DT and EER
[2013] WASAT 38
•11 MARCH 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: DT and EER [2013] WASAT 38
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 7 MAY, 22 JUNE, 29 AUGUST AND 6 NOVEMBER 2012
DELIVERED : 11 MARCH 2013
FILE NO/S: GAA 114 of 2012
GAA 790 of 2012
GAA 3700 of 2012
BETWEEN: DT
Applicant
AND
EER
Represented Person
Catchwords:
Guardianship and administration Guardian ad litem Conflict of interest Who should be appointed administrator Need for a guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 44(1)(b), s 64(1)(a), s 68, s 68(5), s 69(3)(b), s 70, s 85(1)(c), s 85(1)(e), s 85(2), s 87, s 90, s 97(1)(b)(iii)
Residential Tenancies Act 1986 (WA)
Rules of the Supreme Court 1971 (WA), O 70, r 2(1), r 3, r 3(8)(iii), r 7
Result:
Administration order confirmed
Guardianship application dismissed
Summary of Tribunal's decision:
In 2009 the grandson of an elderly woman was appointed her limited administrator to act as her guardian ad litem in a Supreme Court action.
A son of the woman applied for a review of the order on the basis that the grandson was in a position of a conflict of interest in the Court action.
The son had also applied for a guardianship order to be made for the woman because it was his belief that she had been under the malign influence and control of the grandson for many years which affected other family members' ability to visit the woman.
The Court action involved a property the son and grandson owned as tenants in common in equal shares. The woman lived in the property and had done so for over 50 years.
The woman had been joined in the Court action by the son because of a dispute over whether she was required to pay rent and outgoings and whether she had a life tenancy in the property.
The son submitted that the grandson could not advance his own interests as co-owner of the property at the same time as advancing the interests of the woman.
The grandson submitted that in the time he had been acting as guardian ad litem he had advanced the interests of the woman in her wish to remain living in the property. He said he would continue to do so.
The Tribunal found that in a practical way, over a long period of time, the grandson had elevated the represented person's interests in the property above his own. In the progress of the Court proceedings to date it could not be said that he had advanced interests adverse to the woman.
The Tribunal confirmed the appointment of the grandson as the woman's limited administrator.
The Tribunal decided to dismiss the application for a guardianship order because it was determined that there was no current need for an order.
Category: B
Representation:
Counsel:
Applicant: Mr TR Stephenson for review of the administration order
Represented Person : Mr L Chiat
Solicitors:
Applicant: Eastwood Sweeney Law
Represented Person : Public Trustee
Case(s) referred to in decision(s):
Aberdeen Railway Co v Blaikie Bros (1854) 1
Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [2009] WASC 33
Australia and New Zealand Banking Group Ltd v Mosko Mejer Dzienciol by his guardian ad litem Phillip Dzienciol & Ors [2001] WASC 305 (S)
Charlton v Baber [2003] NSWSC 745
Decision of the District Court of Western Australia in 2000 (R) in an action commenced by the represented person and her spouse (anonymised to meet the confidentiality provisions of the Guardianship and Administration Act 1990 (WA))
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Farrell v Allregal Enterprises Pty Ltd (No 2) [2009] WASC 65
Public Trustee v Blackwood [1998] 8 Tas R 256
Robert Mitford Rowell by Next Friend Angela Joan Rowell & Anor v Calder & Ors [2007] WASC 23
REASONS FOR DECISION OF THE TRIBUNAL:
Background
On 23 September 2009, the Tribunal appointed an administrator for a then 90-year-old woman, EER (represented person) under the Guardianship and Administration Act 1990 (WA) (GA Act). The appointed administrator was her grandson, PH (grandson).
The grandson was also the applicant and in the application form, he gave the reason for seeking an order as defending the represented person's interests in a court action in which he said the represented person's son, DT (son), was attempting to evict her from her residence.
A psychiatrist's report from the time stated that the represented person was dependent upon her daughter, RH (daughter), for support with her daytoday living and on her grandson for legal and financial assistance.
The psychiatrist assessed the represented person as having extreme difficulties with communication due to a hearing impairment and cognitive decline. The represented person had been previously diagnosed with anxiety and depression which had been managed with counselling. She was said to have difficulties understanding the context of complex decisions and was unable to understand the context of decisions being made. When pressured, she would become extremely anxious and agitated, tending to repeat herself and becoming thought disordered. She did not show evidence of suffering with an Alzheimer's dementia. The psychiatrist also assessed the represented person to be unable to be aware of choices and the consequences of choices.
The represented person's solicitor had written to the Tribunal advising of the represented person's failing ability to give instructions.
The represented person had, on 15 April 2003, executed an enduring power of attorney appointing the grandson as her attorney.
The represented person's estate was described in the application form as consisting of her entitlement to a war widow's pension and bank funds of about $1,000. She was said to have a utilities debt of $500.
The grandson had also applied for a guardian to be appointed for the represented person but this was dismissed by the Tribunal.
The applications by the grandson had been referred to the Public Advocate under s 97(1)(b)(iii) of the GA Act. Her report provided some context to the represented person's then circumstances. Relevantly, it was said that the son was in dispute with the grandson over the property in which the represented person was living (property). The property was owned by the son and grandson, and an aspect of the dispute centred on whether the represented person had a life tenancy in the property and whether she was liable to pay rent.
The represented person had had very limited contact with the son for 20 years. The son opposed the appointment of the grandson in any capacity, as it was his view (and, he said, of another son and daughter of the represented person) that the situation would not have developed as it did had the grandson been reasonable in dealings with other family members. The grandson (supported by the daughter, who is his mother) proposed his appointment on the basis that he was the represented person's attorney and had been assisting her in her financial affairs since 2003.
In the event, the Tribunal gave the grandson limited authority under the administration order to bring and defend actions, suits and other legal proceedings in the name of the represented person; that is, to act as next friend or guardian ad litem, as the circumstances demanded.
The current applications
In January 2012, the son sought leave to apply for review of the administration order. Leave was granted by the Tribunal.
In March 2012, the son applied for a guardian to be appointed for the represented person.
The basis of the application for review of the administration order as stated in the application form is that the represented person and grandson are defendants in a Supreme Court action (Court proceedings) initiated by the son. The represented person (because of her status as a represented person) is a person under disability within the meaning of O 70 of the Rules of the Supreme Court 1971 (WA) (Rules). Order 70 r 3 of the Rules provides that a person appointed as a guardian or administrator shall act as next friend or guardian ad litem, as the case may be, of the represented person. The son contends that the grandson has failed, or refused, to act as the guardian ad litem of the represented person since the order for administration was made in 2009, and has stopped instructing the solicitor who has been on the record for the represented person. The grandson has given notice to the Supreme Court of his intention to act personally and has not appointed independent legal representation for the represented person. By reason of O 70 r 2(1) of the Rules, no further steps can be taken in the Court proceedings until such time as a guardian ad litem is appointed.
The basis of the guardianship application by the son is that the represented person has been under the malign influence and control of the grandson for almost 14 years.
The applications were first heard on 7 May 2012 and adjourned. The application for review of the administration order was referred to the Public Advocate for investigation and report (s 97(1)(b)(iii) of the GA Act). The son and grandson were directed to file written submissions as to the nature of any interest the represented person might have in the property and how the Court proceedings impacted on that interest.
The Tribunal proceedings were adjourned in June 2012 and August 2012 to give time for the Public Trustee and Public Advocate to respond to submissions made by counsel for the son.
In October 2012, the son made an application under s 85(2) of the GA Act contending that the grandson, as administrator for the represented person, has been guilty of such neglect or misconduct, or of such default, as to render him unfit to continue in the administration role (s 85(1)(c) of the GA Act). The son states in his application that a company of the grandson was placed under administration in July 2011 and therefore s 85(1)(e) of the GA Act also applies.
The final hearing on all the applications was held on 6 November 2012 and the Tribunal reserved it decision.
The applications before the Tribunal (including the application for a guardianship order) arise essentially from the dispute between the son and grandson over the property. I will therefore consider that matter first.
The applications for review of the administration order
The son by counsel
The son has made numerous lengthy submissions in his own right; however, the argument for removing the grandson as administrator for the represented person is largely contained in the oral and written representations of his counsel.
Relevantly, the position of the son is as follows.
•The property is owned by the son and grandson as tenants in common in equal shares. It was acquired in 1994.
•There is a mortgage on the property which is in default.
•In 2006, the son initiated the Court proceedings for partition of the property. The son wants the property sold.
•In January 1994, the son and grandson entered into a fixed term tenancy agreement with the represented person, who was required to pay rent and outgoings.
•The represented person was joined as a defendant in the Court proceedings in 2008 on the basis that the son could seek an order to terminate the tenancy for breach of the tenancy agreement (nonpayment of rent and outgoings) and obtain vacant possession, although the son has no intention of enforcing any rental arrears that may be determined. The grandson has refused to enforce the tenancy agreement against the represented person.
•The grandson claims that the represented person is entitled to live in the property free of rent by the effect of an earlier arrangement arrived at in 1988 between the represented person, her late husband and their children. The son refers to a Decision of the District Court of Western Australia in 2000 (R) in an action commenced by the represented person and her spouse (anonymised to meet the confidentiality provisions of the Guardianship and Administration Act 1990 (WA)) and the 1994 tenancy agreement as evidence of the requirement of the represented person to pay rent and outgoings. The grandson asserts that the true intention of the parties was that there be exclusive use and occupation of the property during the lifetime of the represented person and her spouse (and the survivor of them).
•The appointment by the Tribunal in 2009 of the grandson as administrator for the represented person did not give consideration to the above matters.
•In June 2011, the solicitor acting for the grandson and the represented person advised the Court that he was no longer retained by either party. The grandson has not appointed any solicitor for the represented person since that date, which is delaying the Court proceedings.
•The son accepts that the represented person is in need of a guardian ad litem in the Court proceedings but submits that it cannot be the grandson.
•The role of guardian ad litem is fiduciary in nature. A fiduciary cannot enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of the person he is bound to protect (The Full Court (WA) in Fordham v Legal Practitioners' Complaints Committee (5/1996) citing Lord Cranworth in Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq 461 at 471).
•If the 1994 tenancy agreement is upheld, then the grandson would be entitled, as co-owner of the property, to the benefit of that judgment. At that point, it could be said that the grandson may have an interest which may possibly conflict with the represented person as regards the Court proceedings.
•An independent person reviewing the evidence on behalf of the represented person and only having her interests in mind may well reach the conclusion that she has no entitlement to reside in the property free of rent.
•The son continues to be open to disposing of his interest in the property to the grandson for proper market value rather than by way of a partition. The grandson does not want this, because he seeks to have the Court proceedings dismissed on the basis that the 1994 tenancy agreement prohibits the sale of the property. There appears therefore not to be scope for a settlement which would allow the represented person to remain in the property.
•The Supreme Court will ultimately determine whether the grandson's interests are in conflict with the represented person and, on the facts, it is unlikely that the Court will accept the grandson as guardian ad litem. It would therefore be pointless for the Tribunal to keep in place an administrator who will not be acceptable to the Court in the Court proceedings. A challenge to the propriety of the grandson's appointment has been flagged.
•It appears that the Public Trustee does not wish to be required to assume the conduct of the defence of the Court proceedings on behalf of the represented person. The Public Trustee is obliged to charge fees.
•The son proposes the appointment of the Public Advocate as the represented person's limited administrator to act as her guardian ad litem (s 68(5) of the GA Act). The Public Advocate has more than one lawyer on her staff who may be able to provide free legal advice to the represented person.
The son himself
In the many submissions filed with the Tribunal, and in his oral evidence, the son relevantly states:
•In about 1988, the property (which was the family home of the represented person and her late spouse) was sold to a trust in which the trustees and beneficiaries were the four children of the represented person. The property was sold because it was at risk as a consequence of a mortgage taken out to secure the debts of the daughter. The represented person and her spouse were to rent the property from the trust for $1,000 per month, evidenced by a tenancy agreement, and the trust would pay the same monthly amount to the represented person and her spouse as payment on the purchase price of the property. The trust borrowed against the property, the borrowed funds being dispersed largely as loans to the beneficiaries. The trust ran into financial difficulties, such that the property was sold to a friendly third party. In 1994, that party wanted to sell the property but, contrary to a 'gentleman's agreement', demanded full market value. That is when the son and grandson purchased the property as tenants in common in equal shares.
•The 1994 tenancy agreement was entered into with the represented person on much the same terms as the earlier tenancy agreement.
•In late 1995, at the suggestion of the grandson, the mortgage on the property was transferred to the National Australia Bank (NAB). Mortgage payments were ceased from March 1999 and the grandson entered into an arrangement with NAB in which he lodged a security deposit of $35,000 to cover the default in the mortgage payments.
•In the period 1994 to 1997, there were arguments with the grandson because the represented person was not paying rent. The grandson had unilaterally made a decision that the represented person not pay rent and said that the rent should be paid by the children. This was unacceptable to the son and other family members.
•In about 1999, the represented person disowned the son, her other son and another daughter because of the issues surrounding the property.
•The grandson was a key figure for the represented person (and her spouse) in the action against the children in the District Court (R). The action was unsuccessful.
•In 2003 and 2004, attempts were made by the son to initiate a partition application in the Supreme Court as well as a demand for unpaid rent from the represented person.
•In late 2005, an action had commenced against the son's share of the property to satisfy a judgment debt against him. It was eventually adjourned pending the outcome of the Court proceedings.
•In 2007, the son commenced an action under the Residential Tenancies Act 1987 (WA) for the unpaid rent. The application was dismissed because only one of the coowners/landlords (the son) took the action. The matter of the unpaid rent was adjourned pending the outcome of the Court proceedings. A costs order was made against the son.
•In 2008, the represented person was joined in the Court proceedings because of the unresolved issue of the unpaid rent.
•In December 2009, mediation was held on the Court proceedings in an attempt to settle the matter. The grandson had said that he wanted to preserve the ownership of the property so that the represented person could continue to live in the property for as long as she wished. There had been an earlier agreement with the grandson that he and the son would accept a formal valuation of the property (the grandson's choice of valuer) as the basis upon which the grandson would purchase the son's share of the property. The grandson refused to accept the valuation figure, claiming it was too high. The mediation was unsuccessful.
•In February 2010, NAB issued a writ against the son for the mortgage which continued in default.
•Since 2011, the grandson has consistently failed to comply with the directions of the Court to ensure that the represented person is legally represented in the Court proceedings.
•The son says he was advised in November 2011 that the daughter had had an accident at work and was mostly unable to care for the represented person.
•The son states he has been enquiring about the whereabouts of the represented person's stamp collection since the represented person was reported as having no estate in the 2009 Tribunal proceedings. The represented person's stamp collection was returned to her by another daughter, LV.
•The grandson's control and manipulation of the represented person (and the daughter) is 'absolute', by eliminating most contact with other family members and convincing the represented person that she is under 'attack' from the rest of her family. In doing this, the grandson has furthered his own interests.
•The son states that he has been living in 'horrendous' financial circumstances for many years.
•In a submission dated 31 August 2012, the son states that as an 'alternative proposal', he would make an application to the Tribunal for an administrator to be appointed for the grandson for the purpose of initiating and defending legal claims. The application was made but subsequently withdrawn.
The grandson
The grandson submits that if he is removed as administrator for the represented person, he believes she will be left ultimately without a residence. The represented person does not have alternative accommodation nor does she have the resources to meet her legal costs in the Court proceedings.
The grandson states that as the coowner of the property, he consents to the life tenancy agreement he says exists on behalf of the represented person. He submits that it was never the intention that rent be collected, and rent has not been paid since the original agreement was made in 1988.
The grandson states that NAB has commenced action against him and the son in respect to the mortgage. He says that NAB was aware of the life tenancy when the property was purchased in 1994. The grandson states that it is his understanding that the son has consented to a summary judgment application by NAB but that he does not intend to give consent.
The grandson states that he is currently representing himself in the Court proceedings and is not currently instructing a solicitor on behalf of the represented person because of the uncertainty caused by the son initiating the current proceedings in the Tribunal. He states that if reappointed as the represented person's administrator, he will rectify this situation.
The represented person's estate is reported to consist of her entitlement to a pension, $908 of bank funds (as of June 2012) and her life tenancy in the property.
The Public Trustee
The submissions of the Public Trustee are as follows.
•Order 70 r 3(8)(iii) of the Rules provides that the person named as next friend, or guardian ad litem as the case may be, should have no interest in the cause or matter in question, adverse to that of the person under disability.
•The Public Trustee accepts that a guardian cannot qualify for appointment if he has a conflict of interest, and that whether a conflict of interest exists must be determined objectively.
•Counsel for the son has referred the Public Trustee to the decisions in Robert Mitford Rowell by Next Friend Angela Joan Rowell & Anor v Calder & Ors [2007] WASC 23 (Rowell); Australia and New Zealand Banking Group Ltd v Mosko Mejer Dzienciolby his guardian ad litem Phillip Dzienciol & Ors [2001] WASC 305 (S) [8] [11] (ANZ); Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [2009] WASC 33 and Farrell v Allregal Enterprises Pty Ltd (No 2) [2009] WASC 65 (Allregal Enterprises).
•ANZ is authority only for the proposition that a guardian ad litem who is acting defensively will not be liable for costs unless he is acting unreasonably.
•In neither of the two related decisions in Allregal Enterprises was any consideration given to the question of what constituted a conflict of interest or adverse interest.
•The High Court of Australia in the matter of Dey v Victorian Railways Commissioners (1949) 78 CLR 62 considered the question of who was most appropriate to be appointed as next friend, the test being whether the proposed appointee's interests are adverse to the person for whom he would be acting, or is connected with some person who has an adverse interest, or if, for any reason, the Court considers that the person's interests will not be properly protected by the next friend.
•In Rowell at [15] and [30], Martin CJ considered that in the circumstances of that case the role of the Tribunal was to choose who was the most appropriate person to protect the interests of the first plaintiff generally by way of an administration order (an application for the appointment of an administrator was before the Tribunal), and that the question at issue before the Court was limited to questions of conflict of interest (the first plaintiff was acting by next friend). The question of whether the existing next friend should remain in place depended on whether she would be advancing interests adverse to the first plaintiff, or which conflict with his, or whether she was exploiting his rights to advance her own.
•In Rowell at [35], his Honour pointed out that O 70 r 7 of the Rules gave the defendants the right to bring an application to the Court to have the next friend removed. This is what the son can consider doing if he has legitimate concerns as to the manner in which the grandson has conducted the Court proceedings to date.
•There is insufficient evidence to suggest there is a conflict of interest between the son and the represented person in the Court proceedings. The grandson asserts that his interest in acting as guardian ad litem of the represented person is to protect her life interest in the property pursuant to the alleged lease. On this basis, there is no evidence that the grandson has any interest adverse to the represented person. The fact that the grandson is a partowner of the property does not necessarily create a conflict of interest.
•It appears that the application by the son is directed at his own interests and not the interests of the represented person, in that the son is hoping, by way of the application before the Tribunal, to hasten the conclusion of the longstanding dispute between him and the grandson.
•It is not evident how the appointment of the Public Trustee or the Public Advocate would advance the interests of the represented person in the Court proceedings.
•If the Public Trustee were appointed as the represented person's guardian ad litem, it would involve considerable time and money to familiarise himself with the Court proceedings. The represented person is of limited means and cannot, in her own right, meet the costs of the Court proceedings.
•It would be inequitable to require the Public Trustee to expend public funds when the requirement for his appointment is simply to assist the son to progress litigation against the represented person.
•If the son's action in the Court proceedings is unsuccessful, then it is unlikely that the Public Trustee will be able to recover costs from him.
The Public Advocate
The Public Advocate's representative (Public Advocate) has interviewed the represented person. In that interview, the represented person was said to be unable to respond appropriately to complex questions regarding her financial affairs and the Court proceedings. The represented person professes her love and trust for the grandson and her wish that he continue to manage her financial affairs.
The son is reported to have said to the Public Advocate that the represented person had a stamp collection that would now be worth $1 million but that the stamp collection is gone, and that this had occurred during the financial stewardship of the grandson. The represented person is reported to have said that another daughter stole the stamp collection.
In reference to s 68(5) of the GA Act, the Public Advocate submits that the Public Advocate should not be appointed the represented person's administrator if there are no barriers to the appointment of the Public Trustee.
The Tribunal's decision on the review of the administration order
The relevant legislation
4. Principles stated
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)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.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
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
(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
(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)
(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.
68. Who may be appointed administrator
(1)An administrator (including a joint administrator) shall be
(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
(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
(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
(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.
70. Administrator to act in best interests of represented person
(1)An administrator shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible
(a)as an advocate for the represented person in relation to the estate;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from financial neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
(3)Nothing in subsection (2)(a) shall be read as authorising an administrator to act contrary to the Legal Profession Act 2008.
(4)Nothing in subsection (2) shall be read as restricting the functions of an administrator at common law or under any written law.
The decision
This is an unusual case. It concerns a family which appears to have been at war for many years, it would seem, in no small part manifested in the changing ownership structure of the property in which the represented person has lived for a good part of her adult life.
The represented person is 93 years of age and continues to live in the property assisted mainly by her daughter and grandson.
The grandson is currently the represented person's limited administrator with the specific role of acting as her next friend, or guardian ad litem, depending on what her circumstances demand. Currently (and the reason for his appointment in 2009), the grandson is acting as the represented person's guardian ad litem in the Court proceedings.
The son is challenging the appointment of the grandson by way of a review of the order for administration.
Under s 90 of the GA Act, upon a review of an administration order, the Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order, revoke the order or revoke the order and substitute another order for it, or revoke the appointment of any administrator or appoint a new or additional administrator.
The son submits that a new administrator should be appointed. The grandson proposes that the current order be confirmed.
Unless the Tribunal places conditions on a review which requires leave to be granted, then the review must encompass the entirety of the represented person's needs as regards the management of her estate (s 87 of the GA Act). When leave was granted by the Tribunal in respect to the son's application, it was done so unconditionally.
The first question which must therefore be addressed is the represented person's capacity (s 4(2)(b)(iv) and s 64(1)(a) of the GA Act).
Apart from submitting that the grandson has a form of malign control over the represented person, the son does not challenge the finding made by the Tribunal in 2009 that the represented person is someone for whom an administrator could be appointed.
The Tribunal has not been presented with any specialist medical evidence in addition to that available when the administration order was made in 2009. I see no reason to change the finding made at that time that the represented person is someone for whom an administration order could be made (s 64(1)(a) of the GA Act). The evidence continues to support the view that the represented person is unable to understand and make reasonable judgments about such complex matters as the Court proceedings (see, for example, the Public Advocate's interview of the represented person).
I am satisfied that the need for an administration order can be limited to the represented person's ongoing interests in the Court proceedings (s 4(2)(c) and s 4(2)(e) of the GA Act). The represented person's estate is otherwise small and uncomplicated. On the evidence, I am unable to make a finding on the existence or disposal of a stamp collection purportedly owned by the represented person. Her ongoing financial requirements are few and, given her age, restricted to her daily needs and social support. The son has not produced any evidence to show that the enduring power of attorney in favour of the grandson cannot continue to be used for this purpose.
The question which most critically entertains the exercise of the Tribunal's discretion is who should be appointed the represented person's administrator to advocate and protect her interests in the Court proceedings.
In seems to me that in answer to that question, the son has not adequately addressed the statutory requirements for the appointment of an administrator and, when appointed, how an administrator should act for the represented person.
The primary objective of the GA Act is encapsulated in the principle of best interests. It is the overriding requirement of the Tribunal that it make its determinations in the represented person's best interests and that when appointed, an administrator also act in her best interests (s 4(2)(a) and s 70 of the GA Act).
Fundamentally, the expression 'best interests' in the context of a protective jurisdiction such as the GA Act reinforces the idea that the paramount concern is the overall interest of the person to whom the protection is directed (Public Trustee v Blackwood [1998] 8 Tas R 256). Put another way, the expression is concerned with the person's separate and independent welfare (Charlton v Baber [2003] NSWSC 745 at [52]).
For an administrator, the statutory context of best interests is s 70 of the GA Act.
It seems to me unarguable that it is the represented person's current best interests for her to be able to continue to live in the property. It is her wish to do so. The property is familiar to her and she lives her life in an environment well known to her for much of her adult life. She is in the last years of her life and any disruption other than because of illness or an increase in her care needs would be a cruel imposition.
Whatever else was said in R, to which the son and grandson refer in the Court proceedings, his Honour in that matter found that despite the property transactions that had taken place, it was the initial intention of the represented person's family that she and her spouse have the right to occupy the property during their lifetime, or the lifetime of the survivor of them (at [39]).
It is not in dispute that since the Court proceedings were commenced by the son in 2006, the grandson has opposed the application for a partition of the property. A partition of the property will put the represented person's residency of the property at risk. Other factors and motivations aside, the effect of the grandson's actions has enabled the represented person to remain living in the property. When I consider the represented person's 'separate and independent welfare', I find this to be in her best interests.
The grandson has advocated for the represented person by advancing her right to remain in the property; he has encouraged the represented person to live in the general community and to participate as much as possible in the life of the community by supporting her in the property, and he has taken into account her wish to live in the property (s 70(2)(a), s 70(2)(b) and s 70(2)(e) of the GA Act).
The son's principal argument is that the grandson's interests as coowner of the property is in inherent opposition, or adverse to, the interests of the represented person and that this inherent conflict will become tangible if the tenancy agreement, as argued by the son, is found to be superior to the life tenancy argued by the grandson, and if the partition application is then granted. It is submitted that the grandson cannot escape this conflict of interest, and he must therefore not be put in a position of simultaneously advocating for the represented person's interests whilst protecting his own.
It is instructive to note that in the appointment of a guardian to make personal decisions for a represented person, s 44(1)(b) of the GA Act states that the proposed appointee should not be in a position where his interests conflict, or may conflict, with the interests of the represented person. This is an onerous provision, but it is not replicated in the provisions of the GA Act which guide the Tribunal in the appointment of an administrator (s 68 of the GA Act).
In the appointment of an administrator, there is a statutory preference in the GA Act for the appointment of a person who is close to the represented person (see, in particular, s 68(3)(a) and s 69(3)(b)), and it is not uncommon for potential financial conflicts of interests to be intrinsic to those relationships. Take, for example, a spouse or child appointed as administrator who is also a beneficiary of the will of a represented person, or where an administrator remains reliant on the income of a represented person or continues to live in a represented person's property. These circumstances do not exclude the person from being appointed as administrator but there is a need to manage any conflict that arises and which may compromise the making of a best interests decision for a represented person.
The test is an objective one determined in light of the circumstances of the particular case.
In my view, the grandson has, in a practical way, over a long period of time, elevated the represented person's interests in the property above his own. In the progress of the Court proceedings to date, it cannot be said, on the evidence before me, that he has advanced interests adverse to the represented person. His evidence, which I accept because it reflects what has already occurred, is that he will continue to progress the represented person's interests insofar as they enable her to continue to reside in the property.
I accept the submission of the Public Trustee that the principal motivation of the son in making application for review of the administration order has been to progress the Court proceedings in his interests.
In the context of the determination I must make under the GA Act in the best interests of the represented person, I see no current need to change the order that was made on 23 September 2009 appointing the grandson as the represented person's limited administrator to act as guardian ad litem in the Court proceedings.
My decision does not affect the jurisdiction of the Court to ultimately make its own decision in respect to the ongoing conduct of the grandson in the Court proceedings (see, for example, O 70 r 7 of the Rules, and the judgment of Pullin J in Farrell v Allregal Enterprises Pty Ltd (No 2) [2009] WASC 65).
The application for a guardianship order
The son
In a submission dated 31 August 2012, the son states:
I was a little lost for thoughts when asked as to the reasons for my Guardianship application; [the grandson]'s presence always drains me. I want to emphasise that I'm concerned not so much as to my mother's physical day-to[-]day living cares, but for her mental welfare, as a result of being in [the grandson]'s Fantasyland. She has a much larger family out there, who'd like to be with her again.
The son submits that the Public Advocate should be appointed the represented person's guardian to provide an independent view on her circumstances and to make decisions about the contact she has with her children and other family members.
The grandson
The grandson states that there are no barriers or restrictions on family members wishing to visit the represented person. The represented person's other daughter visits.
The daughter
The daughter states that she takes the represented person to all her appointments. She says that she visits the represented person on a daily basis and that the represented person receives community assistance for house cleaning and gardening.
The daughter states that the represented person has lived in the property for over 50 years and submits that she has only ever wanted to live in that place.
The Public Advocate
The Public Advocate states that the represented person ably looks after her residence on a daytoday basis, and questions what personal decisions need to be made for her that would warrant the appointment of a guardian.
The Tribunal's decision on the guardianship application
It is my view that the application by the son for a guardianship order for the represented person is little more than a collateral attack on the grandson as support for the son's substantive application to have the grandson removed as guardian ad litem of the represented person.
I accept that the son is able to visit the represented person if he chose to do so.
I am satisfied, on the evidence, that the represented person's daily needs are met by a combination of assistance from the daughter, the grandson and a community agency. I accept the evidence of the Public Advocate, as a person charged with giving an independent view of the represented person's best interests, that there is nothing in the domestic affairs of the represented person which currently requires intervention by the Tribunal.
I will therefore dismiss the application for a guardianship order.
Orders
1.The administration order made on 23 September 2009 is confirmed.
2.The order is to be reviewed by 28 February 2018.
3.The application for a guardianship order is dismissed.
I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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