| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : CMA and CRA [2011] WASAT 204 MEMBER : MS F CHILD (MEMBER) HEARD : 4 MAY 2011 AND 19 JULY 2011 DELIVERED : 19 DECEMBER 2011 FILE NO/S : GAA 852 of 2011 BETWEEN : CMA Applicant
AND
CRA
Represented Person
Catchwords: Guardianship and administration - Review of administration order - Application for directions - Represented person with diagnosed mental illness - Application for authority to make payments of funds of the represented person to his former spouse Represented person not obliged by law to make the payments Authority of the Tribunal required Order made authorising the payments Legislation: Guardianship and Administration Act 1990 (WA), s 64(1)(a), s 64(1)(b), s 68, s 71(5), s 72(2), s 72(3), s 74, s 90
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Result: Appointment of Public Trustee confirmed
Authority given to make additional payments Category: B
Representation: Counsel:
Applicant : N/A
Represented Person : Ms Hensler
Solicitors:
Applicant : N/A
Represented Person : Public Trustee
Case(s) referred to in decision(s):
CRA [2005] WASAT 336
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Applications were made to the Tribunal for review of an administration order and for directions to the administrator of the estate to authorise payments to the former spouse of the represented person. 2 The application for review of the order was filed by three of the children of the represented person seeking their appointment as administrators of his estate. The application was brought because of the children's dissatisfaction with aspects of the management of the represented person's estate by the Public Trustee, including the refusal to pay money to their mother without formal authority. In the course of the proceedings, the children withdrew their applications for their appointment and supported the continued appointment of the Public Trustee. 3 The Public Trustee submitted, and the Tribunal agreed, that the Public Trustee could not, without the authority of the Tribunal, make the payments proposed. As the payments were in addition to an amount agreed as part of a property settlement between the represented person and his former spouse made some years before, the represented person was not legally obliged to pay them. As such, the payments were precluded by provisions of the Guardianship and Administration Act 1990 (WA) without additional authority being granted to the Public Trustee by the Tribunal. 4 As the represented person and the Public Trustee both supported the payments being made to the former spouse, the Tribunal authorised them, as well as additional amounts proposed to be paid to the children of the represented person.
Background 5 The represented person is a man of 77 years. Originally from the United Kingdom, he has lived in Western Australia for many years. He is separated from his spouse, L, but she continues to play a supportive role, living close to him and seeing him regularly. They have six adult children who have varying degrees of involvement in his life. 6 Two of the children of the represented person, S and W, were first appointed the joint plenary administrators of the represented person's estate in June 2004. In August 2005, the Tribunal reviewed the order at the request of the represented person and reappointed the administrators. (Page 4)
7 The Public Trustee was appointed the plenary administrator of the estate following a further review of the order in December 2006. At the time of the order, the appointment of the Public Trustee was supported by most family members because of escalating friction among the family members, apparently caused by the challenging behaviours of the represented person. 8 The order appointing the Public Trustee was due for periodic review in December 2011, but leave was granted to the children of the represented person to seek early review of the orders. 9 The represented person's estate comprises income received from three trusts, including a testamentary trust of his late mother. The trustees, who are based in the United Kingdom (UK trustees), pay to the former spouse of the represented person a payment of £800 per month pursuant to a property settlement agreement made between the represented person and his former spouse on their separation many years ago. The agreement is that the former spouse receive 'a third of the income of the represented person or an amount of £800 per month' (interim agreement). This agreement was entered into by the represented person prior to the appointment of administrators of his estate.
The applications 10 Applications for the appointment of a guardian and for review of an administration order which appoints the Public Trustee as administrator of the estate of CA (represented person) were filed with the Tribunal by three of his adult children, C, W and M. In their application for review of the administration order, they express dissatisfaction with the management of some of the represented person's affairs by the Public Trustee, including the decision by the Public Trustee not to advance funds to repair the represented person's daughter's car and what is considered delay in dealing with a request by the former spouse of the represented person to increase an allowance paid to her from funds of the represented person. The increase is in addition to the amount paid pursuant to the interim agreement. The children later withdrew their application for the appointment of a guardian for their father and withdrew their proposal for their appointment as the administrators of his estate, supporting the continued appointment of the Public Trustee. 11 An application pursuant to s 74 of the Guardianship and Administration Act 1990 (WA) (GA Act), for directions to an administrator was made by the Public Trustee as administrator of the estate of the represented person. The application was originally made (Page 5)
in the name of the represented person but it is agreed that the administrator of his estate should make such an application. 12 The primary issue raised before the Tribunal is the proposal that the Public Trustee make payments to the former wife of the represented person from the additional funds received on his behalf from the UK trustees. 13 On review of any order, the Tribunal must consider whether the represented person remains a person for whom an order can be made pursuant to s 64(1)(a) of the GA Act, whether he is in need of an administrator of his estate (s 64(1)(b) of the Act) and if so, who should be appointed in that role (s 68 of the Act). 14 On review, an order may be confirmed, amended or revoked, or revoked and another order substituted for it (s 90 of the GA Act). The GA Act empowers the Tribunal to appoint an administrator of an estate and to make orders for the proper administration of the estate of the represented person (s 72(2) of the GA Act). Section 71(5) of the GA Act authorises the Tribunal to take a liberal view of the best interests of the represented person and to empower an administrator to make a payment of a charitable, benevolent or ex gratia nature or a payment of a debt or demand that the represented person is not obliged by law to pay. Such a payment is otherwise precluded by s 72(3) of the GA Act which states that an administrator shall not, without the authority of the Tribunal, make such a payment.
Is the represented person a person for whom an administration order may be made? 15 The evidence on review is that the represented person remains a person for whom an administration order may be made as he is unable, by reason of a mental disability, to make reasonable judgments about his estate. 16 In his report dated 22 March 2011, Dr T, a geriatrician, reports that the represented person is, in his opinion, not capable of making financial decisions, given his history of bipolar affective disorder. Dr T notes a 30 year history of the illness, which is described as a 'static condition' and 'wellcontrolled', but an 'ongoing diagnosis'. Dr T's opinion is that the represented person is incapable of making reasonable decisions in relation to his financial affairs. Dr T states that the represented person is 'unable to budget. Tends to overspend due to bipolar [disorder diagnosis]' under the Public Trustee for finances. Dr T reports that the represented person (Page 6)
is 'incapable' of making an enduring power of attorney (EPA). Although the represented person considers he is able to make decisions about his own financial affairs, this is not supported by the family, the Public Trustee as his administrator or the medical evidence before the Tribunal for this review. The children report that the represented person selfmedicates with medication he obtains from a doctor friend and he is not currently treated for his diagnosed psychiatric condition. The general practitioner who is said to be his treating doctor reports that she had only seen him once. 17 The Tribunal finds that the represented person remains a person for whom an administration order may be made because his longstanding mental illness means he is unable to make reasonable decisions about his financial affairs.
Is there a need for an administrator of the estate? 18 Although the represented person's estate in Western Australia consists only of distributions of income from the UK trustees and funds now under management by the Public Trustee, there remains a need for an administrator of the estate of the represented person. The history documented in the Tribunal's files and in reasons for decision of the Tribunal published as CRA [2005] WASAT 336 includes reported overspending and significant credit card debts incurred by the represented person without an appreciation by him of the consequences of that behaviour. Reference to this history was made by some family members in the course of the review hearings. 19 In addition to the need to manage and control the spending of the represented person, the Public Trustee also acts on his behalf in relation to a long-running dispute regarding the interests of the represented person in a property which has now been sold. The defendant in those proceedings is his daughter, C, and the other five children and his former spouse are named as third parties to the proceedings. There remains a need for an administrator to deal with those proceedings on the represented person's behalf. 20 Although family members have attempted to assist him in the past, this reportedly caused tensions between the represented person and family members, and more widely in the family itself. The represented person does not accept that his decision-making is impaired and that his manner can be demanding and bullying. Dr T considers that the represented person is incapable of giving an EPA. When his children acted as the administrators of his estate, the represented person's behaviour reportedly (Page 7)
put great strain on relationships. In all these circumstances and the ongoing need for formal management of the expenditure of the represented person, I find there are no less restrictive alternatives to the appointment of an administrator of his estate.
Who should be appointed administrator? the wishes of the represented person period of the order 21 The children of the represented person withdrew their proposal for their appointment as his administrator and submitted that it would be beneficial for the Public Trustee to continue as the administrator. The represented person supports the appointment of his children but also reported at the first hearing that the appointed trust officer had 'done a wonderful job'. The represented person notes that the trust officer's hands 'are tied by very strict conditions on what he is allowed to do'. Despite this, the represented person said that he and the trust officer had 'got along fine' (T:38 39, 10.05.11). 22 In the circumstances of the represented person, he remains in need of an independent administrator of his estate. The appointment of the Public Trustee is confirmed. Given the longstanding nature of the represented person's impairment, the order is made for the maximum period of five years.
Other orders 23 As noted, the primary issue raised in the applications is the proposal that additional funds transferred to the Public Trustee from the UK trustees be paid to the estranged spouse of the represented person. 24 In mid 2010, the UK trustees agreed to pay to the former spouse of the represented person a further payment of £100 per month from the funds of the represented person in addition to the £800 per month originally agreed as part of the property settlement she had reached with the represented person recorded as the 'interim agreement'. The UK Trustees advise the Public Trustee that the payment is over and above the obligation which arises from the interim agreement. Further, they say that they are not able to the pay the additional funds to the spouse directly. The original £800 per month is paid directly to her, as this had been part of the agreement made by the represented person prior to the appointment of an administrator of his estate. Since that appointment with the declaration of incapacity of the represented person, the UK trustees are unable to accept instructions from the represented person. Correspondence before the Tribunal from the UK trustees shows (Page 8)
that they consider that the Public Trustee could simply pass on the additional payment to the spouse, apparently not appreciating the legislative scheme of the GA Act which prevents this. This is because, once the payments are made to the Public Trustee, they fall into the estate administered by the Public Trustee subject to the provisions of the GA Act, including s 72(3) referred to above. The spouse and the children contend that the additional payment reflects the spouse's share of the overall increase in the income of the represented person and should therefore be paid to her as of right. 25 Counsel for the Public Trustee submits that the interpretation by the UK trustees of the interim agreement made between the spouse and the represented person is that the legal obligation is for payment of £800 per month and that there is no obligation to pay the additional £100. Counsel submits, and the Tribunal accepts, that the represented person's income has not increased by £300 per month, which would be required if this proposition was to be accepted. Written and oral submissions from the spouse and some of the children of the represented person reveal a very strong sense of injustice that, on the current interpretation of the interim agreement, the spouse does not have an entitlement to the additional funds. This issue is not able to be resolved by the Tribunal. Despite the explanations given by Counsel for the Public Trustee and the Tribunal in the hearings regarding this issue, the later correspondence from the spouse and some of the children shows that the explanations are not accepted and there is an expectation that the interim agreement can be revisited by the Tribunal. The strength of feeling about the matter reinforces the need for independent administrator of the estate. 26 I accept that, based on the interpretation of the terms of the agreement between the represented person and his former spouse, there is no legal obligation to make the additional payment and therefore the authority of the Tribunal is required for those funds to be passed on to the former spouse by the Public Trustee. 27 The represented person, his children and the Public Trustee all support the additional payment to the former spouse from the funds of the represented person. The represented person argued strongly in the hearing that 'a man should support his wife'. Given the strength of feeling about the matter and the support given to the represented person by family members, I consider that it is in the best interests of the represented person that the additional funds be paid. (Page 9)
28 The Tribunal makes the orders proposed by the Public Trustee to pay a further amount of $2,000 per year to the spouse, which is in addition to monies paid directly by the UK trustees. Additional gifting to the children of the represented person is also authorised.
Orders 29 On review of an administration order dated 6 December 2006 heard by Member Child on 10 May 2011 and 19 July 2011, it is ordered that: 1. Leave is granted to C, W and M to withdraw their application dated 17 March 2011 to be appointed administrators of the estate of the represented person. 2. C, W and M's application dated 17 March 2011 to be appointed administrators of the estate of the represented person is withdrawn. 3. C, W and M's application to withdraw their application dated 17 March 2011 for review of the administration order dated 6 December 2006 is refused. 4. The Public Trustee of 565 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA). 5. In addition to: (a) the £800 paid each month by the UK trustees to the former spouse of the represented person under an interim agreement dated 11 July 2002 made between the represented person and the former spouse, as amended; and (b) the amount of $1,500 per year to be paid on gifts on behalf of the represented person, authorised by orders made on 6 December 2006, the administrator is authorised: (i) with effect from 1 July 2010, to pay up to a total further amount of $2,000 per year (Page 10)
to the former spouse on behalf of the represented person; and (ii) to pay up to an amount of $2000 per year for maintenance on vehicles used by members of the represented person's family to transport the represented person. 6. This order is to be reviewed by 6 December 2016. |