DJN and RCN
[2005] WASAT 157
•7 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT
1990 (WA)
CITATION: DJN and RCN [2005] WASAT 157
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 17 JUNE 2005
DELIVERED : 7 JULY 2005
FILE NO/S: GAA 708 of 2005
BETWEEN: DJN
Represented person
AND
RCN
Applicant
Catchwords:
Administration - Capacity -Need for administrator - Legal vacuum in decision making - Represented person's estate contributing to spousal comforts - Gifting
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 64, s 68, s 72
Result:
An administrator is appointed
Category: B
Representation:
Counsel:
Represented person : Self-represented
Applicant: Self-represented
Solicitors:
Represented person : Self-represented
Applicant: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Background
These reasons relate to an application made on 6 May 2005 for DJN by his wife RCN seeking the appointment of an administrator for DJN pursuant to s 64 of the Guardianship and Administration Act 1990 (WA) ("the Act").
The application was heard by the Tribunal on 17 June 2005 and present at the hearing was the applicant RCN, and the following children of DJN and RCN; SDN ("son"), NJN ("son"), MJN ("son") and FSLS ("daughter"). DJN was excused from attending the hearing. He now resides permanently in a nursing home.
The application
DJN is 86 years of age. He has been diagnosed with a dementing condition and his family report deterioration in his cognitive functioning over the last 12 months.
The Tribunal has before it a report from Dr JM, medical officer at the Swan Districts Hospital and it is his view that DJN is incapable of making reasonable decisions in relation to his financial affairs and incapable of executing an enduring power of attorney.
The Tribunal has also been provided with a report from DW who is a social worker with the restorative unit of the Swan Districts Hospital. She states that DJN is often confused and cannot find his way without help. She mentions that he has a supportive family who visit him regularly.
All the family members present at the hearing agree with the medical and allied health opinion that DJN is no longer capable of managing his estate.
In her evidence RCN states that she and DJN have been married for over 50 years. Prior to her husband needing to move to a nursing home they lived together in rental accommodation. RCN continues to live in that accommodation.
RCN says that her husband does not own any real property and that he has his own bank account into which is credited his superannuation income and part Centrelink pension. Other than his income and funds in the bank account DJN has no other estate. His main expense now is the nursing home fees.
RCN says that her husband's income has comprised the bulk of the household income and she is currently worse off financially because she has to maintain the full rental and associated costs of the tenancy. Because of her husband's incapacity she is unable to continue the pooling of their income to meet both of their living expenses as was done when they lived together. They are living apart only because of DJN's illness and high care needs.
The children present at the hearing state that DJN has supported their mother financially and that he has been generous both to her generally, and to her and his children and grandchildren at the time of their birthdays and at Christmas. As to the latter that could be up to $100 on each occasion.
The family support the appointment of RCN (spouse) and NJN (son) as joint administrators.
The relevant legislation
When considering administration, the Tribunal must be satisfied that the person for whom the application is made is someone for whom an administrator could be appointed (the question of capacity) and if found incapable whether the person should have an administrator appointed (the question of need). If an administrator is to be appointed the final question to be considered is who that person or persons should be.
The relevant legislation is s 4, s 64 and s 68 of the Act.
Section 64 provides:
"64.Making of administration order
(1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 ¾
(a)is 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)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint ¾
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2) Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
(3) An appointment under subsection (1) ¾
(a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b)may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given; and
(c)shall not be made where the Director-General of the department established under section 4 of the Community Services Act 1972 is empowered to act for the person in respect of whom the application is made by virtue of section 14 or 15 of that Act, unless the Director-General consents to the appointment."
The principles to be observed by the Tribunal when dealing with proceedings under the Act are set out in s 4 of the Act. In summary, they are, firstly, that every person is presumed to be capable of looking after his or her own safety and health; of making reasonable judgments in respect of matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate. Secondly, an order appointing a guardian or administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of action and decision. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.
Section 68 provides:
"68.Who may be appointed administrator
(1) An administrator (including a joint administrator) shall be ¾
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal ¾
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2) The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that ¾
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3) For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible ¾
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4) The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act."
Discussion of the evidence and findings of the tribunal
The Tribunal accepts the medical and allied health opinion and the evidence of the applicant and her children that DJN is incapable of managing his estate. He has a "mental disability" by virtue of his dementing condition and as a consequence is now unable to make reasonable decisions in respect to matters relating to all of his estate. He therefore satisfies the provisions of s 64(1)(a) of the Act.
DJN is in need of an administrator in that there is now a legal vacuum in the decision-making. There is not an informal means by which this legal vacuum can be overcome. DJN receives income to which he is entitled and it is credited to a bank account in his name. RCN does not have the formal authority to engage with the sources of her husband's income or with his bank. His funds are effectively frozen at present. In that respect DJN satisfies the requirement of s 64 (1)(b) of the Act and further his needs cannot be met less restrictively than by the appointment of an administrator (s 4(2)(c)).
In deciding the extent of the functions that the appointed administrator should have, the Tribunal is satisfied that a plenary order is appropriate and is mindful of two further matters raised at the hearing. Firstly, the Tribunal accepts that DJN has supported his wife by his standing as the principle income earner in the family unit. Of late this has been the case by virtue of his superannuation income. It is possible that RCN can now apply to Centrelink for a full pension in her own right but even so the situation for her is such that it is likely her financial circumstances will be reduced now that DJN has had to move into a nursing home. Within the ability of DJN's estate to pay, it seems reasonable to the Tribunal that the administrator should have access to his funds to provide comforts to his wife. This would assist in preserving the financial basis of the relationship that has existed between DJN and RCN for many years.
Secondly, the evidence given is that DJN has been a generous person to his wife, children and grandchildren in particular on festive occasions. There should therefore be some allowance for the administrator to apply some of DJN's funds to gifts for the family. The Tribunal has to approve such gifting pursuant to s 72(3) of the Act. An amount of $1 500 per annum has been suggested according to the number of children and grandchildren and although this is not an insignificant sum, the Tribunal is satisfied it can be sustained by DJN's estate and in any case the administrator will be required to consider the ability of the estate to pay after DJN's needs have been met.
The Tribunal has finally to apply s 68 of the Act to decide who the administrator should be. In her application RCN has proposed herself and one of her sons, NJN as joint administrators. The other children at the hearing support this proposal. Section 68 is drafted to ensure that the Public Advocate and a corporate trustee such as the Public Trustee should only be appointed if there is no one else suitable or willing to act. RCN and NJN are clearly "compatible" with DJN in the sense of their familial relationship and should be able to perform the administration functions in DJN's best interests given that his estate is not complex. There is also nothing to suggest that DJN would not have wanted his wife and son to be his administrators.
Decision of the Tribunal
It is the decision of the Tribunal that:
1.RCN and NJN be appointed joint plenary administrators of the estate of DJN with all the powers and duties conferred by the Act.
2. The plenary order includes the authority of the administrators to apply or expend moneys of DJN, whether income or capital, for the maintenance, necessaries, comforts and benefits of DJN or his spouse in such manner and to such extent as the administrators, having regard to the circumstances and the value of the estate of DJN, consider proper and reasonable.
3.The administrators are authorised to expend up to a total amount of $1 500 per annum on gifts on behalf of the represented person.
4.The order is to be reviewed by 17 June 2010.
I certify that this and the preceding 22 paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
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