CW - [2020] WASAT 132

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   CW [2020] WASAT 132
MEMBER:   MR J MANSVELD, MEMBER
HEARD:   14 SEPTEMBER 2020
DELIVERED          :   23 OCTOBER 2020
PUBLISHED           :   28 OCTOBER 2020
FILE NO/S:   GAA 2246 of 2020

KW
Applicant
CW
Represented Person

Catchwords:

Guardianship and administration - Administration - Estate planning - Proposed severance of joint tenancy - Administrator's application for directions - Best interests of represented person - Liberal view of best interests - Conserving the property and financial resources of represented person - Directions declined

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 70, s 71(5), s 74(1), s 111A
Trustees Act 1962 (WA), s 92
Wills Act 1970 (WA), s 40

Result:

Directions declined

Category: B

Representation:

Counsel:

Applicant	:	Mr N Lloyd
Represented Person	:	N/A

Solicitors:

Applicant	:	George Lawyers
Represented Person	:	N/A

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

Charlton v Barber [2003] NSWSC 745
Public Trustee v Blackwood [1998] 8 Tas SR 256
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Re The Palermo Unit Trust; Ex Parte Philip Milton Rundell (As Trustee for Various Trusts) [2014] WASC 69

REASONS FOR DECISION OF THE TRIBUNAL:

The decision in this matter was delivered on 23 October 2020. The following reasons have been edited from the transcript to anonymise the names of the parties and to correct minor errors and omissions.

Introduction

CW is 68 years of age. She has an established diagnosis of dementia likely Alzheimer's disease. That diagnosis was made some years ago.
CW has a spouse, KW. They have been married for 48 years.
CW and KW have one surviving child, a son. Their daughter died in 2017.
CW recently became a resident of a nursing home.
In September 2019, KW made an application for the appointment of an administrator of CW's estate pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
On 19 November 2019, KW was appointed plenary administrator of CW's estate with an authority to gift up to $500 a year from CW's funds (administration order). An enduring power of attorney that CW had executed on 18 March 2016 was revoked.
In June 2020, KW made an application under s 74(1) of the GA Act for directions on how to use the powers vested in him under the administration order.
By way of orders made on 6 August 2020, KW was required to file a submission setting out in detail the directions he was seeking and how directions sought would be in the best interests of CW (submission).
The application was heard on 14 September 2020 and the decision reserved.
The hearing was attended by KW and his legal representative.

CW's estate

In information filed with the Public Trustee, KW in his role as administrator sets out CW's estate as follows:
•joint tenant (with KW) in the family home (property)
•joint bank account (with KW) $25,733 (bank funds)
•superannuation $225,000 (superannuation)
•income from the age…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CW

Details

AGLC: CW [2020] WASAT 132
Case: [2020] WASAT 132
Decision Date: 28 OCTOBER 2020

CaseChat Overview and Summary

This matter involved an application for directions in relation to the administration of the estate of CW. The application was made by KW, who is CW’s enduring power of attorney and administrator of her estate. The central dispute was whether KW’s proposed restructure of the estate was in the best interests of CW. The case was heard by the Supreme Court of Western Australia.

The court was required to determine whether KW’s proposed restructuring of CW’s estate, which included severing a joint tenancy, was in her best interests. The key issue was whether the proposed restructuring would conserve CW’s property and financial resources, as required by the Guardianship and Administration Act 1990 (WA), while also considering a liberal view of CW’s best interests under section 71(5) of the Act.

The court examined the primary objectives of the legislation, which are to protect and assist individuals with impaired faculties to ensure their financial affairs and welfare are not jeopardised. It considered the need to conserve CW’s resources and property for her own needs and the importance of scrutinising transactions to ensure they are justifiable and provident. The court found that KW’s proposed restructuring did not align with these objectives, particularly given CW’s need for ongoing nursing home fees and the liability for the residential aged care subsidy. The court emphasised the importance of a conservative approach in giving advice, as highlighted by Hennan J in Re The Full Board. The court declined to make the directions proposed by KW, as it was not convinced that the restructuring was in CW’s best interests.

The court’s final order was to decline the directions proposed by KW, emphasising the need to conserve CW’s property and financial resources for her ongoing needs and to ensure her nursing home fees and the residential aged care subsidy liability were maintained.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MR J

As Hennan J said in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43][44] (Re The Full Board)… From this, and an examination of the entire Act [GA 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. In the main, these will be accomplished by conserving the resources and property of the person under administration for use to his or her own advantage or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration. This position is moderated to an extent by the application of s 71(5) of the GA Act which permits the Tribunal to take a liberal view of the best interests of the protected person when considering estate matters. The future financial requirements of CW must be directed to the need to maintain the security of her nursing home accommodation for the rest of her life. To achieve this her nursing home fees must continue to be paid and provision made for payment of the RAD liability. Currently she is being charged a daily rate on the unpaid RAD. As already mentioned the proposed restructure is designed for the possibility that KW predeceases CW attendant with the wish of KW in those circumstances that the property be bequeathed to his and CW's son and the children of their deceased daughter. In considering the submissions of KW in the overall context of CW's needs I am not minded to make the directions proposed by KW for the following reasons: Notwithstanding the Tribunal's discretion to take a liberal view of CW's best interests, any advice given should be conservative given the overall protective nature of the jurisdiction articulated by Hennan J in Re The Full Board. This position is supported for example by the way advice is given by Courts to trustees seeking directions under s 92 of the Trustees Act 1962 (WA). Re The Palermo Unit Trust; Ex Parte Philip Milton Rundell (As Trustee for Various Trusts) [2014] WASC 69 at [29].