IC - [2023] WASAT 33 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   IC [2023] WASAT 33
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
MR R POVEY, MEMBER
MS R BUNNEY, MEMBER

HEARD:   17 FEBRUARY 2023
DELIVERED          :   17 FEBRUARY 2023
PUBLISHED           :   3 MAY 2023
FILE NO/S:   GAA 5394 of 2022

VC
Applicant
AND
IC
Represented Person

Catchwords:

Guardianship and Administration Act 1990 (WA) s 17A – Review of a decision by single member of Tribunal – Appointment of an administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A(1), s 64, s 68, s 68(3), s 80
Family Provision Act 1972 (WA), s 6
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)

Result:

Public Trustee and private administrator appointed for specific functions

Category: B

Representation:

Counsel:

Applicant	:	N/A
Represented Person	:	N/A

Solicitors:

Applicant	:	N/A
Represented Person	:	N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

(This judgment was delivered extemporaneously on 17 February 2023 and has been edited to correct matters of expression, include complete references, and add formatting)

Introduction

VC has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for a review of a decision that was made by a single member of the Tribunal, Senior Sessional Member Creed, on 7 December 2022.
In that decision, the learned Senior Sessional Member declared that the represented person, IC, is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
The learned Senior Sessional Member then confirmed earlier orders which had been made in which VC had been appointed as IC's limited guardian with functions of:
(a)as the next friend, commencing, conducting or settling legal proceedings on behalf of the represented person except those concerning his estate; and
(b)as the guardian of the represented person, defending or settling any legal proceedings taken against the represented person except proceedings relating to the estate.
The learned Senior Sessional Member also ordered that those guardianship orders were to be reviewed by 7 December 2023.
The learned Senior Sessional Member also made orders by which she:
(a)appointed the Public Trustee as the plenary administrator of IC's estate with all of the powers and duties conferred by the GA Act;
(b)directed the administrator to investigate whether proper provision had been made for the represented person in the deceased estate of his late mother who had passed away in 2021; and
(c)ordered that those administration orders were to be reviewed by 7 December 2023, which is the same time as the guardianship orders are to be reviewed.

Issues in the review application

VC only sought a review of the orders as they relate to administration. She does not dispute that her brother, IC, is someone for whom administration orders could be made. She submitted that she could manage his estate, which consists really only of his pension and some modest savings, and that she should be appointed as the administrator rather than the Public Trustee.
In particular, VC said not only could she perform the role of the administrator but her doing so would reduce the fees which would be incurred and be paid out of IC's estate if the Public Trustee were to administer IC's estate.

Outcome

For the reasons that follow, we have concluded that there is a need for the appointment of an administrator to deal with IC's estate. We have also decided that the issue of whether or not litigation should be commenced and settled about his mother's estate should be dealt with by the Public Trustee as administrator, and all other day-to-day matters should be dealt with by VC as the administrator.

The nature of the review

Section 17A(1) of the GA Act permits any party who is aggrieved by a decision of the Tribunal consisting of one member to request the President of the Tribunal to arrange for a Full Tribunal to review the determination. Reviews come within the Tribunal's review jurisdiction.
In exercising the review jurisdiction, the hearing of a review is conducted as a hearing de novo, which means we are not confined to matters that were before the original decision‑maker: s 27(1) State Administrative Tribunal Act 2004 (WA) (SAT Act). We are entitled to, and have, considered new material including the evidence that we received in the hearing today on the review application.
The purpose of the review is to produce the correct and preferable decision at the time of the decision on review: s 27(2) SAT Act. This means that we are not looking at whether the previous decision was wrong. Circumstances may have changed such that what was right at the time when the original decision was made is no longer. We are only concerned to find the correct and preferable decision at the time of the decision on the review.

Principles governing proceedings under the GA Act

We turn then to consider the principles which govern proceedings under the GA Act. The Tribunal is required to observe the principles which are set out in s 4 of the GA Act. That section provides that the primary concern of the Tribunal is the best interests of the represented person: s 4(2) GA Act. It also provides that every person is presumed to be capable of managing their own affairs and making reasonable judgments about their estate until the contrary is proved to the satisfaction of the Tribunal: s 4(3) GA Act. That presumption applies in every proceeding under the GA Act.
Additionally, in considering any matter relating to a represented person, the Tribunal is required, as far as possible, to take the views and wishes of that represented person into account: s 4(7) GA Act.
The GA Act also provides that an administration order should not be made if the needs of the proposed represented person, in the opinion of the Tribunal, can be met by less restrictive means: s 4(4) GA Act. Any appointment should be in terms that impose the least possible restrictions as the circumstances permit on the represented person's freedom of decision and action.
Those are the principles that guide us in the conduct of the hearing and in the decision that we make in relation to the review application.

Evidence before the Tribunal on the review application

We heard from IC about his views and wishes. He was able to briefly tell us that he is happy that VC, his sister, looks after his money and also that she has done so in the past. IC was initially a little bit confused about who he wanted to look after his money and his estate, but it became apparent to us as he gave his evidence that he wants his sister, VC, to keep doing what she has done for him in the past.
We have also heard from the Public Trustee's legal representative, and we have had regard to the reports that have been filed by the Public Trustee that form part of the Hearing Book.
We have heard evidence and submissions from VC; she competently gave evidence herself and advanced her views. Her submissions were also supplemented with submissions made on her behalf by a carer advocate. We have also had regard to all of the correspondence which VC sent to the Tribunal and which forms part of the Hearing book.
We have also had regard to the medical report of Dr H that is in the Hearing Book and to all of the other documents which were contained in that Hearing Book.

Appointment of an administrator

Pursuant to s 64(1) of the GA Act, the primary questions for the Tribunal on review are:
(i)whether IC suffers from a mental disability;
(ii)whether, by reason of that mental disability, he is unable to make reasonable judgments in respect of matters relating to his estate; and
(iii)whether he is in need of an administrator.
It is only if each of those questions are answered 'yes' that we move on to consider who should be appointed as administrator.

Whether IC has a mental disability

The expression 'mental disability', when used in the GA Act, has a specific defined meaning. It is defined in s 3 of the GA Act as including an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
The evidence in this case establishes to our satisfaction that IC is someone who does have a mental disability. The evidence of Dr H makes that clear. VC agrees with Dr H's evidence and accepts that IC has a mental disability. In his medical report, Dr H says that IC's condition is static: that is, it is not getting better, and it is not getting worse.
Dr H says that IC is incapable of making decisions about financial and legal matters, personal decisions, accommodation, and services. That is consistent with the evidence that VC has given us both orally today and more comprehensively in the information contained in her written submissions about her brother's history. In that information, she told us that she and her mother originally cared for IC and since her mother's passing she alone has had to organise the 24 hours a day, 365 days a year care that IC needs, and which she had to advocate for through the NDIS appeals process. Her evidence was that the NDIS has finally accepted that IC requires 24-hour care.

Whether IC is, by reason of a mental disability, unable to make reasonable judgments in respect of matter relating to all or any part of his estate

We turn then next to explain why we are satisfied that it is by reason of that mental disability that IC is unable to make reasonable judgments in respect to matters relating to his estate. People, even those with a mental disability, can sometimes make decisions about their estate; just as conversely, people who do not have a mental disability can make bad decisions about their estate. It is only if one has a mental disability and, because of that mental disability, cannot make reasonable decisions that the complex question posed in the GA Act is answered. That involves the application of a subjective and objective test.
The Tribunal has to consider whether the person in respect of whom the application is made has the ability to make reasonable judgments about their estate. That is subjective because their ability to make reasonable judgments needs to be assessed in relation to their estate. For example, if one has a very complicated estate and cannot make complicated decisions, it may be said that the individual lacks the ability to make reasonable judgments about their estate. However, if the estate is small and the individual only has difficulties with making complicated decisions, that person may not have to make any because the estate is small and the decisions are not complicated. In such a case, a different result might be reached.
At the same time, the Tribunal has to look at whether or not the person concerned has the ability to engage in the mental processes that are required to make reasonable judgments, and that is an objective test.
In this particular case, the bulk of IC's estate at the moment consists of a Centrelink pension and some savings in a bank account. But there is a potential aspect of his estate — whether or not he is entitled to something from his deceased mother's estate — that will require complex processing to make decisions about. And clearly, according to Dr H, IC's mental disability is the reason why IC cannot engage in that reasoning process.
Dr H's conclusion is not disputed by VC, and we are satisfied that it is the intellectual disability with which IC was born that causes him not to be able to make the judgments that are required in respect of, not only the complicated matter of the potential legal claim but also the day‑to‑day management of his funds. We are satisfied that those issues have been established.

Whether IC is in need of an administrator

We then have to consider whether there is a need for an administrator to be appointed. Sometimes, families can manage to deal with a person's estate informally without the need for an administrator. Sometimes an administrator is not required because an attorney has been appointed under an enduring power of attorney. In this case, there is no enduring power of attorney in place.
In our view, it is impossible to deal with the potential litigation that might need to be brought informally in IC's case. There will need to be a substitute decision-maker to deal with that issue. We did separately consider whether or not there was a need for an administrator to deal with the remainder of his estate; that is, the funds in IC's bank account. It has not been submitted to us that management of that part of IC's estate could be done without an administrator. In this particular case, there has been an administrator appointed since 2017. In those circumstances, we are satisfied that IC is in need of an administrator and there is no less restrictive means available for the management of his estate other than the appointment of an administrator.

Who should be appointed as administrator?

We next turn to the question of who should be appointed as the administrator to deal with IC's estate.
Section 68(1) of the GA Act provides that an administrator needs to be an individual of or over the age of 18 years, who has consented to act and who, in the opinion of the Tribunal, will act in the best interests of the represented person and who is otherwise suitable to act as the administrator.
The Tribunal has to take into account factors such as the compatibility of the proposed appointee with the represented person and the wishes of the represented person: s 68(3) GA Act.
In this case, VC has proposed herself as administrator. We are satisfied that VC is over the age of 18 so we are satisfied that she meets that those initial criteria for appointment.
We turn next to consider VC's suitability. VC has explained to us, both in her oral and written evidence, how much she has done in the past to care for her brother, IC, and to ensure that he has the best quality of life possible. She gave evidence of the steps that she has taken to provide suitable accommodation for him and to advocate for him moving to suitable accommodation from what was found to be unsuitable accommodation in residential care; of the way in which she advocated for increased payments for IC through the NDIS appeals process of having to give up some work in order to be at home to ensure IC settled into home well and about services and supports she put in place that have enabled her to be just a sister to IC rather than his carer as she has had to be from time to time throughout his life. We understand that some of what she has done to care for her brother's best interests has not been easy and has, at times, been to her own detriment. In that regard, we refer particularly to the advocacy and caring she undertook whilst dealing with her cancer treatment and the death of her, and IC's, mother.
We were very impressed with VC's evidence about those matters, and we are very satisfied that VC is suitable to deal with the management of IC's day‑to-day financial affairs and that she will act in his best interests in doing so.
VC expressed her concerns about the cost of the administration of the estate by the Public Trustee being unnecessary. In this case, given the estate is small and that she can perform the role, we have had regard to that concern. VC has previously acted as IC's administrator, though there were some issues raised by the Public Trustee about VC's compliance with the reporting requirements set out in s 80 of the GA Act. However, it is apparent on the evidence that we have heard that VC did engage with the Public Trustee about the matters of concern to them regarding her reporting obligation and that she provided to the Public Trustee what was required reasonably promptly.
The concern that was raised by the Public Trustee, about whether some of the payments that VC reported were appropriate for VC to have made, seems to remain unresolved. We have no evidence before us that the relevant payments were inappropriate and so we are not going to take a view about that. All we can say is that there is no evidence upon which we could find that they were improper.
If, having examined the relevant documents, which they have had since September 2022, the Public Trustee comes to the view that there were improper payments made which would make VC an unsuitable administrator, then the Public Trustee may make another application on the basis of a change of circumstances. But, at this point, we are not in any position to take that view ourselves and we are satisfied that VC, having performed the role of administrator previously and having provided reports as required, is suitable to perform the role of administrator in her brother, IC's, best interests.
There was an issue raised by the Public Trustee about a potential claim available to IC in relation to his mother's estate. The home in which VC and IC live together was their mother's home and, according to VC, is to pass to her under her mother's will. It appears that IC may not be entitled to anything under that will. We appreciate that VC does not think there is a conflict of interest in her acting as IC's administrator and being the beneficiary of her mother's estate under her will and that she considers that, with time, she will be able to secure for IC an entitlement to live in the home for the rest of his life as his mother wished. However, in our view, that may need to be secured by dealing with the mother's estate, not by dealing with whatever might be VC's property after her mother's estate passes to her.
That conflict of interest for VC is inescapable. VC cannot, as the beneficiary of the estate, act against her own interests and bring a claim for her brother, which would deprive her of the benefit of the full value of the estate to which she would otherwise be entitled.
We accept her evidence that she has every intention of looking after IC and making sure he has care for the rest of his life. We are not disputing the genuineness of those views, but there is a conflict that exists. Nothing has been legally secured for IC out of his mother's estate and the law, regrettably, is all too familiar with promises that are made that cannot be kept in the future notwithstanding whatever good intentions there were at the time they were made.
Consideration does need to be given to whether or not a claim under the Family Provision Act 1972 (WA) should be made in relation to IC and VC's mother's estate, which would secure some part of that estate for IC. It might be that none is necessary because it may be that the will does make adequate provision for IC. We simply are not in a position to know, because we do not have a copy of the will.
It might be that having looked at the will, the Public Trustee decides, in fact, that provision has been made for IC and that, therefore, there is no concern and no need to commence any sort of proceeding. We are simply not in a position to know that, nor is the Public Trustee at this time. And given what VC has told the Tribunal about being the beneficiary, and IC being left out of the will on the basis that she would make arrangements for his care, it does seem that consideration should be given to making some sort of claim.
In circumstances where no other party is being proposed to take on that part of the administration of IC's estate, we have no option but to appoint the Public Trustee to perform that function.

Orders

The orders that we are going to make now as a result of that decision are as follows:
1.The Tribunal declares that the represented person, IC, is:
(a) unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b) in need of an administrator of his estate.
2.The administration orders made by Senior Sessional Member Creed on 7 December 2022 are revoked.
3.VC of [address] is appointed plenary administrator of the represented person's estate with all of the powers and duties conferred by the GA Act save as in relation to the matters in order 4.
4.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator of the represented person's estate with all the powers conferred by the GA Act which are necessary to:
(a)seek legal advice on behalf of the represented person in relation to a possible claim in relation to his late mother's estate (being a prospective claim under s 6 of the of the Family Provision Act 1972 (WA)); and
(b)bringing and defending legal proceedings in the name of the represented person including settling proceedings if appropriate in relation to the claim.
5.The administration orders are to be reviewed by 16 February 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MA
Associate to Deputy President Judge Glancy
3 MAY 2023