ET
[2012] WASAT 3
•6 JANUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: ET [2012] WASAT 3
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 4 OCTOBER 2011
DELIVERED : 6 JANUARY 2012
FILE NO/S: GAA 2545 of 2011
BETWEEN: ET
Represented person
Catchwords:
Guardianship and administration Administration Requirement to submit accounts to Public Trustee Tribunal unable to give retrospective approval to payments made as gifts When considering payments made as gifts Tribunal may take a liberal view of best interests of represented person Best interests Best interests and s 70 of Guardianship and Administration Act 1990 (WA) No need for administrator Informal financial arrangements permitted to operate Administration order revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(a), s 4(2)(c), s 64, s 64(1)(a), s 64(1)(b), s 68, s 70, s 71, s 71(5), s 72(3), s 80(1), s 80(3), s 80(4), s 80(6), s 90
Guardianship and Administration Regulations 2005 (WA), r 4(1), r 4(2)
Result:
Administration order revoked.
Category: B
Representation:
Counsel:
Represented person : N/A
Solicitors:
Represented person : N/A
Case(s) referred to in decision(s):
EH [2008] WASAT 222
FS [2007] WASAT 202
MM [2001] WAGAB 2
Perpetual Trustees WA Limited and The Public Trustee [2009] WASAT 253
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
A son of an elderly indigenous woman was appointed the administrator of her estate in 2008.
In 2011 the Public Trustee sought a review of the order on the basis that the son had not properly accounted for the woman's pension income and a compensation payment of $13,000.
The Public Trustee proposed that the son be removed as administrator and that he be appointed with a direction that the expenditure of the compensation monies be investigated and any monies due to the woman be recovered.
The son said that the majority of the compensation monies had been used to purchase a motor vehicle to transport his mother to events and medical appointments, and payments had been made as gifts to another son and to a daughter. The son said that his mother had agreed to the transactions and he had been obliged to obtain her views and wishes.
The son said he found it difficult to produce financial statements to the Public Trustee but maintained that his mother's pension was used for her needs.
The Tribunal found that the woman was well cared for by her family and that without that care she would need to be placed in a nursing home.
The Tribunal also found that the son had a genuine misunderstanding about the responsibilities and limitations of his role as his mother's administrator.
After considering all the facts and evidence in the case the Tribunal was not satisfied that an administration order was currently needed and therefore the informal financial arrangements should be permitted to operate.
The administration order was revoked.
Background
ET (represented person) is a 68yearold indigenous woman who suffers from dementia and is in the care of her family.
On 30 May 2008 the eldest son of the represented person (BT) was appointed her guardian and administrator. The orders were set to be reviewed in five years.
On 19 August 2011 the Public Trustee made an application for review of the administration order.
The application was heard on 4 October 2011 and the decision reserved.
The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
The application by the Public Trustee
Under s 80(1) of the GA Act, an administrator shall submit accounts to the Public Trustee unless exempted by the Public Trustee from doing so.
Under r 4(1) of the Guardianship and Administration Regulations 2005 (WA) (Regulations), an administrator must lodge with the Public Trustee accounts in relation to an estate administered by the administrator set out in a form approved by the Public Trustee within four weeks of the approved due date. Regulation 4(2) requires an administrator to retain documents relating to the financial transactions of the estate and submit them to the Public Trustee if so required. It is an offence punishable by a penalty of $1,000 if an administrator does not comply with r 4(1) or r 4(2) of the Regulations.
BT, as the administrator of the represented person's estate (administrator), has not been exempted by the Public Trustee from the requirement to lodge accounts.
A current practice of the Public Trustee is to require the filing of accounts by administrators in the prescribed form on an annual basis from the date of appointment. At the time of the application for review of the administration order, the administrator had been required to lodge three sets of accounts:
•account 1 for the period 30 May 2008 to 29 May 2009
•account 2 for the period 1 June 2009 to 31 May 2010; and
•account 3 for the period 1 June 2010 to 31 May 2011.
The administrator lodged those accounts on 10 July 2009, 30 June 2010 and 4 August 2011 respectively.
Under s 80(3) of the GA Act, the Public Trustee shall examine the accounts and may allow them, disallow any amount paid, determine that any amount or asset has been omitted, or that any loss has occurred. Where the Public Trustee disallows an amount paid or determines that an amount or asset has been omitted or that any loss has occurred, and determines that there has thereby been a loss to or diminution of the estate, the administrator is liable to the estate for such loss or diminution except to the extent that the Public Trustee relieves him of that liability (s 80(4) of the GA Act).
In respect to accounts lodged by the administrator, the Public Trustee states in a written submission to the application dated 16 August 2011 (pages 1‑2):
… The administrator has submitted incomplete and poorly executed set [sic] of annual accounts. Account number 1 was not allowed due to a number of concerns by the examining officer. The Public Trustee wrote to the administrator on 25/11/2009 and asked the administrator to respond to the 8 questions on the letter. [see below]
The administrator responded to the Public Trustee's letter on 13/01/2010. [see below]
During the examination of account number 2, the composite figures seem unrealistic, not estimates nor calculated from the bank statements.
It has also come to the attention of the Public Trustee that the represented person's carer [GF, daughter‑in‑law of the represented person], has access to [the represented person]'s bank account and withdraws monies on her behalf.
…
The administrator has not retained any receipts or supplied supporting documentation for any of the large number of withdrawals from the represented person's bank account.
…
The Public Trustee has been unable to allow accounts number 1, 2 and 3. …
During his examination of the accounts the Public Trustee found the following (page 2 of written submission of 16 August 2011):
During the examination of account number 3, it was noted that a bank deposit was made to the represented person's bank account by Redress of $13,000.00. The administrator has withdrawn two amounts of $5,000.00 and $6,000.00 on the 12/07/2010. The administrator has submitted a letter with account number 3, requesting that the Public Trustee approve certain transactions. I am of the understanding that these transactions have already been effected without the approval of the Tribunal. The reported items are as follows:-
•Motor vehicle[.] $3,500.00 It is unclear from my conversation with the administrator on the [sic] 25/07/2011 whose name the vehicle is registered in.
• $2,000.00 was given to 'brother' [sic] in cash.
• $2,200.00 was given to 'sister' [sic] by bank deposit.
…
The administrator commented in his letter of 13/01/2010 [see below] that birthday and Christmas presents were brought [sic] on behalf of the represented person. There is no provision for gifting in the Administration Order.
…
The submission of the Public Trustee is straightforward; he no longer has confidence in the administrator and, were the Tribunal to appoint another person as the administrator of the represented person's estate, then he would expect the Tribunal to instruct that person to recover any monies due to her.
Section 80(6) of the GA Act states that the Public Trustee shall issue a certificate as to any loss or diminution for which an administrator is liable under s 80(4) of the Act (see above), taking into account any relief allowed by the Public Trustee under that subsection, and also states that the Public Trustee may recover the loss or diminution from the administrator or his estate for the benefit of the estate of the represented person as a debt due in a court of competent jurisdiction.
The usual process is for the officer dealing with a represented person's estate to make a recommendation to the Public Trustee about the issuing of a certificate of loss for a final determination by him. This process would normally be undertaken prior to the making of any application for review of an administration order, but this has not occurred in the case of the represented person. The representative of the Public Trustee could not say when a decision on this matter would be made by the Public Trustee.
The evidence and submissions of the administrator (son) and other family members
The administrator's evidence is presented in written form and orally in his attendance at the hearing.
The written evidence takes the form of the administrator's responses to the Public Trustee enquiries.
The first of these is a letter from the Public Trustee to the administrator dated 25 November 2009 after account 1 had been filed. The administrator is asked to explain:
•the represented person's Centrelink debt of $2,141.22
•why there are 'so many payments and withdrawals' at service stations, liquor stores and taverns; and
•the frequency of automatic teller withdrawals from other than the represented person's bank.
The administrator is also asked:
•whether any expenses reported on the bank statement are for the benefit of any other person
•who has access to the automatic teller card
•whether the represented person receives care services; and
•the breakdown of the represented person's contribution to household expenses.
The response of the administrator is dated 13 January 2010. The administrator states that he has been advised by Centrelink that the represented person has a pension debt and family benefit debt; she pays for petrol for her doctor's appointments, for funerals and for visiting family; the service station outlets are used for the purchase of bread, milk and other items when the local shops are closed; in respect of liquor stores and taverns, the represented person does not drink but will purchase beverages for visiting family members who repay her in cash the following day; where she lives, there are no automatic tellers for her bank; she purchases birthday and Christmas presents for family members; she receives care from GF (daughter‑in‑law), and that her contribution to household expenses is rent ($158.50), food ($100.00), gas ($50.00), electricity ($50.00), entertainment ($30.00) and excursions ($20.00).
The second of the letters by the administrator to the Public Trustee is dated 3 August 2011 and appears to accompany account 3 filed on 4 August 2011. The administrator states that he has been unsuccessful in locating receipts for the expenditure made for the represented person. He notes that the represented person received $13,000 from Redress WA and then states:
… I in my lack of knowledge did not read the Trustee of WA guidelines, regarding the funds of my mother, [the represented person]. My lack of understanding in [seeking] your permission and approval to purchase items with my mother's funds [sic].
My mother and I thought she had full controll [sic] of her Redress [WA] funds. I purchased with my mother's approval[:]
Motor vehicle $3,500
Brother$2,000 cash
Sister$2,200 bank deposit
The motor vehicle was purchased solely for the purpiose [sic] to take my mother to appointments, funerals, outings.
…
The administrator states that the motor vehicle is registered in his name because '… you've got to actually have a licence to remove the car from the yard.' (T:9, 04.10.11)
In his oral evidence the administrator confirms that he has attempted to find receipts for the represented person's expenditure but without success. As to the use of the Redress WA monies, the administrator states:
… I've actually put it on the table for her, saying, 'What do you want to do with your money?' She even said, 'Oh, we need a car.' There was no‑I never suggested anything to my mother about things. She's put her family first, like all mothers do. She said, 'Is [sic] your sister and brother okay?' I said, 'Yes'. So‑and she was helped by that. (T:7, 04.10.11)
…
But with mum, with anything that goes on‑so wherever mum is‑if it involves mum‑we always talked and aksed [sic] her. Because she's alive and she's got dementia, doesn't mean we exclude her from anything. (T:12, 04.10.11)
…
My mother has got dementia, okay, but she shouldn't be excluded, but she is included in everything because she's the elder in our family. If she says, 'Well, give some person some money', then I do it. That's what I do. I mean, I can't say no to her. (T:13, 04.10.11)
Another response of the administrator to the question of the giving away of the represented person's monies is his submission that Aboriginal people do not view such transactions as gifting, but rather ones of 'sharing' through an extended family system.
The administrator acknowledges that the aggregate of the expenditure noted in his letter of 3 August 2011 is $7,700 and states that $5,000, being the approximate balance of the Redress WA monies, was placed in a savings account in the first instance but has since been expended on:
Food, funerals‑so last year, so‑yes, mainly on funerals and that, and trips and excursions and stuff. … (T:10, 04.10.11)
At the current time the administrator estimates that the represented person has about $300 to $400 in her bank account.
In respect of the use of the represented person's pension, the administrator states that she shares the rent and other household expenses with her carer (GF, a daughter‑in‑law), with whom she lives. The represented person 'mainly buys the food' because she requires particular foods for her health. The administrator states that all expenditure is made by way of a bank keycard '… so it's all documented on bank statements'. (T:16, 04.10.11). The represented person has her own bank account.
GF states that the represented person's fortnightly pension is fully expended.
The administrator makes several submissions as to what is in the represented person's best interests. He states that:
•he did not understand the requirements as to gifting (that gifting requires Tribunal approval ‑ see below);
•he is not very good at completing forms; and
•he will obtain help with the financial accounts.
If an administrator is to remain in place, he proposes himself or, if found not to be suitable, then he proposes YT, a daughter of the represented person. YT consents to her appointment.
It appears that the administrator's principal submission, however, is that the order be revoked. The revocation is put in terms of the Tribunal (and by inference, the Public Trustee) no longer interfering in the family's care of the represented person.
GF puts it in this way:
With [the represented person] being a stolen generation, and things like that, plus her health isn't very good, with all those things, what are the chances of you people just stepping back, letting her have some respect and dignity, and let her family take care of her. (T:23, 04.10.11)
GF submits that the represented person and her family are ' … still having to answer to white people' (T:23, 04.10.11) and that, as she has gifted her money to her children and is now only in receipt of a pension, she should be left alone.
The letter of Dr CW general practitioner dated 27 September 2011
The letter of Dr CW has been submitted by the administrator as evidence of the care the family is providing for the represented person. It is material to my decision and I will therefore quote it in full.
I have been asked to write a report in support of [the represented person]'s review of the administrative [sic] order. The family are of the opinion that [the represented person] has spent the early part of her life having her affairs managed by the state and they feel it is important that she does not have this happening at the end of her life also.
[The represented person] suffers dementia and is cared for by her daughter[-]in[-]law [GF]. The care provided appears to me to be more than adequate and very caring. [GF] makes sure all medication is updated following hospital admission, and brings her for medical review as needed.
[The represented person]'s main diagnosis that require[s] her to be in care is her dementia. As well as this she suffers from cardiovascular disease, and I have included a recent discharge letter from RPH to support this. It is my impression that the care [the represented person] is receiving is quite adequate and have reassured the family that there is no reason that she would be put into a nursing home.
The relevant legislation
When an administration order is reviewed, the Tribunal can confirm, amend or revoke the order, or revoke the order and make another order in substation of it (s 90 of the GA Act). In coming to a judgment about whether orders should be made, the relevant provisions of the GA Act are:
•s 4 which states the principles of the Act;
•s 64 which speaks to the question of whether a person is capable of making financial decisions; and
•s 68 which guides the Tribunal in the determination of who should be appointed administrator.
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.
The represented person's capacity
There is no evidence before me that disputes the finding of incapacity previously made by the Tribunal.
If the represented person was not in the care of her family she would require care in a nursing home.
I am satisfied that the represented person remains a person for whom an administration order could continue to be made. She has a mental disability (her dementia) and by reason of that disability is unable to make reasonable judgments about her estate (s 64(1)(a) of the GA Act).
The Tribunal's decision
The remaining questions before me are whether the represented person continues to be in need of an administrator and if so who should be appointed.
My decision must be made in what I consider to be in the represented person's best interests (s 4(2)(a) of the GA Act).
It is not the case that an administration order will be made simply because a person is incapable of managing his or her estate; a need for an order must be established (s 4(2)(c) and s 64(1)(b) of the GA Act). If it is proposed, as in the case before me, that an order is no longer needed, I must be satisfied on all the facts and evidence that the interests of the represented person will be adequately protected by any informal arrangements (MM [2001] WAGAB 2).
The represented person's estate is very simple; it consists of her pension which, according to her administrator, is fully expended on her care needs.
The represented person received an award of $13,000 from Redress WA. Those funds have been expended in part on the purchase of a motor vehicle and in payments to some of the represented person's children.
I am satisfied that the motor vehicle purchased for $3,500 from the Redress WA monies is used for the represented person's benefit so that she can be taken to various places and appointments. Although, for practical purposes, the motor vehicle is registered in the name of the administrator, it forms part of the represented person's estate.
As for the payments made to two of the represented person's children, these were made without the Tribunal's approval as is required by s 72(3) of the GA Act. The administrator says that he was not aware of this requirement but in any case was able, in his view, to gain the consent of the represented person to the transactions.
I adopt the reasoning in EH [2008] WASAT 222 (EH) (cited with approval in the Full Tribunal decision in Perpetual Trustees WA Limited and The Public Trustee [2009] WASAT 253 at [78] ‑ [84]) that the Tribunal is not empowered to give retrospective approval to payments of the type made to the represented person's children (EH at [22] ‑ [38]).
I accept, however, what the administrator says at face value. There seems to have been a genuine misunderstanding of the powers and limitations of an administrator in his case. I accept also that he honestly believed that he was obliged to obtain the approval of his mother, the represented person, however affected by the dementia her judgment might have been.
There is no evidence to indicate that the administrator himself received a payment of the type made to the other son and daughter from the represented person's Redress WA monies.
I note that, had the making of the payments to the represented person's children come before the Tribunal as a proposal for consideration, then pursuant to s 71(5) of the GA Act, the Tribunal would have been entitled to take a liberal view of the best interests of the represented person.
I accept the reasoning of the Full Tribunal in FS [2007] WASAT 202 (FS), as it refers to recurrent expenditure from a person's estate that provides a benefit to the person's extended family in addition to the represented person themselves. In particular, that, without limiting the reach of s 72(3) of the GA Act (see above), the provisions of s 70 of the GA Act must be considered in the making of financial decisions in the represented person's best interests. Relevantly (as in FS at [138]):
•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: (s 70(2)(c));
•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: (s 70(2)(e));
•in such a way as to maintain any supportive relationships the represented person has: (s 70(2)(g)); and
•in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment: (s 70(2)(h)).
It appears to me from the evidence that in a practical sense the represented person's pension income is pooled with other family members' income to meet the family's living costs. It may well be that her contribution to family costs extends at times to beyond those of the immediate household where she resides. It may also be the case that the represented person has the benefit of other family members' income in the same manner. There is nothing inherently wrong with this in a supportive family setting, as long as the represented person ultimately receives the value of her income after taking into account a judgment of her 'best interests' in the way suggested by the Full Tribunal in FS in its interpretation of s 70 of the GA Act.
It is in this context that the report of Dr CW assumes particular importance. The assessment of Dr CW, which I accept, is that the represented person is well cared for by GF and other family members. It is clear that without the level of care the represented person receives from her family she would have to be placed in a nursing home. I can infer from the doctor's assessment that the represented person's nutritional and medical needs are being met. There is no evidence of neglect or deprivation of the necessities of life.
I am therefore satisfied that the expending of the represented person's pension meets her particular needs and enables her to continue to be cared for at home which is clearly in her best interests.
When I look at all the facts and evidence in this case I am not satisfied that an administration order is currently needed. I should therefore permit the informal financial arrangements to operate. Of course if the particular circumstances of the represented person should change then it might become necessary for an order again to be made for the protection and management of her estate.
In the current circumstances, however, I am satisfied that I should revoke the administration order made on 30 May 2008.
Order
The administration order made on 30 May 2008 is revoked.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
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