CJS
[2016] WASAT 42
•5 APRIL 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: CJS [2016] WASAT 42
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 23 MARCH 2016
DELIVERED : 5 APRIL 2016
FILE NO/S: GAA 257 of 2016
GAA 443 of 2016
GAA 572 of 2016
MATTER: CJS
Represented Person
Catchwords:
Guardianship and administration Administration Enduring power of attorney Events or occurrences when substitute attorneys begin to act must be stated by donor otherwise enduring power of attorney unsafe to operate Need for an administrator Administration order made Enduring power of attorney revoked Family member to live in the represented person's property at less than a market rental must be authorised by the Tribunal Gifting must be authorised by the Tribunal
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(2)(d), s 7, s 64(1)(a), s 64(1)(b), s 68, s 71(5), s 107, s 109
Result:
Administration order made
Enduring power of attorney revoked
Summary of Tribunal's decision:
CJS was an 87yearold woman who had been diagnosed with dementia. She lived in a nursing home.
CJS had four children: two daughters, LP and JT, and two sons, PS and GS.
On 21 May 2010, CJS made an enduring power of attorney appointing LP and JT as joint attorneys and PS and GS as joint substitute attorneys. CJS did not nominate the events or occurrences when the substitute attorneys could begin to act as attorneys.
PS alleged that LP had abused her power as attorney and that she had poor management practices as the manager of CJS' estate.
PS lived in CJS's property at less than market rent. He was in dispute with LP about how the rent was calculated and the extent to which he was in arrears.
The Tribunal was satisfied on the evidence that because of her advanced dementia, CJS was not able to make reasonable judgments about her estate.
CJS was in need of someone with formal authority to manage and make decisions regarding her financial affairs.
The enduring power of attorney was not considered the appropriate instrument to use for this purpose for two reasons. Firstly, JT no longer wished to act as attorney, and secondly, CJS did not elect the events or circumstances upon which the substitute attorneys could begin to act. This, in the Tribunal's view, would make the instrument unsafe to use even if LP and JT had wished to continue as attorneys, because it could not be known with any certainty when the substitute attorneys could, and should, take over.
If the enduring power of attorney could be used, then an administration order was the only means by which the estate of CJS could be formally managed.
The Tribunal did not accept the assertion of PS that LP had abused her power as attorney or that her management practices were poor.
Given the history of the dispute about rental payments, the Tribunal could not be confident that on her own, LP could resolve the matter. However, the Tribunal was persuaded by the evidence of GS that, together with LP, the tenancy dispute would be dealt with.
LP and GS were appointed joint plenary administrators which was consistent with the wishes of CJS as expressed in the enduring power of attorney.
The enduring power of attorney was revoked.
The administrators were authorised to continue to allow PS to live in CJS's property at less than market rental, having regard to the financial needs of CJS.
The administrators were further authorised to expend up to a total amount of $1,000 on gifts on behalf of CJS.
Category: B
Representation:
Counsel:
Represented Person : Nil
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
CJS is an 87‑year‑old woman who has been diagnosed with dementia. She lives in a nursing home.
CJS has four children: two daughters, LP and JT, and two sons, PS and GS.
On 21 May 2010, CJS made an enduring power of attorney (EPA) appointing LP and JT as joint attorneys and PS and GS as joint substitute attorneys. CJS did not nominate the events or occurrences when the substitute attorneys could begin to act as attorneys.
On 19 January 2016, LP made an application under s 109(2)(b) of the Guardianship and Administration Act 1990 (WA) (GA Act). On 22 January 2016, the Tribunal accepted the application as one made under s 109(2)(a) of the GA Act.
Section 109(2)(a) of the GA Act allows for a person with a proper interest in the matter to apply for an order referred to in s 109(1)(c) of the GA Act.
Section 109(1)(c) of the GA Act provides for an order to be made revoking or varying the terms of an EPA, appointing a substitute attorney, or confirming that a person appointed to be the substitute attorney of an EPA has become the attorney.
In her application, LP seeks to vary the EPA such that she and GS are appointed joint attorneys and JT as substitute attorney.
On 5 February 2016, PS made two applications, one for the appointment of an administrator of the estate of CJS and the other, under s 109(1)(c) of the GA Act, to vary the EPA such that PS, GS and JT be appointed as joint attorneys and LP removed as attorney.
The applications were heard on 23 March 2016. In attendance were LP, JT, PS, GS, and other family members.
The decision was reserved and delivered orally on 5 April 2016.
Except for minor amendments mainly for the purposes of style and grammar, including the anonymising of names as required by the GA Act, the decision and reasons are those that were handed down on 5 April 2016.
The capacity of CJS
In the making of an administration order, the Tribunal must first be satisfied that CJS is unable, by reason of a mental disability, to make reasonable judgments in respect to matters relating to all or any part of her estate: s 64(1)(a) of the GA Act.
'Mental disability' is defined to include dementia: s 3 of the GA Act.
CJS is presumed to be capable of making reasonable judgments in respect of matters relating to her estate until the contrary is proved to the satisfaction of the Tribunal: s 4(3)(d) of the GA Act.
The Tribunal has before it two medical reports concerning the question of CJS' capacity.
The first report is from CJS' general practitioner who states a diagnosis of advanced Alzheimer's type dementia which has resulted in severe cognitive impairment.
The second report is from a geriatrician who assesses CJS as having moderate to severe cognitive impairment with a likely diagnosis of Alzheimer's disease. It is the opinion of the geriatrician that CJS does not have capacity to make lifestyle or financial decisions.
The medical assessments are consistent with the report of the social worker from the nursing home in which CJS lives. CJS is reported to be confused; not oriented to time, place or person; unable to attend to calculations and recall items; and unable to follow instructions.
The case presented by PS
PS submits that LP has abused her position as attorney for CJS. He says that he had a concern about LP at the time the EPA was made that she was overcommitting herself in taking on the role of attorney.
PS gave examples of what he says are poor management practices of LP.
PS states that he is CJS' nominee for Centrelink purposes. At a particular time, Centrelink required the completion of a form providing details of CJS' property so that her pension could be properly assessed. LP was late in providing the information and as a consequence, PS states he was unable to lodge the form in time and CJS' pension was suspended; it was subsequently reinstated without loss to CJS' estate.
Another example concerns CJS' liability to income tax. PS states that because of rental income received by CJS, she was required to lodge an income tax return. PS says that LP disagreed that an income tax return was required and he had to eventually have JT, as joint attorney, sign the return.
Further examples given by PS of LP's alleged poor management of CJS' financial affairs include LP's failure to pay the 2015 property rates on time, leading to the issuing of a debt recovery notice, and an instance of LP making a payment to an incorrect account when using internet banking.
PS alleges that LP does not have an appropriate bookkeeping system in place to manage CJS' financial affairs.
PS states that he and his family rent the property owned by CJS.
PS accepts that he cannot be sole administrator of CJS' estate, given the current dispute with the attorneys about the tenancy of CJS' property and the rent to be paid (tenancy dispute) (see below).
However, he submits that if he were appointed jointly with GS, the conflict of interest about the tenancy dispute could be safely managed.
PS states that he does not support the joint appointment of LP and GS as administrators but would support the appointment of GS alone.
In the alternative, PS states he would support the appointment of the Public Trustee as administrator.
The case presented by LP
LP admits that she was late in paying the 2015 property rates, and on one occasion, paid an amount to an incorrect account whilst using internet banking. She submits these are isolated examples, are the result of simple human error, and are not representative of her management of CJS' finances.
LP submits she is the appropriate person to continue managing CJS' estate and would propose to do so jointly with GS. She submits that together with GS, the tenancy dispute can be settled.
LP states that CJS' estate consists of the property currently tenanted by PS, a term deposit of approximately $30,000 and a working bank account of about $8,000.
The case presented by JT
JT states that due to health reasons, she wishes to be discharged from her role as joint attorney for CJS under the EPA.
JT does not propose who should be appointed administrator of the estate of CJS.
The case presented by GS
GS is of the view that LP has satisfactorily managed the CJS' estate despite the fact that the relationship with PS has been difficult.
GS consents to his appointment as joint administrator with LP but does not consent to an appointment with PS. He also does not consent to be appointed as sole administrator.
GS believes he and LP can appropriately deal with the tenancy dispute.
The tenancy dispute
The evidence is that PS has been living in CJS' property since about March 2014.
PS says this was the wish of CJS and she would continue to approve of it.
PS states that he pays $250 per week in rent but says that in a family meeting held in January 2016, he proposed that from 1 July 2015 the rental be calculated on the basis of $1,000 per month.
LP states that the original rental figure of $250 per week was based on the financial needs of CJS and is not market rental. The rental figure was also set to assist PS and his family. It is the current intention that the rental figure will not change unless the financial needs of CJS increase.
LP states that PS is currently about $2,500 in rental arrears. In addition, because PS does not forward water usage accounts, she is unsure how much in arrears the water account might be.
LP does not agree that the rent should be set at a monthly figure as proposed by PS. She does not accept, as is argued by PS, that the rental arrears have arisen because of a difference in calculating how the rent should be charged, because she says that the rental arrears commenced in December 2014 which is prior to the proposal that the rent be charged on a monthly basis.
LP states her preference that the rental be paid by way of a formal rental agreement with PS and managed by a real estate agent.
LP states that formalising the tenancy was the cause of the original dispute with PS when rental of CJS' property was first considered.
The decision of the Tribunal
I am satisfied that CJS is a person for whom an administration order can be made. She has been diagnosed with dementia, likely the result of Alzheimer's disease. The general practitioner has diagnosed CJS with advanced dementia, and the geriatrician assesses her as now having moderate to severe cognitive impairment.
I accept the evidence of the medical practitioners.
The social worker from the nursing home in which CJS lives states in her report that CJS presents as confused and disoriented, and unable to attend to calculations, recall items or follow instructions.
I am satisfied on the evidence that CJS has a mental disability, namely, the dementia.
CJS' estate comprises the property in which PS lives, bank funds, and the income from her pension and rent from her property.
It is common ground that because of her mental disability, CJS is now unable to make reasonable judgments concerning all of her particular estate.
CJS is in need of someone with formal authority to manage and make decisions regarding her financial affairs.
The EPA is not the appropriate instrument to use for this purpose for two reasons. Firstly, JT no longer wishes to act as attorney, and as she is jointly appointed with LP, if JT no longer acts as attorney then LP cannot act alone under the instrument. Secondly, CJS did not elect the events or circumstances upon which the substitute attorneys could begin to act. This, in my view, would make the instrument unsafe to use even if LP and JT wished to continue as attorneys, because it could not be known with any certainty when the substitute attorneys could and should take over.
If the EPA cannot be used then an administration order is the only means by which the estate of CJS can be formally managed.
For the reasons already given, I am unable to consider varying the EPA as proposed by PS and LP in their applications under s 109 of the GA Act.
Given the extent of CJS' decision‑making disability, I am satisfied that it is in her best interests for the administrator to be given plenary powers.
The remaining question is who should be appointed administrator. There is not agreement amongst the children of CJS as to who that should be.
The submission of PS is that he and GS be appointed joint administrators and, in the alternative, that the Public Trustee be appointed.
GS, however, will only consent to a joint appointment with LP, a proposal which LP supports.
I am guided by s 68 of the GA Act.
My primary concern must be the best interests of CJS and I should also seek to ascertain her views and wishes in considering my decision: s 4(2) and s 4(7) of the GA Act.
I accept that by making the EPA in 2010, CJS expressed a wish that her children manage her financial affairs when she was no longer able to do so and that LP (and JT) play a primary role. There is no evidence before the Tribunal that CJS ever expressed a preference for the Public Trustee to become involved in her affairs.
There is no cogent evidence before me that LP has abused her position as attorney, as alleged by PS. I am satisfied that the management concerns raised by PS are minor in nature and do not, on the evidence, represent any pattern.
Apart from the tenancy dispute, the estate of CJS is relatively small and easy to manage.
The tenancy dispute is a concern and needs to be settled so that the financial affairs of CJS can be made certain and stable.
Given the history of the tenancy dispute, I cannot be confident that, on her own, LP could resolve the matter. However, I am persuaded by the evidence of GS that, together with LP, the tenancy dispute will be dealt with.
I am satisfied that as joint administrators, LP and GS will act in the best interests of CJS and that their appointment is consistent with her wish as earlier expressed through the 2010 EPA.
I appoint LP and GS as joint plenary administrators.
I revoke the EPA for the reasons already given.
I accept that it has been the intention of the family not to charge PS market rent and that I should give the administrators the flexibility to continue with that practice in accordance with the financial needs of CJS.
I further authorise the administrators to expend up to a total amount of $1,000 per annum on gifts on behalf of CJS: s 71(5) of the GA Act.
Orders
The Tribunal orders that:
1.[LP] of [address suppressed] and GS of [address suppressed] are appointed joint plenary administrators of the estate of [CJS] with all the powers and duties conferred by the Act.
2.The administrators are authorised to allow [PS] to live in [CJS]'s property at [address suppressed] for less than market rental having regards to the needs of [CJS] and the circumstances and value of her estate.
3.The administrators are authorised to expend up to a total of $1,000 per annum on gifts on behalf of [CJS].
4.The enduring power of attorney dated 21 May 2010 by which [CJS] appointed [LP] and [JT] as joint attorneys and [PS] and [GS] as joint substitute attorneys, is revoked.
5.The Tribunal will commence a review of this order by 5 April 2021.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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