is the case. The mortgage is a different question again. Who has got obligations of the mortgage is a different question again. We are just dealing with the ownership of the land at the moment.
DH: I don't sort of understand. Like, I am saying, if it had to – I just presumed, because (PH) and I owned it longer, that I should have two‑thirds of the land and (CH) a quarter. Because he had only come in at the last minute.[22]
[22] ts 27, 20 March 2024.
During the hearing, the investigator spoke about a conflict of interest:
INVESTIGATOR: …As for who the administrator should be, I do believe that it needs to be an independent appointment because the nature of the property being tenants in common. It seems to be a conflicting interest, in that there are two parties which both have a share to the property and would both be required in making decisions in relation to the management of the property. I think that it is likely that that may pose an issue in the administration…
DEPUTY PRESIDENT: All right. Thank you. Can I ask you to flesh out that concern about conflicting interests. In what way – put to one side the guarantor – the prospects of being used as a guarantee. In what way would the two interests' conflict?
INVESTIGATOR: Yes, your Honour. So, looking at the previous property, that was joint tenants. And when the purchase was made for the new property, or the land which was then built upon, that changed to being tenants in common.
DEPUTY PRESIDENT: Yes.
INVESTIGATOR: So, there would have been a decision made in relation to that change in particular. And given that both of these have different implications upon the passing of one of the registered proprietors, in addition to that, the change in distribution of the ownership split from being 50/50 to one-third and two-thirds, those are both decisions which I don't believe (CH) would be able to contribute to. So, similar instances like that may present themselves going forward. I am not assuming that there is going to be any other change in property residence. But if there is in future, then there will be a need to assess whether the decisions being made are in (CH's) best interests.[23]
[23] ts 24, 20 March 2024.

Best interests - ownership of a property - findings

Based on her own evidence, DH presumed she was entitled to a larger share of the Current Property because she and her ex-husband PH, had owned the previous Coolongup Property for longer than CH, who received joint tenancy as a "gift" in 1998, as part of a divorce settlement.
Over seven and a half years later, DH chose to act on that presumption.
DH made a unilateral decision to change the nature of her and CH's previous property ownership relationship from joint tenants to tenants in common, giving herself a larger (2/3) share, which she believed she was entitled to do.
DH's actions have had a direct impact on CH's financial interests. Under the previous arrangements at the Coolongup Property, CH as a joint tenant would have automatically become owner of the Property if DH had passed away. As tenant in common CH has a smaller (1/3) share in the Current Property, and DH's 2/3 share no longer automatically reverts to him, should DH pass away.
The implications for CH's long-term future financial security are obvious in this. What occurred is the diminution of CH's estate from his prior ownership of the whole of the Coolongup Property (each joint owner in fact owning the whole rather than as expressed as 50/50) to a 1/3 interest as a tenant in common in the Current Property. CH's interest in the Coolongup Property was not preserved to him with the creation of a lesser interest in the Current Property being tenants in common and a lesser share than should be reflected by each of the joint owner's contribution to the purchase price - that is as owners jointly of the proceeds of sale and as joint mortgagors.
It is my view that when DH created for herself a 2/3 share in the Current Property, she actively preferred her own financial interests over CH. CH and DH now each own discrete shares of the Current Property and this creates a conflict of interest because when decisions about the Property need to be made, what is in CH's financial best interests might be different to what is in DH's financial best interests.

Guarantor - evidence

During the hearing, DH spoke about why she had initially applied to the tribunal seeking orders:
DH: No. I will be honest with you, your Honour.
DEPUTY PRESIDENT: Yes.
DH: My other son and his girlfriend want to get a loan for a house.
DEPUTY PRESIDENT: Yes.
DH: And he said, Mum, could you and (CH) go guarantor?
DEPUTY PRESIDENT: Right.
DH: So, I went to the bank. And they said, did I have power of attorney to act on (CH's) behalf?
DEPUTY PRESIDENT: Right.
DH: And I said no. And she said, you should have had one at that age of 16, which I was never told.[24]
[24] ts 14, 20 March 2024.
When the Tribunal expressed concern about any proposed administrator considering allowing CH to act as a guarantor, DH said:
All right. Your Honour, I only went for peace of mind for my son. But I would never have done it. Because I know that (SH) earns more than enough money. And he wouldn't need me for a guarantor.[25]
[25] ts 16, 20 March 2024.

Guarantor - findings

DH gave evidence that SH, her son, had asked her and CH to act as guarantors for him so that he and his girlfriend could obtain a home loan. DH said the bank asked whether DH had a power of attorney to act on CH's behalf. After the Tribunal expressed concern, DH said she never would have actually agreed to acting as guarantor and had gone to the bank just to give SH "peace of mind".
It is my view that this scenario provides a real-world example of precisely the type of situation that could arise with the ongoing management of the Current Property.
Using this scenario by way of example, any administrator for CH would be required to look at the request for CH to act as guarantor through the lens of "best interests" for CH, and CH only. It is difficult to contemplate any scenario where CH acting as a guarantor, and potentially risking his only substantial asset and home, could operate in his best interests.
Any administrator considering such a request would be obliged to act in CH's best interests, which includes acting as an advocate in relation to his estate & in such a way as to protect him from financial neglect, abuse or exploitation.[26] The clear lens of "best interests" that the administrator needs to look through, cannot be clouded by the financial interests of others, or by any potential competing family obligation.
[26] GAA Act, s 70(2)(a) and (d).
E M Heenan J said in the decision of the Full Court of the Supreme Court in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at paras 43 and 44:
…. the Guardianship and Administration Act is intended to 'provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs ... and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes' (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.
… The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes.
Although I accept that DH may be well intentioned, I consider the diminution of CH's estate was ill advised and that there may be in the future further competing demands on her; both the meeting of her own needs which may not always coincide with CH's interests or the needs of her other children which may adversely impact on CH's estate.

Best interests - the mortgage - evidence

DH & CH are mortgagors for the Current Property.
TM Report 1 from the Public Trustee stated that:
•in order for the initial ANZ loan application being approved (DH) needed her and (CH's) incomes to be combined.
•(CH) has NDIS, is in receipt of a Centrelink Disability Pension and works part time at a (…) Store and has so for many years.
•due to (CH) needing additional support (DH) works part time and is also in receipt of a Carers pension for (CH).
•(DH) doesn't believe that in the current market she'd be able to get a Home Loan reissued in her name solely and if forced to do so, they may both end up being homeless.
During the hearing, DH agreed that CH contributed approximately 45% toward their mortgage payments.

Best interests - the mortgage - findings

CH is currently able to contribute an approximate 45% share of the mortgage. DH said she was only able to obtain the home loan with their combined incomes. DH does not believe she would be able to secure a loan without CH, which meant that both DH and CH were at risk of homelessness if CH was removed from the mortgage.
Any administrator for CH would be obliged to make decisions about this mortgage, which may include a decision about whether or not to discharge the mortgage (as the Public Trustee were empowered to do pursuant to the order of the single member made on 19 September 2023).
This would require the administrator to look through the lens of 'best interests' for CH, and CH only. It is my view that there is an unacceptable risk that DH would not be able to separate out her own interests, due to this conflict of interest.

Otherwise suitable to act - the PT investigation - evidence

The administration order made by a single member on 19 September 2023 directed, inter alia, that the Public Trustee investigate the circumstances in which CH became the registered proprietor and mortgagor of the Current Property.
Page 4 of PT report provided stated:
The author is unable to determine the reason ownership of the (current) property is divided in one third to the RP and two thirds to (DH) as the author attempted to speak with (DH) regarding these properties however, (DH) declined to comment claiming that this investigation was an "invasion of privacy".
This was explored during the hearing:
DEPUTY PRESIDENT: All right. All right. So, is there a reason why you couldn't have said all of that to the Public Trustee?
DH: They didn't ask me that.
DEPUTY PRESIDENT: Okay. But you did say that you thought he was – his questions were an invasion of privacy.
DH: I felt that it was – I didn't think they needed to know about (the Coolongup Property). Because CH and I built the new house together. And all they really needed to know was about (the Current Property). Because originally, the house was my husband's and I. And CH was only on it for probably six to 12 months before we sold it and moved and built the new one that we could say was ours. So, I didn't feel it needed to be added. Because it was only put on just before it was sold and we built the new house.

Otherwise suitable to act - the PT Investigation - findings

Any appointed administrator must account if required by the Public Trustee.[27] This is an essential element of the accountability arrangements and necessary to give effect to the protective intent of the legislation as set out by Heenan J in the Full Board case. The terms of that compliance are set out in the GA Act and the Regulations. Although not strictly one of the factors referred to in s 68 of the GA Act the willingness and ability of any appointed administrator to provide accurate accounts with sufficient information contained in them to the Public Trustee in a timely way to enable the Public Trustee to examine those accounts is a relevant consideration in my view to the determination of the suitability of any appointee.
[27] GAA Act, s 80(1).
Perhaps more importantly the unwillingness of DH to cooperate with the Public Trustees' investigation which was ordered by the Tribunal at a hearing which she attended does not give me confidence in her willingness to comply with her future obligations to account (if required by the Public Trustee) despite her assertions that she would do so. DH asserted privacy considerations however she was aware of the order of the Tribunal and the role lawfully undertaken by the Public Trustee in this regard.

Otherwise suitable to act - the Estate Information Form - evidence

The administration order made by a single member on 19 September 2023 appointed DH as limited administrator to perform a number of functions.
On 6 October 2023 a representative from Public Trustee wrote to DH and included the following:
Further to your appointment as administrator by the State Administrative Tribunal, you are required by the Guardianship and Administration Regulations 2005, to complete and return Estate Information Form (Form A) to the Public Trustee by 6/11/23.
As a limited administrator, your reporting responsibilities are limited to the income and expenditure, and assets and liabilities within the scope of the terms of your appointment as set out in the Administration Order. If you have any questions about the Form A or require assistance in understanding your responsibilities as a limited administrator, please contact the Private Administrators Support Team [.][28]
[28] Hearing Book, page 70.
A reminder letter was sent on 7 November 2023, which said the Estate Information Form was due for lodgement on 24 November 2023.
An Estate Information Form (undated) signed by DH was received by the PT on 8 December 2023. Some sections of the form had been left blank, for example question 7 (regarding furniture) and question 8 (personal effects). Some sections had been partially completed, for example question 12 (money loaned on mortgage) which stated the relevant bank but did not provide any further details. DH wrote that CH received $155 weekly from employment and $990 fortnightly from a disability support pension.
Question 28 requested an estimate of annual income and expenditure, and provided boxes into which monetary amounts could be added. This question was answered as follows:
I CANNOT GIVE AN ANNUAL INCOME AMOUNT AS IT DIFFERS FROM YEAR TO YEAR AND ON WHAT (CH's) NEEDS ARE.
MEDICATION, EYE SPECIALIST EVERY 6 MONTHS (MELVILLE (sic) CLOTHES SHOES, WORK UNIFORM SHOES FOR EVERY 4-6 WEEKS. FUEL & VEHICLE TO TAKE (CH) TO WORK WEEKLY LIVING, HOUSE PAYMENT, PART PAYMENT WATER, ELECTRICITY GAS. HOUSE INSURANCE. MEN SHED (sic) NATRAPATH (sic) (FOR FOOT PROBLEM). SPEECH THERAPY. DIVERSITY SOUTH (DAY OUT). MONDAYS DERMATOLOGIST FOR HIS FEET. PYCHIATRIST (sic) FOR DIAGNOSIS TRUST $600 INCOME PARTICULARS PENSION, WAGES.
When asked about record keeping and reporting obligations to the Public Trustee, DH said:
I just keep a record, the old-fashioned way, in a book like my mum taught me. And I just keep a book with all this in.[29]
[29] ts 32, 20 March 2024.

Otherwise suitable to act - the Estate Information Form - findings

The delay in DH's submission of the Estate Information Form and the paucity of information contained on it, in circumstances where DH on her own evidence keeps a physical book with relevant information, further erodes my confidence in DH's willingness and ability to comply.

Otherwise suitable to act - information obtained at hearing - income and expenditure - evidence

During the hearing, DH confirmed CH's income details and in terms of CH's expenditure said that she would 'usually charge him between $150 for the board'[30] which she later confirmed as CH's contribution to the mortgage. DH accepted that CH's contribution was about 45 percent. DH confirmed that CH paid his share of the remaining household expenses, and that SH paid his share of expenses 'when he is home for the week, if he is home'.[31]
[30] ts 30, 20 March 2024.
[31] ts 35, 20 March 2024
The Tribunal enquired about the mortgage interest rate currently being paid by DH and CH:
DEPUTY PRESIDENT: - - - … (The PT) report also says that the interest rate that you are paying is more than nine per cent, which seems to us as quite high. Have you spoken to the bank about that? Is there a reason why it is so high?
DH: I have just – we have just renewed it – I think it was 2017 – to a better interest rate. I have never had a problem with the bank. So, I have just left it at that.[32]
[32] ts 22, 20 March 2024.

Otherwise suitable to act - information obtained at hearing – income and expenditure findings

During the hearing DH provided some further details about CH's income and expenditure which in my view raised further questions about whether decisions were being made in CH's best interests. For example, whether the current interest rate on the mortgage and the current contributions to the household made by SH were suitable arrangements. In my view this illustrates a need for transparency in relation to CH's financial affairs.

Otherwise suitable to act – information obtained at hearing – capacity evidence

The Tribunal sought DH's views about her understanding of CH's decision-making capacity for financial matters. DH appeared to accept that CH lacked the ability to independently manage aspects of his finances, such as financial planning and paying bills when they fell due.[33] On further exploration:
MEMBER DE KLERK: I am just hoping to understand a little bit more, (DH), what your view is on (CH's) understanding of financial matters. So, it seems that you have indicated that you have always had to be there to support (CH) with his financial decision-making. I am just hoping to understand what your view is. Do you think he has an understanding of financial matters? Do you discuss his finances with him?
DH: Yes. I do.
MEMBER DE KLERK: If you are able to talk to us a bit more about that.
DH: Like, when we went to the bank to sign for the loan and everything, as long as you explain it to him in a child's version – like, I said to him, we are going to buy a block of land and we are going to build a house that we picked out ourselves and everything. I said you are going to help us pay for the house. So, we need to sign to say that we are going to pay that money back for the house that we are going to live in and all that. He understands it when you say it that way. Whereas, if we did it in another version, he wouldn't understand. So, if you explain it to him in a kiddie version, clearly and shorter, he does understand. But sometimes he does do a yes when he means a no. Because you have got to give him time to think what you have asked him. But yes. Otherwise, he is pretty good.[34]
[33] ts 38, 20 March 2024.
[34] ts 37, 20 March 2024.
And further:
MEMBER DE KLERK: So, just another question, (DH). So, when – so, (CH) obviously has signed up to – you and (CH) are both named on the mortgage.
DH: Yes.
MEMBER DE KLERK: Are you able to tell us what you – how much you think he understands about the implications of that and what his responsibilities are?
DH: I think he understands that he has built the house, and we are living in it. And he does pay for it. So, I know he understands that 100 per cent. Because I say to him, if we don't pay for it, we won't have a house to live in. So, I explain it to him in that way. And he understands. So, as far as he is concerned, that is his and my house.
MEMBER DE KLERK MS: Okay. So, is it your view then that he was actually able to sign that mortgage contract, that he was capable of it?
DH: I think so.
This position is consistent with the reasons DH gave in her application seeking this review:
I FEEL THAT ALL WAS NOT READ AND CONSIDERED CORRECTLY ON THE DAY. ALL BECAUSE OF A LATE DIAGNOSIS IN HIS LIFE. WHEN TO US HE IS (CH) IS NORMAL WITHOUT THE SPEECH …[35]
[35] Hearing Book, page 6.

Otherwise suitable to act – information obtained at hearing – capacity findings

DH's position during the hearing was that CH was capable of entering into a mortgage contract (despite the weight of medical and allied health evidence that suggests otherwise). This position is consistent with the reasons DH gave in her written application seeking this review.
The Tribunal has made a finding that CH, by reason of an intellectual disability is unable to make reasonable judgements in respect of matters relating to the entirety of his estate. Consequently, CH is entirely reliant on others to make financial decisions for him. If DH does not accept or understand that CH is incapable and therefore entirely reliant on others - largely herself to make those decisions, then it is my view that she would be unable to perform the functions of an administrator. There is also the risk that DH would not make decisions in CH's best interests due to a mistaken belief that CH is capable of making financial decisions, including entering into further legal contracts.

Conclusion

For all the above reasons I am not satisfied and I find that DH is not suitable to act as administrator for CH because I am not satisfied DH will act in CH's best interests and I also find that DH is otherwise not suitable to act as administrator.
There being no other person who is willing and suitable to act as administrator, the Public Trustee should have been appointed as the plenary administrator of CH's estate. Plenary administration would allow the Public Trustee to investigate and ascertain whether CH has any equitable interest in the Current Property which is not properly reflected in the registered interests.

Tribunal orders:

The Tribunal declares that the represented person, CH, is:
(a)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)in need of an administrator of his estate.

The Tribunal orders:
1.The administration order dated 19 September 2023 is revoked and substituted with an order in the following terms:
(a)DH is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
(b)The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.

2.The administration order is to be reviewed by 19 March 2029.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PN
Associate to Deputy President Judge Jackson
19 APRIL 2024