HL and MI - [2006] WASAT 25

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: HL and MI [2006] WASAT 25

MEMBER: MS D DEAN (MEMBER)

HEARD: 18 JANUARY 2006

DELIVERED : 9 FEBRUARY 2006

FILE NO/S: GAA 1919 of 2005

BETWEEN: HL
Applicant
AND
MI
Respondent

Catchwords:

Application for administration Capacity Unpaid nursing home fees Application to Department of Health and Ageing for reduction in nursing home fee on the basis of hardship Cultural issues in relation to the appointment of an administrator Administrator appointed

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 43(1), s 64(1), s 70(1), s 70(2)

Result:

Wife and daughter appointed joint plenary administrators

Category: B

Representation:

Counsel:

Applicant: N/A
Respondent: N/A

Solicitors:

Applicant:
Respondent:

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal’s decision

In this case, the applicant sought the appointment of an administrator for the represented person, an elderly man with dementia, living in a nursing home. The application was made because of a substantial unpaid accommodation debt. The represented person's estate was being informally managed by his wife who was unable, or unwilling, to pay the full nursing home fees which she considered excessive. The nursing home management had encouraged the wife to apply to the Commonwealth Department of Health and Ageing (Department) for a reduction in the nursing home fee assessment. The wife made some attempts to comply but was unable to supply the requested information to the Department. Eventually, the represented person's children became aware of the gravity of the situation and the tenuous nature of their father's accommodation, and arranged, with their mother's agreement, for the outstanding nursing home fees to be paid.
The nursing home decided to proceed with their application for administration as they were concerned that the best interests of the represented person were not being addressed by the wife in the management of the joint estate. The family agreed that their mother had been struggling with management of the joint estate while grappling with grief in respect of the effective loss of her relationship with her husband of more than 50 years. Added to this was the stress of having to deal with the loss of a substantial amount of money to an unscrupulous builder. The family reported that the mother had recovered from this period of stress and was now able, with help, to effectively manage their father's estate. One of the daughters proposed herself as joint administrator with her mother. The Tribunal's decision was to appoint the mother and daughter as joint plenary administrators.

Background

On 2 November 2005, the applicant filed an application with the State Administrative Tribunal for the appointment of an administrator for MI, an elderly man with a diagnosis of dementia. MI is a resident of the nursing home which employs the applicant.
MI is married with five adult children. At the time of the application, MI's wife had been managing the couple's finances for some years.
In her written application and other information she provided to the Tribunal prior to the hearing, the applicant informed the Tribunal that MI has a diagnosis of dementia which has advanced to the point that he needs assistance with all his activities of daily living.
At the time of the application, there was an outstanding accommodation debt of $11 127.13 consisting of the unpaid accommodation charge component of the nursing home fees. The applicant reported that the wife was not managing MI's finances in the best interests of her husband. Attempts by the nursing home to get the wife to pay the outstanding fees had been unsuccessful, as she believed the fees were too high. She had been paying the daily care fees but said she had been informed by Centrelink that she did not have to pay the accommodation charge component.
The applicant reported that she had had an informal discussion with the son, EI, and his wife about the outstanding debt and her concerns about the wife's management of MI's estate.
The applicant further reported that, at the suggestion of the nursing home, the wife had made an application based on financial hardship to the Commonwealth Department of Health and Ageing (Department) for a reduction in the nursing home fees. The application could not be completed because the wife had not provided the Department with all the required information.

Relevant legislation

The principles to be observed by the Tribunal when making determinations in relation to applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act).
These principles are:
"(2)(a) 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.
(b)Every person shall be presumed to be capable of
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d)A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f)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."
Section 64(1) of the GA Act states that before an administrator can be appointed, the Tribunal must be satisfied the person:
"(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate."
Section 70(1) and s 70(2) of the GA Act provides for the best interests of the represented person.
"(1)An administrator shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible
(a)as an advocate for the represented person in relation to the estate;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from financial neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment."

Information before the Tribunal

Medical and other reports

Written reports were received by the Tribunal from the applicant, the general practitioner (GP), the facility care manager and the Public Advocate. In addition, the Tribunal had access to records written by the applicant of conversations she had with EI, son of MI, during a chance meeting with EI and his wife and during a telephone call with EI.
In her written application and separate report, the applicant stated that MI has dementia and requires assistance with all activities of daily living. She reported that at the time of the application, there was an outstanding debt to the nursing home of $11 127.13. Attempts had been made by the nursing home to have this debt paid but the wife had resisted these.
The GP stated that MI has a diagnosis of "progressive" Alzheimer's disease and is incapable of making reasonable decisions in respect of any aspect of his life or finances. The GP stated that MI would not be able to make any contribution to proceedings if he attended the hearing.
The facility care manager provided information about MI's general health and welfare but did not make any comment on his capacity to make reasonable decisions in respect of his life or finances.
The Public Advocate "observed [MI] to be totally dependent on service providers to meet his daily needs". In a telephone conversation with the wife, the Public Advocate was informed that the nursing home was charging far too much money and that the wife had paid her husband's daily care fees but was not prepared to pay the accommodation fees.
The wife informed the Public Advocate of some details of the sale of the family home and the subsequent modification of an investment property owned by the couple into which the wife subsequently moved and was living at the time of the application and the hearing. The wife reported to the Public Advocate that she had made a significant cash payment to a builder to do the alterations and modifications to make the house suitable for her to move into. The builder subsequently disappeared without completing the work. What he did complete was substandard and required a significant amount of money to have rectified. The wife borrowed significant funds to complete this project. In discussion with the wife, the Public Advocate explained that "some of the proceeds from the sale of [the family home] belonged to [the husband]". The wife said that her husband would want her to use the money to house herself.
After discussion between the Public Advocate and the children of MI, the outstanding accommodation fee was paid. The Public Advocate assessed MI as a person for whom an order could be made, and recommended that consideration be given to the appointment of the wife and RI, daughter of MI, as joint administrators.

Hearing

The hearing was attended by the applicant, a social worker at the nursing home where MI resides, a clerical person from the nursing home, the Public Advocate, the wife, three daughters and one of MI's two sons.
The applicant explained to the hearing that she had decided not to withdraw her application for an administrator despite the fact that the reason for the application had been the unpaid fees and these had recently been paid. Her stated reason for continuing with her application was her concern that MI's estate was not being managed in his best interests.
The applicant informed the Tribunal that her decision to proceed with the application after payment of the outstanding fees was based on her concern about the wife's "capacity to … manage the finances and … her willingness, ability, capacity to … understand and really appreciate the seriousness of the situation and the family's capacity to actually understand this too, and actually respond".
The applicant outlined her numerous unsuccessful attempts over an extended period of time to discuss the problem of unpaid fees with the wife, who she believed was, either deliberately or because of a language difficulty, not prepared to follow through with the application for a reduction of fees or the payment of the outstanding fees. The wife's attitude did not change until the matter was brought to the Tribunal and the Public Advocate became involved in preparation for the Tribunal hearing. The applicant believed that, without this intervention, the matter of outstanding fees would not have been resolved, and she was concerned that, without the appointment of an administrator, there was no guarantee that the situation would not occur again.
There was lengthy discussion at the hearing around the issue of the long delay in the payment of the accommodation fees. The family explained that their mother is a very private person who prefers to manage things, particularly financial matters, on her own and that the family had not been aware until recently of the unpaid fees. The applicant and clerk from the nursing home detailed the many attempts that had been made by the nursing home to have the fees paid, including telephone calls to, and discussions with, the wife and, in the latter stages, letters to the children of MI.
The family pointed out that their mother had been "in a bad place" while grieving for the loss of her husband of more than 50 years during the period of the unpaid fees, and that this had impacted on her ability to effectively manage and make appropriate decisions about the couple's finances. The general consensus was that their mother was now "in a good place" and "what she used to be like" before the loss of her husband.
Prior to his admission to the nursing home, MI and his wife had entered into an agreement with a builder and paid him tens of thousands of dollars to renovate the investment property they jointly owned. The builder proved to be unregistered and incompetent. They paid him an upfront fee of $35 000 for work he did not complete and which then had to be completed by a competent builder. It later transpired that the builder was unregistered, and he is being pursued for reimbursement of the monies paid to him by the couple.
After her husband was admitted to the nursing home, the wife took out a mortgage on the family property. The Tribunal was unable to ascertain the extent of this mortgage but understands that it was in excess of $100 000. The Tribunal was also unable to ascertain the exact figure paid to the original builder or, for that matter, the extent of the couple's estate.
The wife sold the family home and moved into the newly renovated investment property, but as a result of the renovation costs and monies paid to the first builder, found herself short of working capital.
In discussions about the use of the couple's money to finance her move into her current accommodation and her resistance to paying the accommodation fees for her husband, the wife informed the Tribunal that her husband would want her to use the couple's money to house herself appropriately. She said she considered the nursing home fees excessive and had been informed by Centrelink that she did not need to pay the Commonwealth component of the fee.
The Tribunal was satisfied from the evidence provided by the wife that she believed that she did not have to pay the Commonwealth component of the nursing home fee and, indeed, believed that she had been told by Centrelink that she only needed to pay the daily care fee and not the accommodation fee.
At the suggestion of the nursing home, the wife made an application to the Department for a reduction in the nursing home accommodation fee on the basis of hardship. This application had not been processed because the wife, despite numerous requests from the Department, did not provide all of the information required by the Department for it to complete its assessment. When questioned about this in the hearing, the children indicated that they had not been aware of the problems their mother was having in providing the required information to the Department, and when they were informed of the problem, they provided the requested information to the Department. At the time of the hearing, the assessment had not been completed.
A short time before the hearing, the wife, after discussions with her children who had come to realise the gravity of the situation in that MI was at risk of losing his accommodation, paid the outstanding accommodation fee and instructed the bank to pay by direct debit the full amount each month. The wife and children were keen to prevent the matter proceeding to a Tribunal hearing.
It was clear, from information provided at the hearing, that it was not until after the application for an administrator had been made that the wife informed her children of the situation and consulted with them as to the best course of action to take from that point on. It was as a result of this consultation and the inclusion of the children in the matter that the outstanding fees were paid and the requested information was provided to the Department.
The Tribunal accepted the argument of the applicant that, without the application for administration, the matter would not have been resolved and the wife would have continued to refuse to pay the fees.
There was lengthy discussion about the cultural implications in respect of a joint appointment of the wife and daughter of MI, given the fact that the eldest son, who had not been able to attend the hearing due to illness, would normally expect to take over from his father. It was agreed by all parties at the hearing that the Public Advocate's recommendation of the joint appointment of the wife and daughter as administrators of the estate of MI was the most viable and appropriate option.

Findings and Reasons

Capacity

It was clear, from the evidence of the applicant, the medical evidence and information provided at the hearing, that MI is not capable of making reasonable decisions in respect of, or managing any aspect of, his financial affairs. He is, and has been for a substantial period, dependent on others, particularly his wife, for these matters. The Tribunal is satisfied that MI is a person for whom an order can be made.

Need

As set out in the legislation, the appointment of an administrator requires the Tribunal to find there is a need for an order and that the needs of the person cannot be met by any means less restrictive of the person’s freedom of decision and action.
In this case, MI is dependent on others for the management of his financial affairs, which have been informally managed by his wife for some years. Unfortunately, the informal management of MI's money by his wife has resulted in his accommodation in the nursing home being in jeopardy because of unpaid accommodation charges. The Tribunal finds that the wife has exercised poor judgment in her management of her husband's estate, and this has resulted in a significant loss of funds to the joint estate.
The wife has made an application to the Department for a reduction in the nursing home fee based on hardship but has not been able to complete this application and provide the information that, on several occasions, the Department has requested of her.
The Tribunal finds that there is an ongoing need for an administrator to oversee and manage the day-to-day finances of MI, including the payment of nursing home fees and to complete the application to the Department for a fee reduction.

Wishes of the represented person

The Tribunal is required, as far as possible, to take into account the wishes of the person whom the application concerns. In this case, the Tribunal was not able to ascertain the wishes of MI but found that, given the long and apparently loving marriage of MI and his wife, MI would have wished that his wife continue to be involved in managing his finances and would also wish for her to be financially provided for.

Best interests of the represented person

The Tribunal finds that MI's best interests have not always been served by his wife in her management of his estate. The Tribunal does not consider this a reflection of the wife's level of devotion and love for her husband, but rather the result of some misunderstandings on her part compounded by her grieving for the loss of her husband. The Tribunal accepts that MI would, as his wife stated, want her to use the joint funds to provide appropriate accommodation for her and to ensure that she has adequate funds to meet her day-to-day needs. Nevertheless, the Tribunal is concerned that this may leave MI short of the funds necessary for the payment of his accommodation and any additional services he may need, either now or in the future. The administrator will need to ensure that adequate funds are available for MI's needs. The Tribunal is satisfied that the task of managing MI's estate was difficult for the wife to manage on her own, and finds that it is in MI's best interests for the wife to have the support and help of another interested party in this task.

Decision

The Tribunal considered all the evidence available prior to and at the hearing, and was satisfied that MI is a person for whom orders could be made. Further, the Tribunal was satisfied that it was in MI's best interests that an administration order be made.
A short order was made to ascertain if it was workable, given the wife's history of independence, her reluctance to disclose information, and her reluctance or inability to clarify the extent of the estate.

Order

The Tribunal made the following order:
1.The wife and daughter be appointed joint plenary administrators of the represented person's estate with all the power and duties conferred by the Act.
2.This order to be reviewed by 18 January 2007.

I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER