EL
[2023] WASAT 115
•8 NOVEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: EL [2023] WASAT 115
MEMBER: JUDGE H JACKSON, DEPUTY PRESIDENT
MS A KING, MEMBER
MR E CADE, MEMBER
HEARD: 8 NOVEMBER 2023
DELIVERED : 8 NOVEMBER 2023
FILE NO/S: GAA 4310 of 2023
EL
Represented Person
BL
Applicant
PUBLIC TRUSTEE
Other Party
Catchwords:
Guardianship - Administration - Review of decision by single member - Enduring power of attorney revoked - No fault of donee - Donee seeks powers of administration - Donee spouse of represented person - History of separate accounts but shared expenses - Desire by spouse as proposed administrator to spend represented persons estate on, in part, joint expenses and herself - Conflict of interest - Wishes of represented person - Continuation of lived experience - Spouse appointed administrator with power to expend represented person's estate for her own maintenance, accessories, comforts and benefits
Legislation:
Guardianship and Administration Act1990 (WA), s 4, s 44, s 64, s 68, s 68(5), s 70, s 80, s 106, s 109
State Administrative Tribunal Act 2004 (WA), s 17A
Result:
Applicant appointed plenary administrator with power to use represented person's estate for her reasonable maintenance, necessaries, comforts and benefits
Category: A
Representation:
Counsel:
| Represented Person | : | N/A |
| Applicant | : | N/A |
| Other Party | : | N/A |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | In Person |
| Other Party | : | Mr Romanes |
Case(s) referred to in decision(s):
DJN and RCN [2005] WASAT 157
FC [2012] WASAT 61
JM and JD [2012] WASAT 231
Kf & Anor [2006], WASAT 47
LR (or P) [2019] WASAT 38
Perpetual Trustees WA Limited and The Public Trustee [2009] WASAT 253
REASONS FOR DECISION OF THE TRIBUNAL
(These reasons were delivered orally at the time of the hearing and have been taken from the transcript. They have been edited to anonymise parties, make necessary corrections or annotations for the purposes of correcting grammatical errors or infelicity of expression and to add relevant authorities.)
Introduction
The applicant in this matter is BL. She is the wife of EL. EL has dementia.
We have a report to that effect from Dr G, dated 2 August 2023 which says that the doctor has known EL for two years and has seen him three times in the last 12 months.
The report says that EL has dementia, the condition is progressive, and he is incapable of making reasonable decisions in his own best interests in relation to even simple financial matters.
That conclusion is also consistent with other evidence such as the discharge summary from Joondalup Health Campus on 18 July 2023.
EL executed an enduring power of attorney (EPA) in 2016. That was drafted in a manner such that it would take effect upon a declaration by this Tribunal under s 106 of the Guardianship and Administration Act1990 (WA) (the Act) to the effect that EL lacked capacity.
On 26 July 2023, BL, sought that declaration.
That application came on for hearing before a single Member on 15 September 2023. BL was the only participant at that hearing.
The Member noted that that part of the EPA document which BL had signed, and by which she purported to accept her appointment by EL as his attorney, had not been fully completed.
That is, while BL had signed the form, she had not written her name identifying her as the donee of the power. As a result, the Member revoked the enduring power of attorney.
The Member also appointed the Public Trustee as administrator of EL's estate, subject to various directions.
BL now seeks review of that single Member's decision.
In effect, she says that she wants to be returned to her position as decision-maker in relation to EL's estate.
Nature of s 17A Proceedings
The application has been brought under s 17A of the Act. That brings it within the Tribunal's review jurisdiction.
That requires us to stand in the shoes of the original decision-maker and remake the decision from the beginning. That is, this is a hearing de novo.
In doing so, we can and have had regard to all of the material before the Tribunal at first instance. It is also necessary to refer to s 4 of the Act which requires us to have certain matters in mind at all times, the primary one of which is that we must make our decision having the best interests of EL as the represented person at the front and centre of our mind.
We are also required by that section to proceed on the presumption that EL has capacity, although for the reasons that we have recently outlined, we are satisfied that that presumption is displaced.
Returning to the EPA. The EPA, in our view, represents EL's wishes and intention as to who he wanted to make decisions on his behalf, should he lack capacity to do so.
Accordingly, if it was possible to do so, that EPA should be given effect.
To do so would be consistent with the statutory regime of the Act, which, for example, at s 64 provides that administration orders can only be made if there is a need for such orders and, plainly, if an EPA is in place, there is no such need.
Unfortunately, we are of the view that the EPA, having been revoked by the single Member on 15 September 2023, cannot be reinvigorated. Further, we have no power to grant a further EPA.
That is the difference between an EPA and administration orders; an EPA is made by a person themselves, not the Tribunal.
Moreover, and returning to the previous point, we have no power to reverse the revocation of the EPA. We have the power in these proceedings to vary the order made by the single Member, and we have the power to set that order aside and to substitute it with another order. But either way, those orders have no retrospective effect. That is, any order varying or setting aside the single Member's order takes effect from the date on which it is made, so that we cannot go back and undo what has in fact been done.
Administration orders
That then brings us to s 68 of the Act. That section provides that an administrator shall be an adult 'who has consented to act' in the role, who 'will act in the best interests' of the represented person, which is EL, and who 'is otherwise suitable to act' in that role.
Also, relevantly, ordinarily the Public Trustee will not be appointed as administrator unless there is no one else who is suitable and willing to act.
BL consents to her appointment as administrator. The issue is whether or not she is willing and able to act in EL's best interests.
What is required by that phrase is set out in some detail in s 70 of the Act, without that section purporting to be exhaustive.
There is no mention in s 70 about conflicts of interest. That is in contrast with s 44 of the Act which expressly provides that a person may not be appointed guardian if they are in a position where their interests conflict or may conflict with those of the represented person.
The absence of such a requirement in relation to administration suggests that a conflict of interest, or its potential, may not be fatal to appointment as an administrator.
However, there are decisions of the Tribunal which describe a person appointed as administrator as having fiduciary obligations.[1] That means that, amongst other things, an administrator cannot use the represented person's money for their own purposes. That has the potential to create real difficulties, and indeed injustice, for married couples, and indeed, couples who have lived in a de facto relationship.
[1] LR (or P) [2019] WASAT 38 at [47] – [49]; Perpetual Trustees WA Limited and The Public Trustee [2009] WASAT 253 at [109].
In the present case, the evidence is that EL and BL have joint ownership of their home and, while they have separate bank accounts, both have over many, many years contributed to their shared expenses. As well, both have contributed to expenses incurred for only one of them, such as medical costs.
To insist, in those circumstances, that BL (as administrator of EL's estate) spend EL's money only on EL would be inconsistent with the lived experience of both of them over, again, we repeat, many, many years.
We are also satisfied that it would be inconsistent with EL's wishes.
That conclusion requires some degree of speculation, but his execution of the EPA in 2016 evidences that he wanted his wife, BL, to look after his financial affairs and, in the absence of anything in that document to the contrary, we assume that his intention was that she would continue doing what she had always done.
There are at least two ways to address this issue. Both were discussed by the single Member.
The first is to appoint the Public Trustee as administrator and allow it to give to BL a certain amount of money – a certain amount of EL's money – up to a set limit, for her own benefit.
Such an approach has been taken very often by the Tribunal. There are many cases in which orders have been made such that the Public Trustee or some other third party is empowered to spend up to a certain amount out of the represented person's estate for 'maintenance, necessaries, comforts and benefits' of the represented person's spouse.[2]
[2] Kf & Anor [2006], WASAT 47 at [38]; JM and JD [2012] WASAT 231 at [28]; FC [2012] WASAT 61 at [55]; and DJN and RCN [2005] WASAT 157 at [22].
The second is to appoint BL as EL's administrator and include in the orders the power for her to spend up to a certain amount of EL's money for her own benefit; that is, to explicitly and expressly provide for her to use his money for her maintenance, necessaries, comforts and benefits.
The single Member decided to pursue the first option which was to grant the power to the Public Trustee, because of her concern that she was not sufficiently across the detail of EL and BL's finances, to make BL the administrator. That is, she was concerned that whatever limits she placed on the sum that could be spent by BL on herself might be either too much or not enough, and that either one of EL or BL might suffer accordingly.
As a result, she appointed the Public Trustee as administrator, chose a figure of $600 a month as the amount which could be spent on BL and directed the Public Trustee to investigate whether more could be expended on BL without such an increase causing detriment to EL.
That first option is definitely less risky in that the Public Trustee lacks the conflict of interest present in the appointment of BL. But the second option is plainly consistent with EL's wishes as expressed through the 2016 EPA.
The second option is also, subject to the management of BL's conflict of interest, consistent with the principle that the Public Trustee is appointed only where no one else is willing, able and suitable.
In our view, the second option is the preferable decision. Firstly, it reflects EL's wishes. Secondly, the Public Trustee will remain supervisor or, to put it another way, will retain the power of oversight of the estate and its administration through s 80 of the Act, which includes the power to disallow any expense which the Public Trustee considers inappropriate.
It is within our power to further manage the inherent conflict of interest by placing a limit on the sum of EL's estate which may be expended by BL on herself and joint expenses. We will not do that in this case for the following reasons. The first is that Mr R, who appeared on behalf of the Public Trustee, expressed no concerns about BL's management of the account to the extent that he was across the details.
Secondly, we note that BL only finds herself in this situation, and before the Tribunal, effectively as a result of a minor oversight in the execution of the 2016 EPA. Had that oversight not occurred, she would effectively have control of EL's estate without any real oversight by anyone else, save for by this Tribunal pursuant to s 109 of the Act.
And thirdly, as a result of the hearing today, we are satisfied to the extent that we can be of the applicant's integrity and appropriate intentions.
Finally, we are of the view that any residual risk can be limited or, perhaps more accurately, managed by imposing a short timeframe on the orders, and requiring that BL file with the Public Trustee a set of accounts for examination within that reasonably short period of time.
For those reasons, we will set aside the orders made by the single Member on 15 September 2023 and substitute them with orders appointing BL as administrator, together with other orders, as we have said, designed to provide both for her maintenance and to protect EL's interests and estate.
Orders
The orders that we will make are therefore these:
1.The Tribunal declares that the represented person, EL, is:
(a)unable by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.
The Tribunal orders:
Administration
1.BL of [address in Western Australia] is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act1990 (WA);
2.BL as plenary administrator is authorised to apply or expend moneys out of the represented person's estate for her reasonable maintenance, necessaries, comforts and benefits;
3.By not later than 7 August 2024, BL as plenary administrator must file with the Public Trustee a set of accounts for examination pursuant to s 80 of the Guardianship and Administration Act 1990 (WA); and
4.The administration order is to be reviewed by 8 November 2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
1 DECEMBER 2023
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