GB and BM
[2009] WASAT 186
•23 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GB and BM [2009] WASAT 186
MEMBER: MS J STANTON (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 23 SEPTEMBER 2009
FILE NO/S: GAA 874 of 2009
GAA 651 of 2009
BETWEEN: GB
Applicant
AND
BM
Represented Person
Catchwords:
Guardianship - Administration - Costs
Legislation:
Guardianship and Administration Act 1990 (WA), s 16(4)
Result:
The application for costs dismissed
Category: B
Representation:
Counsel:
Applicant: Ms G Borgogno
Represented Person : Self-represented
Solicitors:
Applicant: Butlers Barristers and Solicitors
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
An application for legal costs relating to a hearing on 4 May 2009 was made by letter on 7 August 2009.
At the hearing, the Office of the Public Advocate and the Public Trustee were appointed guardian and administrator, respectively.
The Tribunal dismissed the application for costs to be paid from the representative person's assets. The Tribunal was of the view that the legal advice assisted the applicant in making her application and presenting her case at the hearing.
The Tribunal did not accept that the reasons given for seeking reimbursement of legal costs were directly related to the matter in hand and found that there was no significant benefit to the represented person that would justify costs being met from her estate.
Applications
The application before the Tribunal for determination is an application by GB, the granddaughter of the represented person, BM, for legal costs relating to her application for the appointment of a guardian and an administrator for BM, filed 20 March 2009. The application for costs was made by letter dated 7 August 2009 after the conclusion of the hearing, and has been treated as an application under s 16(4) of the Guardianship and Administration Act 1990 (WA) (GA Act).
Previous Orders
The applications for guardianship and administration were heard on 4 May 2009. The Tribunal appointed the Public Trustee as plenary administrator for BM for one year and the Office of the Public Advocate as limited guardian, with the functions to decide where BM is to live, whether permanently or temporarily; with whom she is to live; to consent to any treatment or health care for BM; to determine contact and services to which the represented person should have access. This appointment was also for one year.
Background
The hearing was attended by BM (proposed represented person), GB (granddaughter, represented by Butlers), her husband, AB, and two children. Other attendees were DD and SW (granddaughters of BM), several great‑grandchildren, and some nieces and nephews also attended. Ms Jo Keane and Ms Gail Worley from the Office of the Public Advocate were also in attendance.
BM is widowed and 95 years of age, and has been diagnosed as having a cognitive impairment. She lives in a house in which she has a life interest, with support from GB, her family and Silver Chain.
The application for guardianship and administration was brought by GB who sought the application of herself as administrator and guardian for BM. She provided information of the significant involvement of herself and her family in her grandmother's care, and in managing her finances informally over several years. She described the effort made to assist her grandmother to remain in the home in which she had lived for many years and her commitment to maintaining her grandmother at home rather than in alternative accommodation, in accordance with her grandmother's stated wishes.
DD, another granddaughter of BM and sister of GB, opposed the appointment of GB as administrator and guardian. She expressed her concern about the care arrangements in place for BM, which were provided by paid carers and by GB and her family, taking the view that BM needs full‑time support on a live-in basis or placement in an aged care facility. She also expressed concerns about obligations to Perpetual Trustees in respect to BM's life interest in the property in which she resided, and whether these were being met under the current care arrangements.
SW, another granddaughter and sister of the applicant, and her husband, RW, also made submissions, stating their concerns about the care provided and the renovations that had been undertaken by GB's husband on the property in which BM resided. They indicated they were respectful of BM's wish to live in her own home, and supported the appointment of an independent guardian and administrator for BM.
There appears to have been a long standing conflict between GB and her sisters with respect to what was best for BM in respect to living arrangements, and GB's sisters felt contact with BM was difficult for them under the current arrangements. GB did not oppose contact with family members but other family members felt it was difficult to arrange contact while GB's family stayed in BM's home. Family members agreed it was BM's expressed wish to remain in her own home as long as possible.
Medical and social work reports confirmed that BM is a person for whom guardianship and administration orders could be made and this was not disputed by anyone present.
At the hearing, GB presented information on how her family had supported BM for many years to ensure she could remain in her own home. She had made the application to formalise her role. However, prior to the end of the hearing, after reading and hearing the views of her two sisters, GB indicated she did not want to be guardian or administrator due to difficulties with family members. DD, SW and RW preferred an independent guardian and administrator be appointed, citing poor family communication and that all members were concerned for BM.
In general, it appeared that GB and her family had done their best to assist BM to remain at home. The Silver Chain coordinator spoke highly of the assistance provided. However, it was evident that fractured family relations could impact negatively on the best interests of BM to have contact with all her family. The Office of the Public Advocate representative supported the appointment of an independent guardian and administrator to make decisions in respect to BM's person and financial affairs.
In seeking reimbursement for legal costs, GB noted they had been providing care for eight years and had absorbed all costs associated with care and personal assistance. They had renovated and maintained BM's accommodation and made many day trips to Perth.
In respect to the application for costs, the Tribunal notes that the following reasons for seeking reimbursement were given:
The complexity of the will due to the number of beneficiaries, the management of the estate by a public listed corporate company based in Sydney, costs associated with maintenance and renovation work to the property and appropriate apportioning to all beneficiaries, the death of BM's executor of the will, representing BM's interests.
The Tribunal did not see these reasons as directly related to the matter in hand or as representing the best interests of BM. In addition, at the hearing GB indicated that if she had been given the opportunity to view submissions by DD and SW prior to the hearing date, she would not have proceeded with the application. Documents had been inspected by DD and copies provided to Butlers prior to the hearing, so the Tribunal does not accept that GB did not have the opportunity to consider information, although it is accepted that this did not occur.
Criteria
Section 16(4) provides (emphasis added):
The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.
The determination of any order for costs is a matter of discretion for the Tribunal and the starting principle is that parties to a hearing are expected to meet their own costs.
While a party to a hearing has the right to seek legal advice, the Tribunal aims to make proceedings as accessible as possible to the parties. Legal representation is generally not required at hearings of the Tribunal in the GA Act jurisdiction because the information necessary to make a determination is generally secured by the application and hearing processes. In addition, referral can be made to the Public Advocate to investigate and report on the best interests of the person about whom the application is made.
Findings
The Tribunal accepts that GB and her family have provided a great deal of support to BM and acted in ways they believed were in her best interests. However, in seeking legal advice in respect to the application, the Tribunal takes the view that this was to assist GB in making the application and to represent her position at the hearing.
The applicant withdrew her willingness to be appointed guardian or administrator at the hearing. Other family members supported independent appointments and raised concern about the impact of family conflict on the best interests of BM. The representative from the Office of the Public Advocate recommended independent appointments to serve BM's best interests.
The Tribunal takes the view that the advice provided to GB was to assist her in making the application and had no significant benefit to BM in the conduct of the proceedings or the outcome.
Orders
GB's application for costs is dismissed.
I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J STANTON, SENIOR SESSIONAL MEMBER
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