FC
[2012] WASAT 61
•19 JANUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: FC [2012] WASAT 61
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS D TAYLOR (SENIOR MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
HEARD: 19 JANUARY 2012
DELIVERED : 19 JANUARY 2012
FILE NO/S: GAA 3656 of 2011
BETWEEN: FC
Represented person
Catchwords:
Guardianship and administration - Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) of decision made by a member to appoint represented person's wife as plenary administrator - Practice and procedure Application to adjourn hearing - Application by represented person's son from former marriage for appointment of one of represented person's children and one of represented person's wife's children as joint administrators Appointment of wife as sole plenary administrator considered in best interests of represented person Long standing second marriage Wife had assistance from her children in relation to administration
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 17A, s 64, s 64(3), s 68(1)
Result:
Appointment of administrator confirmed
Category: B
Representation:
Counsel:
Represented person : N/A
Solicitors:
Represented person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
JFC, the represented person's son, applied for a review of the determination of the Tribunal, when constituted by a single member, by a Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA). In the determination which was the subject of the review, the Tribunal had appointed the represented person's wife as his plenary administrator. In the review, JFC sought the appointment of either himself or his sister and one of the represented person's wife's children as joint administrators of the estate of the represented person.
On the morning of the review hearing, JFC advised the Tribunal by email that he would not be attending, and, effectively, sought an adjournment to a later date. The Tribunal considered, and declined, the application for adjournment for four reasons:
•JFC did not provide details as to why he was unfit to attend the hearing;
•the evidence that JFC proposed to present, which appeared, at its highest, to be only marginally relevant, was, he said, in his sister's possession, not his, and his sister did not attend the hearing;
•the represented person, his wife and her children had made themselves available to attend the listed review hearing; and
•it was not in the represented person's best interests to have to return to the Tribunal for a further hearing.
In considering the review of the appointment of the represented person's wife as plenary administrator, the Full Tribunal determined that her appointment as sole administrator was the correct and preferable decision and in the represented person's best interests. The Tribunal was satisfied, on the medical evidence, that the represented person was a person for whom an administration order could and should be made, due to the onset of dementia. The Tribunal considered that, as the appointment of the represented person's wife accorded with his wishes, and as, with the assistance of her children, she had appropriately fulfilled the tasks involved as administrator, it was appropriate to confirm her appointment, rather than the alternative put forward by JFC for joint administration.
While noting that the review by the Full Tribunal involved a fresh determination of the matter (a hearing de novo), rather than a review of the process before the member, the Tribunal rejected JFC's contention that he and his sister were not treated fairly by the member.
The Tribunal gave an oral immediate decision. The Tribunal's reasons, taken from the transcript and edited in minor respects for clarity, were as follows.
Introduction
This hearing is in relation to an application brought by JFC under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) to review a decision made by a single member of the Tribunal on 10 October 2011 appointing EMC, FC's wife, as his plenary administrator.
Adjournment application
Notice of the hearing today was sent to all interested parties over two months ago including, in particular, JFC.
At the hearing today both FC and EMC have attended together with five of EMC's children. At 9.19 am today the Tribunal received an email from JFC as follows:
I regret to inform you that I am unwell today and cannot attend the 10 am Tribunal. I have a doctor's appointment booked for tomorrow and will be requesting a certificate.
Before the hearing commenced this morning we requested Judge Parry's associate to telephone JFC to find out whether he would be able to participate in the hearing by telephone. We were informed that JFC was not at the telephone as he was taking a walk and he was subsequently telephoned again and we heard from him at the commencement of the hearing.
JFC, in effect, requested that the hearing should be adjourned to a later date because he is unwell and in order to enable him to present evidence. He did not give a satisfactory explanation as to the nature of his illness or condition and when I asked him what evidence or information he wished to present in the matter he indicated, firstly, that it was evidence or information not in his possession but in the possession of his sister, AMG, and that, secondly, it related to issues to do with their reputation.
JFC terminated the telephone conversation. We have considered JFC's application for an adjournment and have asked the other participants for their views in relation to it. We decline the application for an adjournment of the hearing for the following four reasons.
Firstly, JFC has not given any details as to why he is unwell. He was able to converse with the Tribunal over the telephone and appeared to be well enough to do that.
Secondly, the evidence that JFC said that he proposed to present in this matter was not in his possession, but rather in his sister's possession. The Tribunal gave notice of this hearing to JFC's sister, AMG, however she has not attended the hearing today. The Tribunal has attempted to telephone AMG on her mobile number on a number of occasions during the hearing this morning, but that number was not answered. Furthermore, AMG participated actively in the hearing before the Tribunal on 10 October 2011 and in particular appeared at (T:24, 10.10.11) of the transcript of hearing to accept the provisional view as expressed by the member that an administrator order should be made in favour of appointing EMC. In particular, at the same page of the transcript of hearing, AMG indicated that she had no other concerns.
Furthermore, in relation to the evidence that JFC indicated that he would wish to present and which he said was in AMG's possession, the evidence in our view would be, at its highest, of only marginal relevance to a proper determination of whether or not an administrator order should be made in this case, and, if so, who should be appointed as the administrator.
The evidence that JFC referred to does not go to whether or not EMC should be the administrator and, in particular, does not question her capacity or ability to discharge the duties of an administrator.
Thirdly, in determining an application for an adjournment, the Tribunal is required to balance fairness to all parties. In this case each of EMC's children, who are present, have made arrangements to be available, including some to be available from work and in the case of one of EMC's children, PJT, to be here from Queensland. PJT is returning to Queensland on Sunday.
Fourthly, in applications under the GA Act the Tribunal is required by s 4 of the GA Act to observe the principle that the primary concern of the Tribunal is to be the best interests of a represented person. In this case we are satisfied that it would not be in the best interests of FC for there to be an adjournment. There have already been two hearings before the Tribunal and this is the third. FC is an elderly gentleman and we consider that it certainly would not be in his best interests to have to return for a further hearing.
Having regard to all of these circumstances, we decline the application for an adjournment and are in a position to now hear and determine the application for review.
Application for review of the appointment of EMC as plenary administrator for FC
This proceeding is an application brought by JFC under s 17A of the GA Act, for a review by a Full Tribunal of the determination of the Tribunal constituted by a single member, Senior Sessional Member Ms H Leslie, on 10 October 2011 appointing EMC as plenary administrator of the estate of the represented person, FC, with all the powers and duties conferred by the GA Act.
The orders that were made on 10 October 2011 were as follows:
1.[EMC] is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The administrator is authorised to expend up to a total amount of $1000 per annum on gifts on behalf of the represented person.
3.The enduring power of attorney dated 1 November 2010 by which [FC] appointed [AMG] and [JFC] to be his attorneys is revoked.
4.The administrator is authorised to utilise funds of the represented person for the maintenance, necessities, comforts and benefits of the represented person and his spouse, the administrator, to the extent that in the discretion of the administrator, having regard to the extent of the represented person's estate, is considered fair and reasonable.
5.The administrator is directed to provide to [CMW] and [AMG] copies of the annual accounts to be sent to the Public Trustee each year.
6.This order is to be reviewed by 10 October 2016.
In his application under s 17A of the GA Act, JFC expressed the reasons for the making of his application as follows:
As [FC's] son and daughter we feel we were not treated fairly by the magistrate whose decision resulted in the Public Advocate's recommendation being overturned. At the beginning of September we requested transcripts of two previous hearings. We were unaware of the nature of these hearings. Approval (and subsequent apologies for the long delays) have very recently been given to release these transcript, but we are still waiting on the administrative processes to release these documents to us.
There may also be matters in these transcripts relevant to this appeal and we hope to receive them soon.
In terms of the orders sought from the Tribunal in the application, JFC said:
We would like the State Administrative Tribunal to reconsider the order made on 10 October 2010 [sic 2011] appointing [EMC] as plenary administrator of our father's estate and uphold the recommendation made by the Public Advocate to appoint one family member from each of the [C] and [T] families as joint administrators of our father's estate.
We note that although in the reasons for the bringing of the application and in the orders sought as expressed in the application under s 17A of the GA Act, JFC referred to both himself and his sister, AMG, as having brought the application. AMG is not identified as an applicant and did not sign the application. Furthermore, it appears from the transcript of the hearing on 10 October 2011 that AMG accepted what was then a provisional view expressed by the member that EMC should be appointed as plenary administrator for FC. This is particularly apparent at (T:24, 10.10.11) where AMG said that she had 'no other concerns'. We would also note that, although AMG, as an interested person, was given notice of the hearing today, she has not attended the Tribunal, and during the hearing the Tribunal attempted to contact AMG on her mobile telephone number, but was unsuccessful in doing so.
We will return at the end of these reasons to the reasons expressed by JFC in the application for the making of the application.
Medical evidence
FC is a gentleman almost 86 years of age and a pensioner who lives together with his wife, EMC, in a lease for life villa in a retirement village in Applecross. The medical evidence before the Tribunal in the form of a report by Dr EJ, consultant geriatrician at Fremantle Hospital, is that FC has 'dementia of moderate severity' with his presentation being consistent with Alzheimer's disease.
Dr EJ also expressed the opinion that:
[FC] has significant short term memory difficulties with visiospatial tasks, difficulties with word generation and appears to be developing dyspraxia that is making his day to day function more difficult.
Relying on this assessment by Dr EJ, Dr JT has expressed the opinion in a medical report in the form of a doctor's guide to the Tribunal that FC is incapable of making reasonable decisions in relation to his financial affairs.
FC's financial position
According to an estate information form lodged by EMC as the plenary administrator appointed on 10 October 2011 with the Public Trustee, FC's estate consists largely of a superannuation entitlement and term deposits of approximately $50,000.
FC's annual income is approximately $33,650 from pension, superannuation and interest, and his annual expenses are approximately $30,000.
FC's family
FC has two children from an earlier marriage, namely, JFC, the applicant in this matter, and AMG, who was the applicant for an administration order in the matter heard on 10 October 2011. EMC has six children from an earlier marriage of whom five have attended this hearing today. They are the members of the 'T family' referred to in the application by JFC.
FC and EMC have been married for approximately 25 years.
Consideration of application for review
There are three principal issues for determination by the Tribunal in this proceeding, which is in the nature of a hearing de novo, that is, a fresh determination of the matters in issue. The application by JFC does not contest the decision of the member to revoke an enduring power of attorney dated 1 November 2010. Rather, JFC seeks the review of the decision to appoint EMC as plenary administrator for FC.
Can an administration order be made?
The first issue for determination is whether an administrator can be appointed. Section 64 of the GA Act states that:
… 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.
We are satisfied, on the medical evidence of Dr EJ and Dr JT, to which we have referred, that FC 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 is in need of an administrator of his estate.
Is there a need for an administration order and, if so, should it be a limited or plenary order?
The second issue for determination is whether there is a need for an administration order and, if so, whether the order should be a plenary administration order. We are satisfied that there is a need for the appointment of an administrator and that the order should be a plenary order. Clearly, there needs to be someone to be able to speak on behalf of FC to, among other entities, Centrelink, the superannuation fund and the retirement complex, and to arrange for banking.
We consider that there is no less restrictive alternative or less restrictive means of meeting FC's needs then the appointment of a plenary administrator with the powers as expressed in the member's decision and orders of 10 October 2011.
Who should be appointed as administrator?
The third issue for determination, which is the key issue in this matter, is who should be appointed as plenary administrator for the estate of FC. Since FC and EMC's marriage 25 years ago, EMC's six children and FC's two children appear to have generally gotten on reasonably well. In recent times, some friction has arisen between them. Nevertheless, AMG appears to be in regular contact and on good terms with both her father and EMC, and, in particular, most recently visited FC and EMC at Christmas. That visit was welcomed by FC and EMC.
In relation to EMC, we note, firstly, that the transcript of 10 October 2011 reflects, to some extent at least, that EMC's appointment is consistent with FC's wishes. At (T:36, 10.10.11) FC said to EMC, 'You're virtually doing the same now', in relation to the tasks of administering his estate. EMC replied, 'We are doing it now, yes'.
Section 4(2) of the GA Act requires the Tribunal to seek to ascertain the views and wishes of the person concerned and s 64(3) of the GA Act requires the Tribunal to take into account, as far as possible, the compatibility of the proposed appointee with the person in respect of whom the application is made and the wishes of that person.
It is clear to the Tribunal, having regard to the transcript of 10 October 2011 and our observations of FC today, that the appointment of EMC as his administrator accords with his wishes and that there is certainly a high compatibility of EMC as the administrator. Their marriage, while a second marriage for both of them, is an enduring and longstanding marriage in which clearly they have been devoted to one another for many years. EMC has continued to support FC through the development of dementia and continues to do so now with the active support of her children.
Furthermore, since the appointment of EMC as the administrator, she has complied with the requirements of the Public Trustee in relation to the filing of the form to which we have referred outlining FC's financial affairs. We are satisfied, based on the evidence that we have, that EMC, with the assistance of her children, has appropriately fulfilled the tasks of administrator.
When speaking to JFC over the telephone, the Tribunal asked him to outline the evidence that he would wish to give in relation to this matter. He indicated that none of that evidence is in his possession, but rather is with his sister, AMG, and that the evidence related to issues to do with his reputation. None of the evidence that he indicated that he would wish to present and in his sister's possession related to EMC's capacity or ability to perform the functions of administrator in a satisfactory manner.
Section 68(1) of the GA Act relevantly provides:
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.
For the reasons that we have given, we are satisfied that EMC will act in the best interests of FC as administrator and that she is suitable to act as the administrator of the estate of FC. EMC obviously has indicated that she is willing to act and has been acting for the last three months in that capacity.
We have given consideration to the alternative put forward by JFC in his application, for there to be a joint administration involving either himself or his sister and one of the children of EMC. We do not prefer that option and consider the appointment of EMC as sole plenary administrator to be preferable and in the best interests of FC for the following reasons.
Firstly, the alternative arrangement does not reflect FC's wishes as the Tribunal is able to discern them and as expressed earlier.
Secondly, we find that EMC, as FC's longstanding spouse and carer, is more compatible with FC than the children of FC and EMC jointly.
Thirdly, the current arrangement is working well on the evidence available to us, and, as indicated earlier, JFC did not foreshadow any evidence that would call into question EMC's capacity, nor which would support the appropriateness of the appointment of a child of each of FC and EMC as joint administrators.
Fourthly, as noted earlier, there has been some tension in recent times in between the children of FC and EMC. It would not be, in our view, in the best interests of FC for those tensions to be given an opportunity to manifest in the form of a joint administration as proposed by JFC.
JFC's reasons for seeking review
Finally, we return to the reasons expressed by JFC in his application to the Tribunal for a review. JFC gave essentially two reasons for seeking a review. Firstly, he considered that, 'We were not treated fairly' by the member. Secondly, JFC considered that the decision that was made by the member to appoint EMC as the administrator was contrary to 'the recommendation made by the Public Advocate to appoint one family member from each of the C and T families as joint administrators of our father's estate'.
The application before the Tribunal is, as we have said earlier, an application for a hearing de novo. We are not in this proceeding reviewing the process before the member, but rather making a fresh decision as to what is the correct and preferable outcome in the circumstances of this case. For reasons that we have given we are satisfied that the correct and preferable outcome is the appointment of EMC as sole administrator with the powers set out in the orders of 10 October 2011.
However, we have considered the contention of JFC that he and his sister were not treated fairly before the member. We consider that JFC's contention is entirely unfounded having read the transcript of the hearing on 10 October 2011. At the hearing on 10 October, the member properly engaged all parties in seeking to come to a decision that is in the best interests of FC. In particular the member engaged both, or sought to engage both, JFC and AMG. At (T:22, 10.10.11), having discussed at length the appropriate outcome with AMG, AMG then said to JFC, 'If that's the way that these guys want it how do you feel?', and JFC replied, 'No comment'. At (T:24, 10.10.11) AMG indicated that she had no other concerns other than those that had been discussed in relation to the appointment of EMC. The member then asked JFC, 'Is there anything that you want to raise?', to which JFC replied, 'No comment'. We are satisfied that procedural fairness was afforded to both JFC and AMG at the hearing.
JFC's contention that the appointment of joint administrators would involve upholding the recommendation made by the Public Advocate is misconceived. The Public Advocate, in the report to which we have referred earlier, did not make such a recommendation. Rather, the Public Advocate said that, at the hearing on 10 October 2011, it 'would not oppose' that proposal, which had, in fact, been made by AMG in her application for the appointment of an administrator.
Conclusion
We are satisfied that, for the reasons that we have given, the appropriate decision in this case is to confirm the decision made by the member on 10 October 2011.
Orders
We make the following orders:
1.The decision made by Senior Sessional Member H Leslie on 10 October 2011 in GAA 3115 of 2011 is confirmed.
2.[EMC] is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
3.The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.
4.The administrator is authorised to utilise funds of the represented person for the maintenance, necessities, comforts and benefits of the represented person and his spouse to the extent that in the discretion of the administrator it is appropriate, having regard to the extent of the represented person's estate.
5.The administrator is directed to provide to [CMW] and [AMG] copies of the annual accounts to be sent to the Public Trustee each year.
6.This order is to be reviewed by 19 January 2017.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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