DMB
[2005] WASAT 280
•21 OCTOBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: DMB [2005] WASAT 280
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 3 AUGUST 2005
DELIVERED : 21 OCTOBER 2005
FILE NO/S: GAA 244 of 2005
BETWEEN: DMB
Represented Person
Catchwords:
Guardianship and administration – Periodic review of administration order - Need for an administrator - Who should be administrator - Contribution to property expenses in lieu of rent
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(c), s 64, s 64(1)(a), s 68, s 68(3), s 84, s 90
Result:
An administrator is appointed
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : Self-represented
Case(s) referred to in decision(s):
Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA)
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
This was a periodic review of an administration order made for a person with a mental illness. The order, made in 2003 by the former Guardianship and Administration Board, had appointed the Public Trustee as the person's plenary administrator.
The person was found to continue to be in need of an administrator. However, it was found that the person's fiancé was more appropriate to be the administrator and therefore the order appointing the Public Trustee was revoked and the fiancé appointed.
The person and her fiancé lived in accommodation owned by the fiancé. It was considered proper that the person contribute to the property expenses, in lieu of rent or board, that she would otherwise have to pay were she living in other accommodation.
Background
These reasons relate to a review of an order for administration made by the former Guardianship and Administration Board for DMB on 14 January 2003. The order confirmed an earlier order made on 10 September 2001 appointing the Public Trustee as plenary administrator for DMB.
This review of the order for administration, is a periodic review and is being heard pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) (the Act).
The jurisdiction of the Guardianship and Administration Board (the Board) was absorbed by the State Administrative Tribunal (the Tribunal) from 24 January 2005, and the Tribunal now exercises the functions under the Act formerly exercised by the Board.
The review was first heard on 23 May 2005 and adjourned to 3 August 2005 as DMB and her fiancé, RC, were unable to attend due to ill health.
At the hearing on 3 August 2005, which was held by video conference, the following people attended: DMB, RC, DWB (father of DMB), LAB (mother of DMB), Dr SC, medical officer in psychiatry and JB, case manager for DMB.
Decision
I have decided to revoke the order of 14 January 2003 and instead appoint RC as DMB's plenary administrator. The order includes the direction to the administrator that he apply funds from the estate of DMB to half of the property and utility expenses (excluding improvements) of the house in which he and DMB live and which he owns. This application of funds is in lieu of rent or board to which DMB would otherwise be reasonably liable.
I will provide the reasons for my decision by firstly stating the legislation relevant to the review of the administration order, then by discussing the evidence about DMB's capacity to make financial decisions for herself and finally by discussing the need for an administrator including who might be most suitable to be appointed her administrator.
The relevant legislation
Section 84 of the Act provides that when an order for administration or guardianship is made, it must specify a period not exceeding five years within which the order shall be reviewed. In the case of DMB, the Board made an order on 14 January 2003 appointing the Public Trustee as her plenary administrator for a period of two years. That order is the subject of this periodic review.
Section 90 of the Act provides the Tribunal with certain powers that can be exercised on review of an order. The order can be confirmed, amended, revoked, or revoked and another order substituted for it. As regards administration, the appointment of any administrator can be revoked and a new or additional administrator appointed.
The legislation, as it refers to administration generally, is contained in s 3, 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."
Section 3 provides that a "mental disability" includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
The principles to be observed when dealing with proceedings under the Act are set out in s 4 of the Act. As they relate to administration, they are, firstly, that every person is presumed to be capable of making reasonable judgments in respect of matters relating to his or her estate until the contrary is proved. Secondly, an order appointing an 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, an order appointing a limited administrator shall be in terms that impose the least restrictions possible in the circumstances on the person's freedom of action and decision. Fourthly, the views and wishes of the person concerned should be ascertained as far as possible. Finally, the primary concern shall be the best interests of the person for whom the application has been made.
Finally, s 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."
Is DMB a person for whom an administration order could continue to be made?
Written reports were received from Dr SC and JB, and both gave oral evidence. Dr SC, as a medical officer in psychiatry, states in her report that DMB suffers from paranoid schizophrenia and mild mental retardation. She states further:
"Whenever [DMB] has been without her partner, she has been unable to cope and has ended up in hospital. She lacks the organisational ability to cope with everyday demands of life and quickly becomes psychotic when not reminded to take her medication. The prognosis is poor in the long‑term. She would be unable to function independently."
In her oral evidence, Dr SC confirms the opinion in her report that DMB would have great difficulty in being able to look after her own finances.
JB, as DMB's mental health case manager, states in her report that RC manages household budgeting and the payment of bills. She states that DMB has difficulty following instructions and is unable to pay her own bills. In her oral evidence JB agrees with the opinion of Dr SC.
It is common ground that DMB is in need of significant assistance in the management of her finances and is incapable of making reasonable financial decisions on her own.
I am satisfied on the available evidence that DMB has an ongoing mental disability in the form of a chronic psychiatric condition and mild intellectual impairment, and because of that mental disability is unable to make reasonable judgements in respect of all of her financial affairs. I therefore find that DMB continues to satisfy the provisions of s 64(1)(a) of the Act and remains a person for whom an administrator could be appointed.
Is DMB in ongoing need of an administrator?
When a person is found to be incapable, pursuant to s 64(1)(a) of the Act, the question that next has to be considered is whether he or she "is in need of an administrator of his estate" (s 64(1)(b)). Such need is read subject to s 4(2)(c) of the Act, which provides:
" …
A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action."
The meanings of "is in need of an administrator of his estate" and "needs of the person" were considered by the Full Board in Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) at 320-332. The Board took the view that the terms involve different tests. Where the provisions of s 64(1)(a) are met, it would usually follow that the person "is in need of an administrator" because of the absence of formal legal authority to make decisions for the person. However, this will not always be the case, for example, in situations where the person has no assets that require administration or, if the assets are managed under some other legal authority.
In regard to the availability of an alternative legal authority, Dr SC was asked whether, in her view, DMB is capable of executing an Enduring Power of Attorney. In her oral evidence, Dr SC says that in her opinion DMB does have the ability to choose someone to manage her financial affairs and would also understand that she has the right to revoke the instrument. When asked whether DMB understands the nature of her estate, Dr SC says that she thinks she does. Dr SC goes on to say that she does not believe an Enduring Power of Attorney is an appropriate means by which DMB's finances should be managed because of the potential temporary nature of the instrument.
I am not persuaded by Dr SC's opinion that DMB has an adequate understanding of her estate and the form, an effect of an Enduring Power of Attorney. The evidence stated earlier in these reasons, gives strong weight to the view that DMB has such a limited understanding of her finances that she is unlikely to know the relationship between her income and her expenditure obligations and commitments. It is therefore doubtful whether she would sufficiently appreciate the extent of the authority she would be giving to an attorney.
By virtue of the finding that DMB cannot make reasonable judgments about the management of her income, a "legal vacuum" exists in the decision‑making, and in that regard I further find that DMB continues to be "in need of an administrator … " pursuant to s 64(1)(b) of the Act.
The test, as it relates the "needs of the person", is of a broader nature. In MM (supra) at 330:
" … [T]he phrase 'needs of the person' …involves a different test. The 'needs' there described are of wide import and encompass all the wants and necessaries of the person. Thus there is a two step process. The Board must first determine whether there is a need for a guardian in s 43(1)(c) (or a need for an administrator in s 64(1)(b)) and then move on to the issue whether notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person's freedom of decision and action."
No evidence was provided of the availability of any "informal arrangements" for the effective management of DMB's finances. Given my finding that DMB does not currently have the capacity to execute an Enduring Power of Attorney, there remains no less restrictive alternative to the continuing appointment of an administrator of DMB's estate.
What functions should the administrator have?
The current order for DMB, made by the Board on 14 January 2003 gives the appointed administrator plenary powers. I see no reason to change the extent of that authority. I have earlier made the finding that DMB is unable to make reasonable judgements in respect of all of her estate and a plenary order is consistent with that finding.
There are, however, subsidiary matters that require attention as they impact on the authority of the administrator. The Tribunal has been provided with a report by the Public Trustee, the current administrator. Under the heading "Current matters of interest/concern (financial or lifestyle)" the report states:
"[DMB] currently stays in accommodation free of charge owned by her defacto partner [RC]. Although we are able to pay [DMB] share of the running costs I have previously received an account for general maintenance, which is the responsibility of the owner. On this occasion we agreed to advance payment of half of the amount outstanding. However, under the Guardianship and Administration Board Act [sic] this could be viewed as gifting. Therefore I wrote to [DMB] explaining that future repairs and maintenance on [RC] property must be given prior consideration by the Public Trustee before workman [sic] are engaged. I also explained that while the Public Trustee would consider the request funds may not be advanced."
Evidence was given by RC that DMB and he are living in a house owned by him. The house was left to RC by his father. RC and DMB are finding it difficult to pay for the property expenses and ongoing maintenance of the house. RC says that shire rates for this financial year and arrears from the previous year remain unpaid as do the current year's water rates. There is also an outstanding electricity account. RC expects legal action to be commenced in respect of the outstanding shire rates.
The difficult financial circumstances in which DMB and RC find themselves, is confirmed by the evidence of Dr SC, JB and DWB (DMB's father).
RC says that he and DMB are planning to get married, but cannot do so because they do not have enough money. He also says that Centrelink (both DMB and RC are on social security income) has reduced his income due to the fact that he and DMB are in a relationship. DMB's income is likely to be similarly affected.
RC says that DMB receives $150.00 a week in an allowance from the Public Trustee, and that she currently pays for half of the utility costs. From the unaudited financial report provided by the Public Trustee for the period 30 June 2004 to 10 May 2005, there is only one payment in respect of electricity use. Other expenditure is shown as DMB's share of the maintenance costs as mentioned earlier, her ambulance fund membership and weekly allowance. The other costs are bank and Public Trustee fees. For the period of the report, DMB's funds in the Public Trustee common fund have increased by nearly $900.00.
There is nothing in the Public Trustee's report that indicates a formal arrangement whereby DMB pays rent or board or the equivalent of such a payment by way of a contribution say to the property costs of the house in which she lives with RC, her fiancé.
It seems to me this is likely the reason that as a couple, DMB and RC are finding it difficult to meet their financial commitments. In most other circumstances DMB would be paying rent, board or an equivalent for her accommodation needs. It seems only reasonable that she should do so in her current circumstances.
It is appropriate therefore for the administration order to include a direction to the administrator that they apply from DMB's estate, in lieu of her paying rent or board, half of the property expenses including necessary repairs and rates and taxes. I am excluding any contribution to improvements to the property which properly are the responsibility of RC at this time, as owner of the property.
In his evidence, RC mentions the outstanding accounts for rates and taxes and electricity and two repair items to which DMB could contribute. He goes on to say that he would expect the balance of DMB's funds to be invested in a fixed‑term deposit.
I will add the further directions that the administrator apply funds from DMB's estate for payment of half the utility costs of the house and also to pay for her comforts and necessaries. In doing so the administrator must have regard to the circumstances and value of DMB's estate from time to time.
Who should be DMB's administrator?
When appointing an administrator for DMB pursuant to s 68 of the Act (see "The relevant legislation" in these reasons), the following must be taken into account as far as possible: the compatibility of the proposed administrator with DMB, her wishes and whether the proposed administrator will be able to perform the functions given to him or her (s 68(3)).
RC has proposed himself as administrator. His appointment is supported by Dr SC, JB, DWB and LAB (father and mother of DMB) although both Dr SC and JB voice a concern about RC's physical health and how that might impact on the operation of the administration order.
RC and DMB are in a relationship and live together. RC describes himself as DMB's fiancé. This and the support given to the proposed appointment of RC in my view satisfies the test of "compatibility" at least to the extent that RC is more compatible than the Public Trustee as DMB's proposed administrator.
In her evidence, DMB could not clearly articulate her preference but I am satisfied that it is more likely than not she would prefer RC to be her administrator. The evidence shows he already deals with some of her financial matters such as paying bills.
As to whether RC can effectively carry out the role of administrator, he says he can and that he has previously undertaken the role of executor of a deceased estate. The concern over the state of his physical health is a factor against his appointment, but neither Dr SC, nor JB state that he should be excluded from the appointment for this reason.
I am satisfied, on balance, that RC should be appointed DMB's administrator. He fulfils the requirements of s 68 of the Act. I will make the order for two years to take some account of the possible impact RC's health problems might have on the effectiveness of a long‑term appointment.
Decision and order
1.The order dated 14 January 2003 be revoked and an administration order in the following terms be substituted for it:
RC be appointed plenary administrator of the estate of DMB with all the powers and duties conferred by the Act.
2.In lieu of paying rent or board for her accommodation the administrator shall apply from the estate of DMB, payment for half of the property expenses, including necessary repairs, and rates and taxes but excluding improvements on the property.
3.The administrator shall also apply from the estate of DMB payment for half of the utility costs.
4.The administrator shall apply or expend moneys of DMB, whether income or capital, for the maintenance, necessaries, comforts and benefits of DMB, in such manner and to such extent as the administrator having regard to the circumstances and the value of the estate of DMB, considers proper and reasonable.
5.This order is to be reviewed by 9 September 2007.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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