DB
[2007] WASAT 243
•17 SEPTEMBER 2007
DB [2007] WASAT 243
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 243 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1039/2007 | 6 JULY 2007 10 AUGUST 2007 | |
| Coram: | MS F CHILD (MEMBER) | 17/09/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Sole administrator appointed | ||
| B | |||
| PDF Version |
| Parties: | DB |
Catchwords: | Guardianship and Administration Review of administration order on application by the Public Trustee Relationship between Joint Administrators broken down Need for an administrator Suitable appointment |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 64(1)(a), s 64(1)(b), s 70, s 75, s 80, s 80(1), s 80(4), s 80(5), s 86, s 87, s 90 |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : DB [2007] WASAT 243 MEMBER : MS F CHILD (MEMBER) HEARD : 6 JULY 2007
- 10 AUGUST 2007
- GAA 1040 of 2007
- Represented Person
Catchwords:
Guardianship and Administration Review of administration order on application by the Public Trustee Relationship between Joint Administrators broken down Need for an administrator Suitable appointment
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 64(1)(a), s 64(1)(b), s 70, s 75, s 80, s 80(1), s 80(4), s 80(5), s 86, s 87, s 90
Result:
Sole administrator appointed
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Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 On review of an administration order by the State Administrative Tribunal instigated by the Public Trustee because of concerns about the operation of the order, the Tribunal revoked the order and reappointed one of the former joint administrators as the sole administrator.
2 The joint administrators were the brother and sister of a woman with an intellectual disability. The Tribunal decided that the woman still needed an administrator of her estate but as the evidence of both the brother and the sister was that their relationship had completely broken down, a joint appointment was not appropriate. The Tribunal appointed the sister as the sole administrator as it accepted her evidence that she had undertaken the day-to-day administration of the estate with little involvement from her brother since their appointment in 1998.
3 The Tribunal was satisfied that the sister was able to perform the functions of the administrator and that she would act in the best interests of the represented person.
4 The Tribunal did not accept the proposal of the brother that the administration of the estate remain as it was; that is, his sister undertake the management of the estate and that he remain as joint administrator playing a monitoring role; reviewing the accounts his sister submitted to the Public Trustee for examination. The Tribunal determined that the proposal was not consistent with the legislation which requires joint administrators to act concurrently and provides that the Public Trustee monitor the private administration of estates through the examination of accounts submitted.
Background
5 These reasons relate to a review of an administration order made in respect of DB (the represented person) on an application by the Public Trustee. The administration order under review is dated 8 August 2003. That order confirmed an administration order made in 1998 by the Guardianship and Administration Board (Board) which appointed the represented person's brother (the brother) and sister (the sister) as her joint limited administrators.
6 Most of the jurisdiction and functions exercised by the former Board under the Guardianship and Administration Act 1990 (WA) (GA Act) were assumed by the State Administrative Tribunal from 2005. The
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- functions under s 80 of the GA Act, to examine the accounts of private administrators, passed to the Public Trustee from that time.
The Applications
7 The Public Trustee applies for leave and for review of the order pursuant to s 86 and s 87 of the GA Act. The application for review of the order is sought as the Public Trustee has lost confidence that the brother is suitable to remain as joint administrator of the estate of the represented person.
8 The applications came on for hearing on 6 July 2007, however, did not proceed on that day as the brother of the represented person, who appeared by telephone, asked for an adjournment stating that he had not received notice of the hearing sent by the Tribunal on 12 June 2007. The applications were adjourned to 10 August 2007 and the brother was invited to inspect the Public Trustee’s application and the other documents during the adjournment. Leave was granted to the Public Trustee to bring the application for review and the hearing of the review proceeded on 10 August 2007.
9 A representative of the Public Trustee (the Public Trustee), the represented person and the joint administrators attended the review hearing.
Relevant legislation and principles to be observed
10 The principles to be observed by the Tribunal when dealing with proceedings under the GA Act are set out in s 4. Those principles provide that in dealing with any proceeding commenced under the GA Act the primary concern of the Tribunal is the best interests of the represented person. The principles include the presumption of capacity of persons coming before the Tribunal, the principle of least restriction possible in any orders made and the obligation to seek to ascertain as far as possible the wishes of the represented person.
11 On review of any order made under the GA Act, the Tribunal may confirm, amend or revoke an order or appoint a new administrator (see s 90).
12 To make an appointment of an administrator originally or on review, the Tribunal must be satisfied that the person remains a person for whom such an order can be made; that is, that she is unable, by reason of a mental disability, of making reasonable judgments in respect of matters
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- relating to all or any part of her estate (s 64(1)(a)) and that she is in need of an administrator of her estate (s 64(1)(b)).
13 Relevant to this matter where joint administrators are appointed the GA Act requires that they act unanimously. Section 75 provides:
14 "Where joint administrators are appointed -
(a) an administrator shall not perform any function without the concurrence of the other administrator or administrators; and
(b) if the administrators are not unanimous as to the performance of any function, any administrator may apply to the State Administrative Tribunal for directions under section 74."
15 In respect of the obligation on administrators to account for their management of the estate of the represented person the GA Act provides at s 80(1) that:
"An administrator shall submit accounts to the Public Trustee as required by, or prescribed by regulations, except so far as the administrator is exempted from doing so by the Public Trustee."
Evidence and Findings
16 The reports on the file from the original application and review of the order in 2003 now before the Tribunal indicate that the represented person has an intellectual disability. Dr C provided a report in 1998 which notes a diagnosis of "Williams Syndrome (Congenital mental retardation)". He notes that she is impaired in her capacity to make reasonable judgements about her financial affairs and that she has little idea of the value of money.
17 More recent medical evidence before the Tribunal is from Dr S who states that he is “not sure” regarding the capacity of the represented person to make reasonable decisions about her financial affairs. He states she can make a limited contribution to the hearing. For the review there is also a report from the supervisor of the group home who states that the represented person:
"… is often confused but with a little prompting can relay her wants well. … She needs to be under constant supervision while out as she has no concept of stranger danger … [the represented
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- person] will spend any money given to her on sweets despite being encouraged to buy 'other things'. She has no concept of budgeting relying on staff to give her an 'allowance' on outings. She is unable to handle accounts and living expenses. [The represented person] is completely unable to handle her finances in my opinion, except small amounts for treats eg $5 ."
18 No issue is taken by any party that the represented person is unable to manage her financial affairs herself. Based on all of the evidence, the Tribunal makes the finding that the represented person remains a person for whom an administration order may be made.
19 There is also no challenge to the need for an administrator to be appointed. The estate of the represented person includes funds received from the deceased estate of her late mother, now invested, and a bank account with some savings into which her pension is paid. The accounts submitted by the sister to the Public Trustee for the period 7 September 2005 to 6 September 2006 (Account Number 8) shows that the represented person has assets of $18 745, that her income from all sources for the period was $19 522 and her expenditure $21 784. As the represented person has an estate to be managed and she is unable to deal with any aspect of it herself without supervision and support she is in need of an administrator of her estate.
20 The real issue for consideration on review of the order in light of the application brought by the Public Trustee is the appropriate appointment in the role of administrator.
21 In a report filed by the Public Trustee with the application, the basis of the review application is said to be the failure of the brother to "co-lodge" Account Number 8. The report notes that efforts had been made by both the Public Trustee and the other administrator to have the brother lodge forms under his signature but that he has failed to do so.
22 A further report was sought in the adjournment from the Public Trustee regarding the history of accounts submitted by the administrators. In that report the Public Trustee provides a chronology of events regarding the lodgement of accounts. That report refers to the relationship between the joint administrators as strained. The Public Trustee's correspondence with the joint administrators is also before the Tribunal. Allegations that the brother had made threats of violence are also referred to in a letter to the Tribunal and were referred to in the hearing.
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23 In oral submissions, the Public Trustee states that attempts have been made by the Public Trustee to have the brother sign a completed set of accounts, being Account Number 8, but that he has not done so. The Public Trustee also notes that the other administrator (the sister) has co-operated with the Public Trustee and has filed accounts under her signature. The Public Trustee also refers in oral submissions to a "stand-off" relationship between the joint administrators which had come to the attention of the Public Trustee through a "client feedback form" submitted to the Public Trustee by the brother. The Public Trustee submits that this "may cloud decisions" made for the represented person as the administrators are not acting jointly. It is noted that the client feedback form was not before the Tribunal at the hearing, only being received on 13 August 2007.
24 The brother's evidence at the hearing is that he and his sister had a “falling out” in August 2005 and that they had not communicated effectively since. He states his sister has his email address and that he has spoken on occasion to her husband about the needs of the represented person. He considers the falling out to be significant to the administration of the represented person’s affairs. (T:10)
25 In relation to the day-to-day management of the affairs of the represented person he states he assumes that his sister is doing the right thing. (T:11) The position of the brother is understood to be that the accommodation provider plays some role in relation to the management of the funds of the represented person or in reviewing the financial affairs of the represented person. The brother states he is in monthly contact with the supervisor of the group home to monitor the situation and that the supervisor would contact him if anything was going wrong. (T:12)
26 In relation to the allegation of the Public Trustee that he has not complied with the obligation on administrators to account he states he has signed all sets of accounts except the last one and that this has been acceptable up until now. He states he had difficulty in signing the last set of accounts due to distance and his working hours.
27 He proposes that the administration continue as before with his sister managing the day-to-day administration of the estate and that he sign a copy of the accounts sent to him (by the Tribunal), and in this way continue to monitor his sister’s management of the finances of the represented person.
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28 It is understood that the brother takes the position that he should continue in this monitoring role as he was appointed as an executor, with his sister, of the will of their late mother in which the represented person was the beneficiary of the estate.
29 The sister's evidence is that the accommodation provider does not play any role in relation to the represented person’s estate. She states that since the order was made she has done all the banking, made the investments and paid the accounts for the represented person and that her brother’s involvement has been to sign the accounts prepared by her at the end of each financial return period.
30 The sister gives some detail of the financial arrangements in place for the represented person; her investment, the management of her day-to-day expenses, and the budget for personal and recreational expenditure including holidays. She notes that she reports all expenditure from the estate to the Public Trustee.
31 She agrees that the relationship with her brother has broken down, in her view, irretrievably. She states that communication has been difficult. She expresses concern that she is acting outside the parameters of the (joint) appointment and takes issue with the perception that the other administrator has a role to monitor her management of the estate. She proposes that she continue in the role of administrator on her own on the basis that it is she who has managed the estate since the order was first made. She states that she has done this honestly and in the best interests of the represented person.
32 The evidence from both the administrators is that their relationship has broken down. For this reason alone the joint appointment cannot continue since the administrators cannot act concurrently as required by s 75 of the GA Act. Each of the administrators has the authority (to be exercised with the concurrence of the other), the responsibility and ultimately the liability for the management of the estate (see s 80(4)). One of the joint administrators is not the agent of the other.
33 The question of whether administrators have complied with the obligation to account is a matter for the Public Trustee. In this case the Public Trustee asserts that the brother has failed to account, in respect of Account No 8. The sets of accounts reporting on this estate submitted to the former Board and to the Public Trustee have been allowed and are conclusive unless it can be shown that the administrator acted dishonestly, in bad faith or without reasonable cause. (s 80(5))
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34 I accept the evidence of the sister that she manages the estate and prepares the accounts and the brother merely signs them without a complete understanding of the estate or its management. This is not disputed by the brother. He states he signed sets of accounts prepared by his sister in past years. His submission that this should continue because it has been acceptable in the past is not persuasive. The inability of the brother to file Account Number 8 only highlights the underlying difficulty of his position. Because he is not involved in the management of and does not have knowledge of the estate he is not in a position to file accounts reporting on the management of the estate with the accompanying statutory declaration that the accounts contain "a true and correct record of the income, expenditure, assets and liabilities of the estate". He cannot simply rely on his sister in this regard.
35 His proposal that he monitor the management of the estate by his sister, either in the best interests of the represented person or as also suggested by him (T:29) to protect his future interest in any deceased estate of the represented person is not the role of an administrator. It is the role of the Public Trustee performing functions under s 80 of the GA Act to supervise the performance of private administrators through the examination of accounts submitted. It is the role of an administrator to administer the estate in the best interests of the represented person without conflict.
36 Even if it was known by the former Board (or by the Public Trustee since 2005) that the brother merely countersigned the accounts, the application is now made by the Public Trustee on the basis that it has lost confidence in the brother as the administrator of the estate of the represented person. It is the role of the Tribunal to determine applications made under the GA Act with the best interests of the represented person as the primary concern. It is in the best interests of the represented person that an administration order be made with which the administrator can comply and which meets the accountability obligations on the administrator established in the legislation.
Appropriate order
37 For the reasons above, the order appointing joint administrators is revoked and another administration order substituted for it. The options for the appointment of an administrator of the estate are that either one of the former joint administrators or the Public Trustee is appointed.
38 The appointment of the sister is the appropriate appointment. She is familiar with the estate and the needs of the represented person since she
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- has been managing the estate since the original appointment in 1998. She has shown she is able to perform the functions of the administrator and is able to comply with the requirements of the Public Trustee that she account for the management of the represented person’s estate. She impresses as someone who is committed to the best interests of the represented person (see generally the obligations under s 70). Her appointment is consistent with the scheme of the GA Act which promotes the involvement of family members in the management of the affairs of represented persons.
39 If the represented person was to express a wish in this regard it is likely that she would wish that her brother and sister be involved in her affairs since she is, according to the report of the primary carer, devoted to both of them. It is apparent from the hearing that conflict between them is distressing to her. Since it is not possible that the joint appointment continue for the reasons given, the appointment in the best interests of the represented person is that her sister be appointed sole administrator.
40 The previous order was a limited order but its terms extended to all aspects of the estate of the represented person. The report from the supervisor of the group home states that the represented person requires assistance with all aspects of her estate including guidance about her personal spending. It is appropriate that the order is a plenary one. Because of the scope of the previous order there will be no perceptible change for the represented person.
41 The represented person's condition is lifelong and so the appropriate order is for the maximum period of 5 years.
Order
1. Leave to apply be granted.
2. The order be revoked and the sister of the represented person be appointed sole plenary administrator.
3. This order is to be reviewed by 10 August 2012
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- I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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