| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : GC and PC [2014] WASAT 10 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) MS D TAYLOR (SENIOR MEMBER)
DR R CLARNETTE (SENIOR SESSIONAL MEMBER)
HEARD : 21 NOVEMBER 2013 AND DELIVERED : 28 JANUARY 2014 FILE NO/S : GAA 2734 of 2013 BETWEEN : GC Applicant
AND
PC
Represented Person
Catchwords: Guardianship and administration - Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) Single member made limited administration order appointing represented person's wife as his limited administrator and refused to authorise payment by limited administrator of represented person's superannuation into limited administrator's superannuation account Whether statutory presumption of capacity is rebutted Whether proposed payment is of a charitable, benevolent or ex gratia nature Whether payment is in best interests of represented person where it maximises family income but involves risk that superannuation money may not be expended for benefit of represented person or that marriage may break down - Words and phrases: 'best interests', 'ex gratia nature' Legislation: Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A, s 17A(1), s 40, s 64, s 64(1)(b), s 71(5), s 72(3)(a), s 86(1), s 86(1)(b)
State Administrative Tribunal Act 2004 (WA), s 9(c), s 11, s 27(1), s 27(2) Result: Limited administration order discharged because statutory presumption of capacity not rebutted
Summary of Tribunal's decision: The applicant, who is the represented person's wife, sought review by a Full Tribunal of a determination of a member appointing the applicant as the limited administrator of the estate of the represented person and refusing to authorise the applicant as limited administrator to transfer the money in the represented person's superannuation accounts into the applicant's superannuation account. The applicant and the represented person had received financial advice that if this money were transferred, then it would not be an 'assessable asset' for the purposes of the represented person's aged pension, and his aged pension would therefore increase by approximately $56 per fortnight.
The Full Tribunal considered that, although the issue of incapacity was largely not contested in the proceeding, the medical evidence referred to by the member in her determination and in a subsequent Doctor's Guide provided to the Full Tribunal by the represented person's general practitioner was unsatisfactory and inadequate to rebut the statutory presumption of capacity. The Full Tribunal observed that the statutory presumption of capacity is a fundamental principle in the Guardianship and Administration Act 1990 (WA) and serves to protect persons who are the subject of proceedings under that Act from having their decisionmaking capacity removed from them. The Tribunal held that, because of the significant consequences for an individual of having their decisionmaking capacity removed from them and a substitute decisionmaker appointed for them, clear and cogent evidence is required to rebut the statutory presumption of capacity.
Ultimately, having adjourned the hearing and having heard oral evidence from the represented person's general practitioner, as well as from the represented person and the applicant, the Full Tribunal was not satisfied that the represented person 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, therefore, was not satisfied that the statutory presumption of capacity is rebutted in the circumstances of the case. Consequently, the Full Tribunal set aside the administration order.
Although it was unnecessary to determine whether the Tribunal would have made a 'gifting' order authorising the proposed transfer of the represented person's superannuation to his wife, because the case raises an issue of wider significance in terms of a represented person's 'best interests', the Full Tribunal expressed its view on this issue. The Full Tribunal did so on the assumption that the financial advice received by the applicant and the represented person was sound, although the Full Tribunal had doubts in that regard.
The Full Tribunal expressed the view that although it is in the represented person's financial interest to be $56 per fortnight better off, the represented person generally supports the proposed transfer, and the Full Tribunal may take a 'liberal view' of the represented person's 'best interests', the Full Tribunal would not have authorised the transfer of the represented person's superannuation to his wife. While there is no indication on the evidence that the applicant would do so, there can be no guarantee that, as the owner of the superannuation money, she would not access and spend it other than for the joint benefit of the represented person and herself. While there is no indication on the evidence that their marriage will end, there can be no guarantee that it will not end. Having regard to the legislative purpose to preserve a represented person's estate so as to ensure that the represented person has the means to maintain himself or herself for his or her lifetime, the Full Tribunal determined that it would not be in the best interests of the represented person to authorise the transfer, if such authority were required from the Tribunal.
Category: B
Representation: Counsel:
Applicant : In person
Represented Person : In person
Solicitors:
Applicant : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
EH [2008] WASAT 222
GC and PC [2013] WASAT 178
Perpetual Trustees WA Limited and the Public Trustee [2009] WASAT 253; (2009) 68 SR (WA) 128
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 GC (applicant) seeks review by a Full Tribunal of a determination made by a member on review of a limited administration order which appointed the applicant as the limited administrator of the estate of her husband, PC (represented person). The member made a limited administration order in the same terms as the previous order and refused to authorise the applicant as limited administrator to transfer the money in the represented person's superannuation accounts into the applicant's superannuation account. 2 At the commencement of the hearing, the Full Tribunal (as originally constituted) expressed concerns about the state of the medical evidence in relation to the represented person's mental disability, and questioned, in particular, whether the medical evidence, which consisted of two Doctor's Guides completed by Dr HT, the represented person's general practitioner (general practitioner), rebutted the statutory presumption of capacity. The Full Tribunal directed the applicant to obtain and file a psychiatric assessment of the represented person and adjourned the hearing to enable that to occur. The Full Tribunal was subsequently reconstituted so as to include a member who is a medical practitioner. 3 The applicant endeavoured, without success, to obtain a psychiatric assessment of her husband. However, the general practitioner was called to give evidence at the further hearing. Having heard the evidence of the general practitioner, as well as the applicant and the represented person, the Full Tribunal was not satisfied that the statutory presumption of capacity had been rebutted in respect of the represented person and, therefore, discharged the administration order. The Full Tribunal indicated that it would publish written reasons for discharging the administration order subsequently. We also indicated that, although the issue of whether the Full Tribunal would authorise the applicant as limited administrator to transfer the represented person's superannuation into her own superannuation account does not arise for determination, because of the wider significance of the issue, we would also address it in our written reasons.
Background 4 The applicant and the represented person have been married for about 33 years and have two adult children, both of whom still live with their parents and one of whom is a dependant. In the mid 1990's, the represented person was diagnosed with bipolar illness and schizophrenia. The applicant then informally took over management of the family's finances. 5 About 10 years later, in what the represented person described in his evidence as a 'bad patch' (T:6.8, 19.12.13) of irrational and erratic behaviour, without his wife's knowledge, he withdrew and spent approximately $54,000 from his superannuation accounts, thereby reducing the amount in those accounts by approximately half. 6 In January 2007, the applicant was appointed by the Tribunal as limited administrator of the estate of the represented person with functions including management of his superannuation accounts. The limited administration order was subsequently reviewed by the Tribunal on two occasions. On each occasion, the applicant was again appointed as limited administrator of the estate of her husband with essentially the same functions.
Application for authority to transfer superannuation amounts 7 In March 2013, the applicant sought review of the most recent limited administration order under s 86(1)(b) of the Guardianship and Administration Act 1990 (WA) (GA Act). That provision enables a represented person, a guardian or an administrator to seek review by the Tribunal of a guardianship order or an administration order. The applicant sought the review in order to obtain an order from the Tribunal under s 72(3)(a) of the GA Act authorising her as the limited administrator of the estate of her husband to transfer the whole of the remaining money in his superannuation accounts, amounting to approximately $55,000 in total, into her superannuation account. 8 The application was heard by Senior Sessional Member Ms H Leslie on 2 July 2013. On 11 July 2013, the member made a limited administration order appointing the applicant as her husband's limited administrator with the same functions as stated in the previous order, but refused to authorise the applicant to transfer her husband's superannuation money into the applicant's superannuation account for reasons set out at [15] below. 9 On 26 July 2013, the applicant sought review of the member's determination by a Full Tribunal under s 17A of the GA Act. Section 17A(1) of the GA Act enables a party who is aggrieved by a 'determination' made by the Tribunal consisting of one member to request the President to arrange for a Full Tribunal to review the determination, and requires the President to comply with such a request. The term 'determination' is defined in s 3(1) of the GA Act to include 'the making of, or refusal to make, an order on a review under section …86'. 10 In her application for review under s 17A of the GA Act, the applicant seeks an order that the Tribunal 'revoke the limited administration order now in place'. The reasons stated by the applicant in the application for review for seeking this order relate to the applicant's and the represented person's desire for the represented person's superannuation to be transferred to the applicant. In her application for review, the applicant did not contest that her husband is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to his estate.
The reason for seeking authority to transfer the superannuation amounts 11 The applicant and the represented person have a joint annual income of approximately $56,060 after tax. This includes the represented person's disability pension of $14,723 and the applicant's carer's allowance of $3,811. 12 As the represented person is eligible for the aged pension upon turning 65 years of age in January 2014, the represented person and the applicant sought and received financial advice through Centrelink as to their options to maximise the family income. According to the applicant, she and her husband were advised that if the money in the represented person's superannuation accounts were transferred to the applicant's superannuation account before the represented person turns 65 years of age, then those amounts would not be an 'assessable asset' for the purposes of the represented person's aged pension, and his aged pension would therefore increase by approximately $56 per fortnight. According to the applicant, the transfer of the asset into her name would mean that it would not become an 'assessable asset' for pension purposes until she became eligible for an aged pension in eight years' time. 13 We share the doubts expressed by Senior Sessional Member Leslie during the hearing before her as to whether the advice apparently received by the represented person and the applicant is sound. However, like the member, we assume, for the purposes of our decision, that the advice is correct and that, in consequence of the proposed transfer, the represented person's aged pension would be approximately $56 per fortnight higher than would otherwise be the case. 14 In her application for review, the applicant contends that, unless authority is given by the Tribunal to transfer the sum of approximately $55,000 into her superannuation account, 'the loss of a combined income of approximately $60 per fortnight over 8 years will cause significant financial loss and hardship to [the represented person] and myself as we are already on a low income'. Over eight years, $56 per fortnight equates to $17,472. The applicant also contends in her application that: We believe that the order currently in place will cause financial hardship for [the represented person], myself and our family and does not act in our best interest which is upsetting and causing distress for the family.
The member's reasons for refusing to authorise the transfer 15 The member expressed her reasons for refusing to authorise the transfer of the represented person's superannuation to his wife's superannuation account at [34] of her written reasons for decision GC and PC [2013] WASAT 178 (GC and PC) as follows: The mandate of the Tribunal is to look to the best interests of the represented person. The course of action proposed by the applicant, in my view, distils down to the following simple question: given the life circumstances and the financial circumstances of the represented person, can it be said to be in his best interests that an asset in his name worth in excess of $50,000 be transferred out of his name (albeit into the name of person who appears to be entirely properly motivated) in order that his pension not be reduced by approximately $25 per fortnight after he turns 65? In my view, it cannot be. Even if the income preservation figures were to be of the magnitude that the applicant claims (that is, $40 $60 per fortnight to the represented person, and another $40 $60 to her), my view would be the same.
Legal framework and principles 16 A review by a Full Tribunal under s 17A of the GA Act involves what is referred to in s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) as 'a hearing de novo', that is a fresh consideration of the matter in respect of which the member made the determination under review. Section 27(2) of the SAT Act states that '[t]he purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review'. 17 As noted earlier, the matter which was the subject of the determination involved an application by the applicant for the review of the limited administration order in respect of the estate of the represented person under s 86(1)(b) of the GA Act. In carrying out a review of an administration order under s 86(1) of the GA Act, the Tribunal is required to determine, as a threshold matter, whether the represented person is a person in respect of whom an administration order can be made. Section 64(1) of the GA Act states, in this regard, as follows: 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 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 as the case may require, of the estate of the person in respect of whom the application is made. 18 Section 64(1) of the GA Act is expressed as being '[s]ubject to section 4'. Section 4(1) of the GA Act states as follows: In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section. 19 The principles the Tribunal is required to observe under s 4 of the GA Act, in dealing with proceedings commenced under that Act, include the following: … (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
… (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. 20 The applicant sought review of the limited administration order under s 86(1) of the GA Act essentially in order to seek a 'gifting' order from the Tribunal under s 71(5) and s 72(3)(a) of the GA Act authorising the transfer by her as limited administrator for her husband of the money in her husband's superannuation accounts to her superannuation account. Section 71(5) of the GA Act states as follows: In exercising its jurisdiction under this Part the State Administrative Tribunal may take a liberal view of the best interests of the represented person as mentioned in section 4(2), and in particular may, if the circumstances so require, empower an administrator to make a payment or enter into a transaction of a kind described in section 72(3) on behalf of the represented person. 21 The Part of the GA Act referred to in s 71(5) is Pt 6 which relates to estate administration. 22 Section 72(3) of the GA Act, states, in part, as follows: Notwithstanding this section or section 71, an administrator shall not without the authority of the State Administrative Tribunal under section 71(5)
(a) make a payment or disposition of a charitable, benevolent or ex gratia nature; or …
23 Section 72(3)(a) of the GA Act is commonly referred to as the 'gifting' provision. Without prior authority from the Tribunal under s 71(5) and section 72(3)(a) of the GA Act, a payment or disposition of a charitable, benevolent or ex gratia nature by an administrator would be unlawful: see EH [2008] WASAT 222 (EH) at [36]. 24 The payment for which the applicant seeks authority from the Tribunal is not of a 'charitable' or 'benevolent' nature. It is, however, of an 'ex gratia' nature within the meaning of s 72(3)(a) of the GA Act. In EH at [20], the Tribunal referred to and applied the Oxford English Dictionary (edition not stated) meaning of 'ex gratia' as 'Done, given etc as a favour or without (esp legal) compulsion'. The Macquarie Dictionary (5th ed, 2009) relevantly defines 'ex gratia' at page 580 as '(of something granted) as a favour and not because of a legal obligation'. 25 The proposed payment of the represented person's superannuation from his superannuation accounts into the applicant's superannuation account is a payment which would be made without compulsion and without legal obligation and is therefore, relevantly, of an 'ex gratia' nature within the meaning of s 72(3)(a) of the GA Act. 26 As noted earlier, the 'primary concern' of the Tribunal, in dealing with proceedings under the GA Act, is 'the best interests' of the represented person or proposed represented person: s 4(1) and s 4(2) of the GA Act. As also noted earlier, s 71(5) of the GA Act states that, in exercising its jurisdiction under Pt 6 of the GA Act, concerning estate administration, the Tribunal 'may take a liberal view of the best interests of the represented person'. Furthermore, the Tribunal is required, by s 4(7) of the GA Act 'as far as possible, [to] seek to ascertain the views and wishes' of the represented person or the proposed represented person. 27 Although, in exercising its jurisdiction in relation to the appointment of an administrator and authorising a 'gifting' transaction, the Tribunal may take a liberal view of the best interests of the represented person or proposed represented person and is required, as far as possible, to seek to ascertain the views and wishes of the represented person or the proposed represented person, the determination by the Tribunal of what is in the 'best interests' of the represented person or proposed represented person involves an objective assessment having regard to all relevant circumstances. The determination of what is in the represented person's or proposed represented person's best interests is informed, but not dictated by the views and wishes of that person. Furthermore, although the Tribunal may take a liberal view of the best interests of the represented person or proposed represented person, this does not authorise the Tribunal to make a determination which is not, objectively, in the represented person's or proposed represented person's best interests. Thus, while a represented person or proposed represented person, if they were not unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate, may be willing to make a payment or disposition of a charitable, benevolent or ex gratia nature notwithstanding a financial risk to that person in doing so, the Tribunal may determine that the payment or disposition is not, objectively, in the 'best interests' of the person whom the Tribunal has declared to be in need of an administrator of their estate. 28 In particular, although a person in respect of whom an administration order has not been made may be willing to make a payment or disposition of a charitable, benevolent or ex gratia nature, notwithstanding that it involves a financial risk, and although the Tribunal may take a liberal view of the best interests of the represented person or proposed represented person in exercising its jurisdiction in relation to estate administration, the Tribunal may determine that a proposed 'gifting' transaction is not in the best interests of a person whom it has declared to be in need of an administrator of his or her estate, because the GA Act manifests a legislative purpose to preserve the represented person's estate to ensure that that person has adequate means to maintain himself or herself for his or her lifetime. 29 In Perpetual Trustees WA Limited and the Public Trustee [2009] WASAT 253; (2009) 68 SR (WA) 128 (Perpetual Trustees) the Tribunal held at [60] [61] as follows: 60 The overall intention of the GA Act was outlined by his Honour, Justice Heenan in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268, (Full Board decision) as being the protection of the estate for the benefit of the represented person during the lifetime of that person. At [44] he states: … The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. In the main, these will be accomplished by conserving the resources and property of the person under administration for use to his or her own advantage or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration. 61 Seen in that light, s 72(3) of the GA Act makes perfect sense. Its purpose is, as part of the Scheme of the GA Act, to preserve the represented person's estate, so as to ensure he has adequate means to maintain himself for his lifetime. The GA Act in general, and s 72(3) in particular, are to ensure that the represented person's estate is not 'dissipated' but 'conserved'. Although the GA Act gives a plenary administrator broad powers to act, an administrator must do so, subject to the GA Act and its general primary objective to 'conserve' the represented person's estate, to apply it to the 'needs, welfare and enjoyment' of the represented person, and not to 'dissipate' the estate. In this way, with this restriction on what are otherwise broad powers, an administrator fulfils its duty under the GA Act to ensure, as best as the administrator possibly can, and within the context of the value of the represented person's estate, that the represented person has adequate means for their lifetime.
Is the represented person a person for whom an administration order can lawfully be made? 30 Section 4(3)(d) of the GA Act creates the following rebuttable presumption of capacity in relation to proceedings under that Act: 31 This statutory presumption of capacity can only be rebutted under the GA Act if the Tribunal makes a finding under s 64(1)(a) of the GA Act that the person: is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his [or her] estate; … 32 Senior Sessional Member Leslie considered whether the statutory presumption of capacity is rebutted on the evidence before her in GC and PC at [10] [11] as follows: 10 The issue of incapacity was largely not contested in the proceedings. In the report prepared for the first hearing in 2007, the evidence of Dr M, psychiatrist, was that the represented person was unable to make reasonable judgments in relation to his financial affairs; that he suffers from bipolar affective disorder; that his condition is 'fluctuating', and that periodic exacerbations of his illness have led to him unwisely spending tens of thousands of dollars. Dr M supported a limited order given the problems that had arisen. The applicant's application at the time referred to a deterioration in the represented person's mental functioning over time which had led to him losing his career as a teacher and his inability to manage financial matters, to the represented person's lack of insight and to the need for the applicant to take over management of the family finances. At the various reviews, the position remained essentially unchanged. The represented person's general practitioner, Dr HT, confirmed the previous diagnosis. He indicated that he was 'not sure' about whether the represented person could make reasonable decisions in relation to his financial affairs; however, he described the impairment as 'static'. 11 At the hearing, the applicant expressed the view that the represented person was 'stable but pretty much the same'; that he could 'not really', 'not fully' make decisions about money; essentially that money to which he had access was 'just spent'. The represented person confirmed that his wife managed the money and paid the bills and that 'I need that, I suppose'. The represented person largely seemed content with the arrangement though, on a number of occasions, he expressed a desire for a small account so that he had some independence; for example, for spending money at the football, rather than having to ask for funds. In relation to more complex matters 'bigger picture' things he agreed that he needed assistance. The represented person's adult son, JC, indicated that he felt his father needed his mother's assistance in relation to the financial matters. 33 As the Senior Sessional Member said at [10] of her reasons for the determination, the general practitioner 'confirmed the previous diagnosis' that the represented person suffers from bipolar affective disorder and indicated that he was 'not sure' about whether the represented person could make reasonable decisions in relation to his financial affairs. The general practitioner had expressed these opinions in a Doctor's Guide dated 23 April 2013. In that document, the general practitioner said that, in addition to bipolar illness, the represented person also has a diagnosis of schizophrenia. 34 Significantly, the general practitioner did not give oral evidence at the hearing before the Senior Sessional Member. Significantly, also, the general practitioner said in the Doctor's Guide dated 23 April 2013 that he had not seen the represented person since 18 May 2012, which was over 11 months before. 35 In a subsequent Doctor's Guide dated 24 October 2013, which was provided by the general practitioner for the purposes of the application for review under s 17A of the GA Act, the general practitioner stated the same diagnosis in relation to the represented person's impairment of his cognitive ability or mental function and the same opinion that the general practitioner was 'not sure' in relation to whether the represented person can make reasonable decisions in relation to his financial affairs. In the Doctor's Guide dated 24 October 2013, the general practitioner said that he had not seen the represented person since 18 May 2012, which was over 17 months before. 36 The medical evidence referred to by the Tribunal in GC and PC at [10] and in the Doctor's Guide provided by the general practitioner for the purposes of the s 17A review is unsatisfactory and inadequate to rebut the statutory presumption of capacity under s 64(1)(a) of the GA Act. The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decisionmaking capacity removed from them and a substitute decisionmaker appointed for them under the Act. Because of the significant consequences for an individual of having their decisionmaking capacity removed from them and a substitute decisionmaker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity. 37 In this case, the only evidence from a psychiatrist about whether the represented person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to his estate was given some six years ago. The general practitioner indicated that he was 'not sure' about whether the represented person can make reasonable decisions in relation to his financial affairs, and although he said that the represented person's mental illness was 'static', he had not seen the represented person for almost a year, or for almost one and a half years, by the dates of the Doctor's Guides. 38 At the commencement of the hearing in relation to the s 17A review application on 21 November 2013, the Full Tribunal (as originally constituted) raised the issue of the unsatisfactory and inadequate nature of the medical evidence with the applicant and the represented person. The Full Tribunal then directed the applicant to file a psychiatric assessment of the represented person, including an assessment by a psychiatrist as to whether, in his or her opinion, the represented person is able to make reasonable judgments about his financial affairs, and adjourned the hearing to 19 December 2013 to enable that to occur. 39 The main objectives of the Tribunal in dealing with matters within its jurisdiction include 'to make appropriate use of the knowledge and experience of Tribunal members': s 9(c) of the SAT Act. Consistently with this objective, the President reconstituted the Full Tribunal under s 11(a) of the SAT Act by substituting Senior Sessional Member Dr Roger Clarnette, a medical practitioner, in place of Senior Member Mr Jack Mansveld. 40 At the commencement of the hearing on 19 December 2013, the applicant explained that, although she had made attempts, she could not obtain a psychiatric assessment of her husband through the public health system and that they could not afford a psychiatric assessment by a psychiatrist in private practice. However, as the applicant had indicated to the Tribunal that this would be the case prior to the further hearing, the Tribunal had made arrangements for the general practitioner to be available to give evidence by telephone. 41 In his oral evidence, the general practitioner said that he had seen the represented person twice since the previous hearing on 21 November 2013. The general practitioner said that the represented person may not have been correctly diagnosed as suffering from bipolar affective disorder and schizophrenia. The general practitioner said that, although the represented person displayed erratic and irrational behaviour in the mid2000's, when he withdrew and spent about half of the money in his superannuation accounts, his behaviour may not have been due to bipolar illness. 42 The general practitioner also said that, to his knowledge, the represented person had not displayed any symptoms of bipolar illness and that he was not aware of any relapse of bipolar illness. The general practitioner went on to say that he had not seen any positive symptoms of schizophrenic illness in the represented person in recent years. He said that the symptoms of schizophrenia which he has noticed in the represented person in recent years are mainly 'negative symptoms', but 'not really strong negative symptoms' (T:17.5, 19.12.13). 43 The general practitioner confirmed the represented person's evidence that, since the represented person was discharged by the treating psychiatrist to the general practitioner's care in 2006, the represented person has taken two medications daily and that the doses have not changed during that period. The general practitioner said: … there had been no relapses or any deterioration in [the represented person's] condition. His condition remains static or stable. (T:10.6, 19.12.13). 44 When he was asked by the Tribunal as to why he expressed the opinion in the Doctor's Guides that he was 'not sure' as to whether the represented person can make reasonable decisions in relation to his financial affairs, the general practitioner said that he expressed that opinion because the represented person had a history of irrational management of his financial affairs (when he spent about half his superannuation amounts in 2006) and that although he has not displayed such erratic behaviour since that time, '… past performance might be a good indicator of well, may or may not be a good indicator of future performance' (T:10.9, 19.12.13). The general practitioner expressed the opinion that a cautious approach should be adopted, both because of the represented person's past erratic behaviour and because the represented person was unable to explain to the general practitioner '… the reasons for … [coming] to the [Tribunal]' (T:11.3, 19.12.13). The general practitioner said that 'Most of it [i.e. the explanation for seeking the 'gifting' order from the Tribunal] has come from [the applicant] …' (T:11.3, 19.12.13). The general practitioner said that he was '… concerned, and wondering if a part of that might be sort of his wife, for want of a better word, sort of instigating matters …' (T:11.4, 19.12.13). 45 The general practitioner expressed the opinion in oral evidence that he would say that the represented person '… would probably be okay …' (T:11.1, 19.12.13) to make reasonable decisions in relation to his day to day financial affairs. However, the general practitioner considers that a cautious approach should be applied in relation to the represented person's capacity to make reasonable decisions in relation to other financial matters, including the transfer of his remaining superannuation amounts to his wife's account. The general practitioner said: I guess I really would have to err on the side of caution and say that I would be reluctant to say that he would … be fully capable of … managing his funds. (T:13.8, 19.12.13). 46 The applicant gave evidence that, when the represented person withdrew and spent about half his superannuation amounts in 2006, he was 'off the planet, doing … irrational … things' (T:5.96.1, 19.12.13). She said that he is now 'more rational' (T:5.7,19.12.13), 'very different' (T:6.2, 19.12.13), 'calmer and he doesn't go into so much inappropriate things (T:6.3,19.12.13) and 'his judgment is clearer' (T:6.4,19.12.13). 47 Similarly, the represented person gave evidence that, when he spent the superannuation money, he was going through a 'bad patch' (T:6.8, 19.12.13). He said that he no longer feels like that now. He gave evidence that he recently went to Victoria for two weeks to visit his mother and managed his money during that time. 48 Although the general practitioner expressed concern that the represented person was unable to explain to him the reason for bringing the application to the Tribunal, it is clear from the represented person's evidence before the Senior Sessional Member and before the Full Tribunal that he believes that the transfer of his superannuation amounts to his wife's account would be in his financial interest and that he supports that transaction but, as the Senior Sessional Member said in GC and PC at [32], 'only on the basis that he could be assured that the superannuation resources would be available for the benefit of both himself and his wife'. He said at the hearing before the Senior Sessional Member that he 'toiled for nearly 30 years to earn that superannuation' and that 'I don't want to give it away' (T:13.3 and 13.4, 2.7.13). 49 Although we would have preferred evidence from a psychiatrist, we consider that the evidence of the general practitioner, the applicant and the represented person provides an adequate basis for determining whether the statutory presumption of capacity is rebutted in the circumstances of this case. As we indicated during the hearing on 19 December 2013, we are not satisfied that the represented person 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 we are, therefore, not satisfied that the statutory presumption of capacity is rebutted in the circumstances of this case. 50 There is some doubt about the represented person's diagnosis of mental disability. Furthermore, whether the represented person has been correctly diagnosed as suffering from bipolar affective disorder and schizophrenia or not, we are not satisfied that he is presently unable to make reasonable judgments in respect of matters relating to all or any part of his estate. It appears that the represented person was unable to make reasonable judgments in respect of matters relating to his estate when an administration order was originally made for him in 2007 after the 'bad patch', as he described it, in which he engaged in irrational and erratic behaviour by spending about half of his superannuation funds. However, the general practitioner's evidence indicates that the represented person has been successfully medicated since that time and has not relapsed or even displayed symptoms of bipolar illness or symptoms of schizophrenia, other than some negative symptoms which the general practitioner described as 'not really strong negative symptoms' (T:17.5, 19.12.13). This is consistent with the evidence of the applicant and the represented person that he is now very different and that his judgment is clearer. 51 Furthermore, although the represented person was apparently not able to explain to the general practitioner the reason for seeking the 'gifting' order from the Tribunal, it is clear from his evidence in the Tribunal that he is aware of the reason for his wife having sought review of the limited administration order and that he agrees that the proposed transfer of his remaining superannuation money to his wife's account should occur.
Should the Full Tribunal authorise the transfer? 52 As we are not satisfied that the represented person 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 an administration order cannot, therefore, lawfully be made under s 64 of the GA Act, the issue of whether the Full Tribunal should authorise the transfer of the represented person's superannuation to the applicant's account under s 71(5) and s 72(3)(a) of the GA Act does not arise for determination. However, this case raises an issue of wider significance in terms of the determination of a represented person's 'best interests'. The transfer of assets between people with capacity to make their own decisions is a matter for them. Unless and until the presumption of capacity is displaced, and an order is made appointing an administrator for a person, there is no fetter on his or her right to make his or her own good and bad decisions. However, if an administration order is made for a person and a 'gifting' transaction is proposed, the Tribunal must determine whether the transfer is in the 'best interests' of the represented person and may well find that it is not, even though the represented person, if they had capacity, would in all likelihood have made the transfer. 53 We will therefore express our view as to whether we would have made the proposed 'gifting' order. As noted earlier in these reasons, we do so on the assumption that the financial advice apparently received by the applicant and the represented person is sound, although we have doubts in that regard. 54 On this assumption, we accept the applicant's contention that transferring the represented person's superannuation funds to her account is in the best interests of their family. As she said in her application, the refusal to authorise the transfer is not 'in our best interests' (emphasis added). However, the best interest of the represented person's family is not the primary concern of the Tribunal. The primary concern of the Tribunal is the best interests of the represented person. 55 It is certainly in the financial interest and, therefore, all other things being equal, in the best interests of the represented person, to be $56 a fortnight better off. It is also in the represented person's best interests, all other things being equal, for his family's net income to be maximised, particularly because they are on a low income and have a dependant child and a second child also living at home. Furthermore, it is in the represented person's best interests, all other things being equal, for any upset or distress within the family to be minimised. 56 However, the necessary consequence of the represented person being $56 a fortnight better off, his family's income being maximised, and the upset or distress within the family being minimised, is that approximately $55,000 belonging to him, being his principal asset other than his interest in the family home, is to be given away to his wife. 57 The applicant has demonstrated a loving commitment to the represented person for over three decades and together they have raised a family. We note, in particular, that although the represented person has had a diagnosed mental illness for many years, the applicant has remained by his side, and as his administrator has, it appears, acted in his best interests at all times. In such circumstances, it may very well be the case that a person who is not unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to the person's estate would decide to transfer the person's superannuation funds into the spouse's superannuation account if the person would thereby be $56 a fortnight better off, the family's income would be maximised, and upset and distress within the family would be minimised. Such a person may well do so notwithstanding that there is a risk that the spouse may access and spend the money other than for their joint benefit and that there is a risk that the marriage may end. Indeed, the represented person indicated to the Tribunal that, with the limited administration order revoked, he intends to transfer his superannuation to his wife. 58 However, if the represented person were unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to his estate and if he were in need of an administrator of his estate, then we would have determined that it is not in his best interests, notwithstanding that we may take a liberal view of his best interests and despite his general support for the proposed transaction, for his superannuation funds to be transferred to his wife's account. While there is no indication on the evidence that the applicant would do so, there can be no guarantee that, as the owner of the superannuation money, she would not access and spend it other than for the joint benefit of the represented person and herself. Although there is no indication on the evidence that their marriage will end, there can be no guarantee that it will not end. Having regard to the scheme of the GA Act to preserve a represented person's estate so as to ensure that the represented person has the means to maintain himself or herself for his or her lifetime, it would not be in the best interests of the represented person to authorise his superannuation funds to be transferred to his wife's superannuation account, if such authority were required under the GA Act. 59 It may be that, were the amount proposed to be transferred only a small proportion of a represented person's assets, an application of this sort could succeed, as there would be sufficient financial resources remaining and available to meet the represented person's future needs. In such circumstances, this factor and the desire to maintain harmony within the represented person's family might, in the determination by the Tribunal of his or her best interests, outweigh the financial risk to that person. However, in the circumstances of this case, where the proposal would see the represented person stripped permanently of his principal asset other than his interest in the family home, the position is different.
Conclusion 60 As the statutory presumption of capacity has not been rebutted on the evidence, the limited administration order made by the Tribunal on 11 July 2013 appointing the applicant as the limited administrator of the estate of the represented person was discharged at the hearing of the application for review under s 17A of the GA Act on 19 December 2013. 61 Had the authority of the Tribunal been required under s 71(5) and s 72(3)(a) of the GA Act for the proposed transfer of the represented person's superannuation to the applicant, the Full Tribunal would have come to the same conclusion as the Senior Sessional Member and refused to authorise the payment, because the transfer is not in the represented person's 'best interests', objectively determined in light of the legislative purpose of the GA Act to preserve a represented person's estate so as to ensure that the person has adequate means to maintain himself or herself for his or her lifetime.
Orders 62 For these reasons, at the conclusion of the hearing on 19 December 2013, we made the following orders: |