FF and Of
[2008] WASAT 288
•9 DECEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: FF and OF [2008] WASAT 288
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 3 SEPTEMBER 2008
DELIVERED : 9 DECEMBER 2008
FILE NO/S: GAA 1760 of 2008
GAA 1761 of 2008
BETWEEN: FF
Applicant
AND
OF
Represented Person
Catchwords:
Guardianship and administration - Legal costs of proceedings - Should the legal costs of a party be paid from the estate of the represented person - Gifts from represented person's estate - Charitable payments from the represented person's estate
Legislation:
Guardianship and Administration Act 1990 (WA), s 16(4), s 64(1), s 71(5), s 72(3), s 87(5), s 90
Result:
The application order is amended
The application for costs is dismissed
Category: B
Representation:
Counsel:
Applicant: N/A
Represented Person : N/A
Solicitors:
Applicant: N/A
Represented Person : N/A
Case(s) referred to in decision(s):
AI and OF [2008] WASAT 87
KD [2008] WASAT 109
LC and JS [2007] WASAT 127
MO and JB [2008] WASAT 228
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Public Trustee had been previously appointed the administrator for OF, an 87 year old woman who resided in a nursing home. Prior to the appointment of the Public Trustee her son, FF, had managed her estate.
In appointing the Public Trustee the Tribunal had found that FF was not suitable to manage her estate and had questioned the appropriateness of certain transactions he had made.
Subsequent to the decision to appoint the Public Trustee as the administrator for OF, FF sought a review of the order.
As part of the review application FF asked the Tribunal to approve the payment of his legal costs in respect of the administration proceedings, from his mother's estate. The legal costs amounted to $3,450.
FF also asked the Tribunal to direct the administrator to make a cash gift from OF's estate to her grandson (FF's son) in recognition of his marriage and to provide OF with a cash allowance to enable her, amongst other things, to give a weekly donation to her church.
The Tribunal decided not to approve the payment of FF's legal fees from OF's estate. The Tribunal had previously found that he had not acted in OF's best interests when managing her financial affairs and it was therefore not considered appropriate for his mother to meet his legal fees from proceedings at which the Tribunal had discontinued his involvement in her estate.
In respect of the gift to her grandson, there was support at the hearing for the gift to be made but disagreement at what the amount of the gift should be. The Tribunal ultimately decided to direct the administrator to make a gift of $1,000 to the grandson as it was the same amount given to a granddaughter (FF's daughter) on her marriage.
The Tribunal agreed with the administrator that small cash purchases for OF were best arranged through FF who would seek reimbursement from the administrator. The Tribunal decided to authorise the administrator to make charitable payments from the estate of OF to a maximum amount of $500 per annum to deal with her wish to make weekly donations to her church.
Background
These reasons relate to an application by FF, son of OF, for leave to review the administration order made by the Tribunal on 20 December 2007 (2007 proceedings).
The order made on 20 December 2007 appointed the Public Trustee as the plenary administrator for OF. The reasons for that decision, which were delivered on 18 April 2008, are to be found at AI and OF [2008] WASAT 87 (AI).
OF is an elderly woman of 87 years who resides in a nursing home.
The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
The parties who attended the hearing are FF, OP and AI (grandchildren of OF) and representatives of the Public Trustee.
Leave is granted pursuant to s 87(5) of the GA Act.
The Tribunal's powers on review of an administration order
Upon review of an administration (or guardianship) order the Tribunal may, as it considers necessary in the best interests of the represented person (in this case, OF), confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it (s 90 of the GA Act).
OF's capacity
The Tribunal has been provided with a report from the nurse manager of the aged care facility in which she resides. The report states that OF is unable to follow all instructions, is confused, requires assistance with all her activities of daily living and requires direction to and from her room.
It is common ground that OF remains a person for whom a declaration can be made under s 64(1) of the GA Act that she is in need of an administrator.
The application for review of an administration order by FF
There are a number of elements to the application by FF. He firstly seeks to have his legal costs from the original application for administration paid from the estate of OF. Secondly, he asks that the administrator be directed to pay a gift on the marriage of his son from the estate of OF and finally he requests that OF be given a weekly cash allowance so that she is able to purchase small items herself and make donations to her church without needing to ask the administrator.
The application for legal costs
At the hearing for the 2007 proceedings, FF was legally represented. So too were OP and AI.
The legal costs of FF amounted to $3,450 and he has applied to have them paid from the estate of OF pursuant to s 16(4) of the GA Act which gives the Tribunal a discretion to pay the costs of a party if it is satisfied that the party acted in the best interests of the person for whom the application was made.
FF puts his case in this way:
Reimbursement on expenses previously incurred in appearing before this tribunal. In the matter of reimbursement for my mother's legal expenses in appearing before this tribunal previously relating to my mother's financial affairs placed in the hands of the Public Trustee. That matter was brought before the State Administrative Tribunal in the application of her grandchildren, [OP and AI] whom are present here today.
I felt because I have no previous experience in the procedures, I have never appeared [before] the State Administrative Tribunal, and on these matters that I needed legal advice and assistance so my mother could have the best representation through me, I believed then, and with respect still believe, that I had the best interest of my mother more at heart than anyone else, and because of that decision, nothing has changed between my mother and me.
The legal representation and advice cost me $3450. I asked [sic] that I be reimbursed that amount out of my mother's estate. (T:12)
OP and AI, who were the applicants in the original administration proceedings, do not support the application of FF. They say that in appointing the Public Trustee as the administrator for OF the Tribunal found that FF was not suitable to manage her financial affairs. They also say that their legal costs were greater than the amount sought by FF but that they are willing to bear the cost as they made the application for administration in what they perceived to be the best interests of OF.
The proper approach to costs to an application under s 16(4) of the GA Act has been discussed in a number of cases (see, for example, KD [2008] WASAT 109 (KD) and MO and JB [2008] WASAT 228). In KD the Tribunal said the following at [24] [26]:
The test in s 16(4) is apparently very wide: a party need only satisfy the Tribunal that they have acted in the best interests of the person whom the proceedings concern. It hardly need be said that the great majority of parties in these proceedings have only the best interests of their close family member, or whomever the proceedings concern, at heart.
Section 16(4) must be read in light of s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which provides the starting point that, in proceedings before the Tribunal, parties are to bear their own costs. It is relevant that s 16(1) of the GA Act, which was repealed on proclamation of the SAT Act, provided the same starting point in that parties to proceedings under the GA Act were to bear their own costs unless otherwise provided, including by s 16(4).
…
Something more than merely acting in the best interests of the person concerned is required before the Tribunal will order a party's costs be paid by, or out of the estate of, the person whom the proceedings concern.
It is relevant to the case before the Tribunal that FF had proposed himself to be the administrator for OF (or remain her attorney under an enduring power of attorney) in the 2007 proceedings but that the Tribunal did not find him suitable to act and instead appointed the Public Trustee (see AI at [139] [146]).
In particular the Tribunal found that the dispute between FF and OP and AI clouded all of their judgments when considering the estate of OF and how it should be managed in her best interests. The Tribunal also found that the management of OF's estate by FF (he had arranged for various assets of OF to be held jointly with him) was inappropriate and had raised sufficient doubt in the minds of the Tribunal members to convince them that the arrangement should not continue (see AI at [116] [118] and [140]).
It is not, in my view, appropriate in these circumstances to look favourably upon the application by FF for his legal costs to be paid by OF. It seems clear enough that his perception of the best interests of OF did not accord with that of the Tribunal when they rejected his submission that he should continue to play a role in the management of her estate.
In any case, had the Tribunal not so found, then given what I said in LC and JS [2007] WASAT 127 at [31] [57], I would not have allowed the application for costs given that the 2007 proceedings did not in my view fall within the circumstances described at [56] which refers to particular situations where legal assistance is essential for the application to proceed in the best interests of the person. It is not sufficient that a party have little or no experience in these sorts of proceedings as that is the position of the majority of parties when an application is heard. The Tribunal's processes from application to hearing, support inexperienced applicants and parties to attend and present their case.
I therefore dismiss the application by FF for his legal costs of the 2007 proceedings be paid from the estate of OF.
The application for gifting
FF states that OF recently attended the wedding of his son (PF). She had previously given gifts to her children when they married and she expressed a wish to give her grandson a wedding gift.
FF does not propose what amount the gift should be.
OP and AI support the making of the gift.
When asked what the amount of the gift should be, AI states that she was given $2,000 by OF when she married 15 years ago. At that time, however, she says her grandfather (the spouse of OF) was still alive, the grandparents were still working and she (AI) and OP were actively supporting them.
OP says that as far as he can remember he was given a similar amount when he married.
AI says, further, that when FF's daughter was married OF spoke to her about a gift and $1,000 was mentioned which OF is reported to have said was a lot and that she did not have much money.
AI submits that were OF in a position to make a gift today, she would likely suggest a similar amount, not wanting to favour one person over another and not having a sense of inflation and adjusting the size of gifts over time.
FF disputes this and states that OP and AI received more than they say. In a written submission to the Tribunal FF states that each received 'something like' $10,000 from their grandparents. He says that his daughter did not receive a large gift because at the time he was involved in managing his parents' funds and did not consider a large gift appropriate in those circumstances.
Under s 72(3) of the GA Act, an administrator is not permitted to make a payment or disposition of a charitable, benevolent or ex gratia nature without the authority of the Tribunal.
Under s 71(5) of the GA Act, the Tribunal may take a liberal view of the best interests of the represented person (OF, in the matter before me), when making a determination in respect of a payment or disposition under s 72(3) of the GA Act.
It is common ground that OF would, if capable, make a gift on the marriage of her grandson. I accept this is the case and that it is in OF's best interests that such a gift be made.
The difficulty is in deciding what the amount of the gift should be, given the limited and conflicting evidence presented by the parties.
In all the circumstances I find that a gift of $1,000 is the appropriate amount to be made from the estate of OF for her grandson, PF. It is at least agreed by the parties that FF' s daughter received $1,000 upon her marriage and I accept that as an elderly person OF would have considered a similar amount to be suitable and that she would likely not take into account any variation in the purchasing power of gifts when made at different times.
I therefore direct the administrator to make a gift of $1,000 from the estate of OF to her grandson, PF, in recognition of his marriage.
The application for a weekly allowance for OF
FF says that OF needs cash funds ('pocket money') to enable her to attend church and to allow her to participate in activities in the nursing home and to buy sweets.
The administrator has advised FF that the nursing home does not have the facility to enable cash funds of residents to be managed by staff. It is suggested by the administrator that on a monthly basis, FF retains the receipts from purchases made for OF and seek reimbursement from her estate.
This it seems to me is a sensible and practical suggestion.
FF says, however, that when OF attends church every Sunday, it is difficult for her to make a small money offering because she does not have access to cash and he is unable to have the amount reimbursed from the administrator because a receipt is not available.
The administrator submits that the weekly donation at church falls to be considered under s 72(3) of the GA Act in that it is a charitable payment (see above).
The way out of this albeit small problem is to make a provision for charitable payment on an annual basis from OF's estate.
I therefore authorise the administrator to make charitable payments on behalf of OF up to a total amount of $500 per annum.
In my view, this should account for the weekly donation OF makes at her church (through FF) and I would expect the administrator to accept at face the representations made by FF as to the donations made given that receipts are not available.
Orders
Administration order made on 20 December 2007 is amended and now reads as follows:
1.The Public Trustee of [address] is appointed plenary administrator of the estate of [OF] with all the powers and duties conferred by the [GA] Act.
2.The enduring power of attorney dated 27 January 2007 by which [OF] appointed [FF] to be her attorney, be revoked.
3.The administrator is directed to pay the sum of $1,000 from the estate of [OF] to her grandson [PF] as a gift in recognition of his marriage.
4.The administrator is authorised to make charitable payments of up to $500 per annum on behalf of [OF].
5.The order is to be reviewed by 20 December 2012.
Application for costs is as follows:
1.The application by [FF] for his legal costs, in respect of the application for administration heard and determined by the Tribunal on 20 December 2007, to be paid from the estate of [OF] pursuant to s 16(4) of the GA Act, is dismissed.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
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