GF

[2016] WASAT 134

GF [2016] WASAT 134

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 134
Published:	11/11/2016
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:3239/2016	Heard:	26 OCTOBER 2016
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	9/11/16
No of pages:	11	Judgment Part:	1 of 1
Result:	New administration order made
Category:	B
PDF Version

Parties:	GF
Catchwords:	Guardianship and administration Administration Represented person's sister had been appointed administrator of his estate Represented person living a full life in community under care of his sister and brother­in­law Application for review of administration order made by Public Trustee Proposal that represented person purchase property where he, his sister and brother­in­law live Property owned by represented person's brother­in­law Because of illness mortgage on property cannot be maintained Proposed purchase price is less than value of property If represented person does not purchase property it will need to be sold and represented person will likely need institutional care Risks in purchase outweighed by benefits to represented person Purchase of property not opposed by Public Trustee Represented person's sister and brother­in­law to be permitted to continue to live in property rent free but to pay property costs and utilities Liberal view of represented person's best interests
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 64(1), s 70, s 71(5), s 72(3)(9a), s 74, s 80, s 86
Case References:	Nil
Summary	GF, a 63-year-old man, lived with his sister and brother in law, Mr and Mrs H.,In 2012, Mrs H was appointed the plenary administrator of GF's estate pursuant to the Guardianship and Administration Act 1990 (WA). Prior to that appointment GF's stepmother had been his administrator since 2007.,GF had been previously diagnosed with depression and anxiety for which he had been receiving treatment. He also had a profound hearing impairment and was mute. He had been assessed by a medical practitioner as having no concept of abstract ideas.,In August 2016 the Public Trustee made an application for review of the administration order.,The Public Trustee had been in discussion with Mrs H over her proposal that GF purchase the property in which she and Mr H lived (GF also lived on the property). The reason for the proposal was that Mr H had become seriously unwell and was no longer able to work. As a consequence, the mortgage on the property could no longer be paid and Mrs H was concerned that the property would need to be sold.,GF lived a full life in the community and attended the local community centre from Monday to Friday engaging in a range of activities. GF received a care package which enabled him to attend the community centre and provision was made in the care package for homecare should that be required.,Mrs H expressed deep concern that if the property was sold then GF would require institutional care which would be profoundly distressing for him and which would mean that he could no longer engage with the community as he was currently doing.,Under the advice of the Public Trustee, Mrs H obtained an expert valuation of the property. The property was valued in excess of what she proposed that GF pay for its purchase.,On this basis the Public Trustee was not opposed to GF purchasing the property.,Mr and Mrs H initially proposed that they be given a life interest in the property to protect their occupancy but this was not supported by the Public Trustee and Mr and Mrs H later withdrew that requirement.,The Public Trustee did support that Mr and Mrs H be permitted to continue to live in the property free of rent but be required to pay the property costs and utilities.,The Tribunal accepted that Mr and Mrs H provided significant care and support to GF such that it enabled him to live in the community and not be in institutional care.,Although there were risks attendant upon GF purchasing the property, the Tribunal found that the advantages outweighed those risks.,Given the position of the Public Trustee, the Tribunal did not need to authorise the purchase of the property by GF but did approve Mr and Mrs H continuing to live in the property free of rent but paying the property costs and utilities.,The Tribunal directed Mrs H as the administrator of GF's estate to seek review of the order should her living circumstances or the living circumstances of GF change such that she or he was no longer able to live in the property.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : GF [2016] WASAT 134 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 26 OCTOBER 2016 DELIVERED : 9 NOVEMBER 2016 PUBLISHED : 11 NOVEMBER 2016 FILE NO/S : GAA 3239 of 2016 BETWEEN : GF

Represented Person

Catchwords:

Guardianship and administration - Administration - Represented person's sister had been appointed administrator of his estate - Represented person living a full life in community under care of his sister and brother­in­law - Application for review of administration order made by Public Trustee - Proposal that represented person purchase property where he, his sister and brother­in­law live - Property owned by represented person's brother­in­law - Because of illness mortgage on property cannot be maintained - Proposed purchase price is less than value of property - If represented person does not purchase property it will need to be sold and represented person will likely need institutional care - Risks in purchase outweighed by benefits to represented person - Purchase of property not opposed by Public Trustee - Represented person's sister and brother­in­law to be permitted to continue to live in property rent free but to pay property costs and utilities - Liberal view of represented person's best interests

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 64(1), s 70, s 71(5), s 72(3)(9a), s 74, s 80, s 86

Result:

New administration order made

Summary of Tribunal's decision:

GF, a 63-year-old man, lived with his sister and brother in law, Mr and Mrs H.

In 2012, Mrs H was appointed the plenary administrator of GF's estate pursuant to the Guardianship and Administration Act 1990 (WA). Prior to that appointment GF's stepmother had been his administrator since 2007.
GF had been previously diagnosed with depression and anxiety for which he had been receiving treatment. He also had a profound hearing impairment and was mute. He had been assessed by a medical practitioner as having no concept of abstract ideas.
In August 2016 the Public Trustee made an application for review of the administration order.
The Public Trustee had been in discussion with Mrs H over her proposal that GF purchase the property in which she and Mr H lived (GF also lived on the property). The reason for the proposal was that Mr H had become seriously unwell and was no longer able to work. As a consequence, the mortgage on the property could no longer be paid and Mrs H was concerned that the property would need to be sold.
GF lived a full life in the community and attended the local community centre from Monday to Friday engaging in a range of activities. GF received a care package which enabled him to attend the community centre and provision was made in the care package for homecare should that be required.
Mrs H expressed deep concern that if the property was sold then GF would require institutional care which would be profoundly distressing for him and which would mean that he could no longer engage with the community as he was currently doing.
Under the advice of the Public Trustee, Mrs H obtained an expert valuation of the property. The property was valued in excess of what she proposed that GF pay for its purchase.
On this basis the Public Trustee was not opposed to GF purchasing the property.
Mr and Mrs H initially proposed that they be given a life interest in the property to protect their occupancy but this was not supported by the Public Trustee and Mr and Mrs H later withdrew that requirement.
The Public Trustee did support that Mr and Mrs H be permitted to continue to live in the property free of rent but be required to pay the property costs and utilities.
The Tribunal accepted that Mr and Mrs H provided significant care and support to GF such that it enabled him to live in the community and not be in institutional care.
Although there were risks attendant upon GF purchasing the property, the Tribunal found that the advantages outweighed those risks.
Given the position of the Public Trustee, the Tribunal did not need to authorise the purchase of the property by GF but did approve Mr and Mrs H continuing to live in the property free of rent but paying the property costs and utilities.
The Tribunal directed Mrs H as the administrator of GF's estate to seek review of the order should her living circumstances or the living circumstances of GF change such that she or he was no longer able to live in the property.

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:

Introduction

1 GF is a 63-year-old man who lives with his sister, Mrs H, and his brother­in­law, Mr H.

2 GF has been under an administration order made pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act) since 2007 when his stepmother was appointed.

3 In August 2012, GF began living with Mr and Mrs H.

4 On 12 November 2012, the stepmother's appointment was revoked and Mrs H was appointed the plenary administrator of GF's estate with a gifting authority of $100 per annum included in the order (administration order).

5 According to an agreement entered into by Mrs H as administrator for GF on 20 June 2016 with Mr H (the agreement), the following is noted.

6 Mr H owns the property in which GF and Mr and Mrs H live (the property).

7 With the permission of Mr H, GF erected a large shed at the rear of the property (shed). The shed has an en­suite bathroom with a toilet and shower. GF has parked his caravan, described in the agreement as a 'six wheeler tri axle caravan', (the caravan) in the shed on the property. GF lives in the caravan.

8 The cost to erect the shed on the property was approximately $85,000. The whole of this amount was paid exclusively by GF.

9 I will return to the agreement later in these reasons.

10 Mrs H has filed three sets of accounts with the Public Trustee pursuant to s 80 of the GA Act since she was appointed administrator of the estate of GF. The most recent account period for which accounts have been filed is from 1 December 2014 to 30 November 2015 (account 3). There were no issues of concern identified by the Public Trustee in the examination of account 3 and it was allowed on 13 July 2006: s 80 of the GA Act.

The application

11 The application before the Tribunal is a review of the administration order filed by the Public Trustee pursuant to s 86 of the GA Act. The Public Trustee has made the application because Mrs H, in her role as the administrator of GF's estate, proposes a transaction on behalf of GF that may place her in a position of a conflict of interest (the transaction).

12 It is common ground that GF remains a person who is in need of an administrator of his estate. There is no evidence before the Tribunal to contradict the findings of incapacity made initially in 2007 and later in 2012. In the hearing on 12 November 2012, a medical practitioner gave evidence that GF had longstanding depression and anxiety for which he was being treated with medication. GF has a profound hearing impairment and is mute and the medical practitioner assessed him in 2012 as having no concept of abstract ideas.

13 I am satisfied that by reason of a mental disability, GF continues to be unable to make reasonable judgments in respect to matters relating to all of his estate: s 3 and s 64(1) of the GA Act.

14 The purpose of the transaction is to use GF's funds currently kept in a superannuation account for the purchase of the property. If the transaction goes ahead Mr and Mrs H intend that the mortgage on the property, which at the time of the hearing stood at approximately $214,000, is paid out.

15 Mrs H is proposing the transaction because Mr H has become unwell and very soon will no longer be able to work. When Mr H retires from work the financial situation for Mr and Mrs H will be such that they will not be able to afford the mortgage repayments as well as meeting their other financial commitments.

16 The evidence of Mrs H is that she and Mr H provide care, support and oversight for GF without which his health and safety would be at risk.

17 Mrs H states that GF attends the local community centre from Monday to Friday and engages in the activities that are available there. GF eats with Mr and Mrs H because he cannot cook, but otherwise manages his own activities of daily living and also assists Mr and Mrs H with what Mrs H describes as chores around the house.

18 Mrs H states that GF is in receipt of a Home and Community Care package from the local council which enables him to attend the community centre and under which he is eligible to receive homecare, if required.

19 Mrs H states that it was the intention and wish of their father that GF stay with her and Mr H for as long as GF is alive. Mrs H states that she intends to honour that commitment.

20 Mrs H states that she could not imagine that GF would be able to cope with going into institutional care. In order to preserve GF's ability to remain living where he is, and to continue to access the community in the way that he does, Mrs H says that she has organised informal arrangements for the supervision, monitoring and care of GF should she and Mr H no longer be available to do so. She has done this with her direct neighbours and also a couple who have agreed to take a longer term interest in GF's welfare, should that be necessary.

21 In respect to the transaction, Mr and Mrs H have been corresponding with the Public Trustee.

22 The Tribunal is appreciative of the work undertaken by the Public Trustee to ensure that sufficient information is available so as to be able to give consideration to the transaction and how it may impact on GF.

23 The relevant information is a report from a local valuation service dated 23 September 2016 (valuation report), a letter from a financial advisor dated 12 October 2016 (superannuation letter) and copies of bank statements for the home loan in the name of Mr and Mrs H (home loan statement).

24 The valuation report assesses the market value of the property including the shed at $270,000 and excluding the shed at $230,000. This means that the shed is considered to have added $40,000 to the current value of the property. The valuation report states that demand for the property is considered to be limited due to the size and condition of the improvements.

25 The superannuation letter states that GF's current balance in his superannuation fund is approximately $241,000 and he has no restrictions in relation to accessing the balance to enable him to purchase the property.

26 The home loan statement shows that at 1 September 2016 the balance owing on the mortgage loan of Mr and Mrs H was $214,046.21.

27 The initial proposal by Mr and Mrs H was that GF use his superannuation funds to pay out the mortgage on the property and that the whole of the property be transferred to him. It was intended that Mr and Mrs H be given a life interest in the property so that their continuing occupancy was protected. Mr and Mrs H expected to pay utility accounts, rates and insurances on the property.

28 Mr and Mrs H submit that if the transaction does not go ahead it is likely that because Mr H cannot return to work, they will not be able to make the mortgage payments, in which event the property will need to be sold voluntarily, or by way of mortgagee possession. In either event, it is contended that GF would most likely recover the money he spent on the shed should he not be able to continue to live in the property, which Mr and Mrs H believe would be very stressful for him.

29 Mrs H notes that she is the sole beneficiary of Mr H's estate in the event that she survives him.

30 Whilst noting that the value of the shed in the valuation report is less than the cost of its erection which was borne solely by GF, the Public Trustee does not oppose GF purchasing the property for $214,000 (the balance of the mortgage) and considers it to be a decision that an administrator could make in the ordinary course of the management of his estate.

31 The Public Trustee does not support giving a life interest in the property to Mr and Mrs H because of the limitations that would place on GF should he need to fund his future care in, for example, an aged care facility. The Public Trustee would, however, support Mr and Mrs H being able to live in the property free of rent but requiring them to pay the property costs and utilities.

32 At the hearing Mr and Mrs H modified their initial position and Mrs H said they would continue to propose that the transaction go ahead but would not require a life interest in the property to be given to them.

Discussion

33 The matter of the transaction has come to the Tribunal in a way that would not typically be expected. In the first instance, an administrator, when deciding an expenditure on a represented person's estate in the nature of an investment, would form an opinion as to what is in the represented person's best interests and consider the transaction accordingly: s 70 of the GA Act. If the administrator was concerned about a possible conflict of interest in the expenditure, then he or she could seek directions from the Tribunal and would be required to comply with any direction given: s 74 of the GA Act.

34 In this case, the matter is before the Tribunal by way of an application for review of the administration order, the application having been made by the Public Trustee. In this way the Public Trustee has acted something akin to a contradictor and also, it would seem, in its role under s 80 of the GA Act.

35 As I have already mentioned, in this way the Public Trustee has been of great assistance to the Tribunal in its deliberations.

36 In respect to the circumstances of GF's life, I accept the evidence of Mrs H. I further accept that Mr and Mrs H have GF's best interests at heart and that without their support over a number of years he would more likely than not be in institutional care and would not have the life in the community he currently enjoys.

37 It is clearly in GF's best interests that he be able to remain living in the property for as long as he is physically and mentally able to do so.

38 Of course, the future cannot be predicted with any certainty and the transaction, whilst in my view providing significant benefit to GF, nonetheless is attended by some risk.

39 The risks are two­fold, first, how long can Mr and Mrs H continue in their role as carers and primary support for GF and to what extent will the informal arrangements that Mrs H has organised be able to take Mr and Mrs H's place in the event that they are no longer available. Secondly, if the current living arrangements or the future arrangements are no longer viable or GF himself is required to go into care, then how practicable would it be to sell the property at a reasonable price given that the valuation report questions the (current) demand for such a property.

40 Despite these risks I am satisfied that they are outweighed by the obvious advantages to GF in being able to continue to live his current life which is a full life in the community supported by Mr and Mrs H.

41 The Public Trustee, from a financial perspective, accepts that if the property is purchased by GF for $214,000, then the administrator could reasonably make that transaction.

42 I accept the Public Trustee's submission and in doing so, do not need to authorise the transaction given that it is a transaction for value as referenced by the valuation report.

43 I note that the agreement regarding the shed requires Mr H to pay GF for the shed should the property be sold. At clause 3.2 of the agreement the payment is to be an agreed amount 'that reflects the value of the [s]hed to the [p]roperty at that time', taking into account certain factors. If the amount cannot be agreed upon then an 'expert' is to be appointed to determine the value of the shed (clause 3.3).

44 It seems to me that the proposed purchase price of the property ($214,000) and the valuation of the property and shed in the valuation report give effect to the intent of the agreement.

45 I agree with the Public Trustee that the giving of a life interest in the property to Mr and Mrs H would be unduly restrictive on GF's estate and his likely need for funds for his future care. I commend Mr and Mrs H for not pursuing this aspect of their proposal.

46 In these circumstances, therefore, I am satisfied that it is appropriate and in GF's best interests that Mr and Mrs H be permitted to continue to live in the property, free of rent, but to pay the property costs and utility accounts. In this way, Mr and Mrs H will be able to financially continue to live in the property and provide the stable environment and significant support to GF that he requires. In doing so, I take a liberal view of GF's best interests: s 71(5) and s 72(3)(a) of the Act.

47 To further safeguard GFs interests, I expect Mr and Mrs H to seek review of the administration order if their living circumstances or the living circumstances of GF change. I will do this by way of a direction to the administrator.

Order

I make the following orders.

The Tribunal declares that the represented person, [GF];

(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and

(b) is in need of an administrator of his estate,

and the Tribunal orders that:

The administration order dated 12 November 2012 is revoked and an order in the following terms is substituted for it:

1. [Mrs H] of [address] 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 $100.00 per annum on gifts on behalf of the represented person.

3. The Tribunal notes that the administrator proposes to purchase on behalf of the represented person, the property at [address] (the property) and that the Public Trustee, in his role pursuant to section 80 of the Act, does not oppose the purchase of the property for the sum of $214,000.

4. The Tribunal further notes that the administrator and her spouse will not seek a life interest in the property from the represented person.

5. If the property is purchased by the represented person, the Tribunal approves the administrator and her spouse continuing to live in the property free of rent but in payment of the property costs, including but not limited to rates and taxes and property insurance, and payment of utility accounts. This arrangement can continue as long as the administrator, having regard to the circumstances and value of the estate of the represented person, considers it proper and reasonable.

6. The administrator is directed to seek review of the administration order should her living circumstances or the living circumstances of the represented person change such that she or the represented person are no longer able to live in the property.

7. The administration order is to be reviewed by 9 November 2021.

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J MANSVELD, SENIOR MEMBER