ISH - [2021] WASAT 169

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   ISH [2021] WASAT 169
MEMBER:   MS P LE MIERE, SENIOR MEMBER
HEARD:   7 JANUARY 2021
DELIVERED          :   7 JANUARY 2021
PUBLISHED           :   19 MAY 2023
FILE NO/S:   GAA 4260 of 2020

ISH
Represented Person

Catchwords:

Guardianship and Administration Act 1990 (WA) - On review of administration order the Tribunal made directions as to how certain assets of the estate specifically gifted by the represented person in his will should be held to take account of the law of ademption - Orders also made regarding the quarantining of assets from use in inter vivos expenditure until the balance of the represented person's funds were depleted - The Tribunal found that affordable actions taken to maximise the chances that a represented person's testamentary wishes as reflected in a will are able to be carried out constitutes acting in their best interests

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(7), s 68(2)(b), s 71(1), s 72, s 72(1), Sch 2, Pt B, Pt 5, Div 3

Result:

Application allowed

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

Case referred to in decision:

JEB [2016] WASAT 65

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons are, in part, based upon the transcript of the hearing delivered orally on 7 January 2021, with corrections to the transcribed reasons, amendments and adjustments to the transcribed reasons for syntax, grammar and formatting necessary for publication and addition of formal citations).

Background

This is a review of orders made on 19 February 2020 following an application by Royal Perth Hospital. The orders were made appointing the Office of the Public Advocate (Public Advocate) as the represented person's guardian and the Office of the Public Trustee (Public Trustee) appointed as the represented person's administrator. The current application for review is made by SS (applicant), who is the stepdaughter of the represented person. The applicant seeks to have her son, MS, appointed guardian and also seeks orders that a direction be made to the Public Trustee as administrator in respect of certain funds that may be obtained from the sale of the represented person's former home.

Principles to be observed

To make orders for guardianship, I have to be satisfied the represented person is not able to make reasonable decisions about matters affecting his or her person. To make an administration order, I have to be satisfied the represented person is, by reason of a mental disability, not able to make reasonable decisions about matters affecting his or her estate. If I am satisfied in relation to the above matters, I then have to inquire as to whether there is a need for a guardian or administrator and, if there is found to be a need, who is a suitable person or persons to take on that role. In this instance, the appointment of an administrator is not, as I understand it, disputed but, rather, simply that directions be given to the administrator in respect of certain matters. I did not understand from MD, who claims to be either the represented person's defacto or previous defacto, that she was actually pursuing the application in relation to administration. If I am mistaken in relation to that, the following matters still apply.
There is no suggestion that the represented person is not somebody for whom an administration order could be made, or a guardianship order could be made, or that there is not a need for both a guardian and administrator. The medical evidence since February 2020 when these orders were made, has not fundamentally changed. Indeed, if anything, the represented person's mental condition in relation to his cognition may have deteriorated further. I am satisfied and find that the represented person does not have capacity in relation to administration or guardianship and that there is a need for both a guardian and administrator. I will deal with guardianship first.
At the time of the previous hearing, the represented person was in hospital and the doctor's report noted that there had been non-payment of the represented person's telephone, which had resulted in it being disconnected. The service provider report said the represented person relied upon a neighbour for assistance and was said to be socially isolated and noted in the report that there was no family or significant other that could provide assistance.
The only reference to relatives or friends in all the reports at that time was to a neighbour and his wife, who apparently assisted the represented person and, indeed, it was noted that the neighbour's wife had taken the represented person to a podiatrist appointment. It was also noted in the reports that the represented person said he had no family in Perth and that he had had two wives who had unfortunately passed away.
At the previous hearing the Public Advocate was appointed as the guardian and the Public Trustee appointed as administrator, and subsequent to that hearing the represented person has moved into a residential facility.
During the course of the present hearing, the applicant and her son, MS, provided an explanation for their lack of involvement with the represented person at the time the previous orders were made.
MD said why she had either not been to visit the represented person, or alternatively had not been seen by either the neighbour or the represented person's carers, despite her visiting the represented person on a regular basis. It is not clear from her explanation exactly what her position was.
The delegated guardian said she was first contacted by MD, who was enquiring about the represented person's will. MD told me that she found out about the represented person being in the facility, because a friend of hers visited a relative in the same facility and told her that the represented person was now living there, and from that, I assume, found out the Public Advocate was appointed guardian.
In the delegated guardian's report to the Tribunal for these proceedings, she notes that the applicant, SS, and her son, MS, had been visiting the represented person at his residential facility, had been making sure his needs were being met and have supported him in medical appointments and liaised with specialists, and continued to visit him when he was in hospital.

The applicant's lack of involvement in these proceedings

In the first proceedings of the Tribunal when the Public Advocate and Public Trustee were originally appointed, the applicant's situation or lack of contact with the represented person was not clearly explained. However, regardless of what occurred in the past it does appear that currently the applicant and her son, MS, are acting in the represented person's best interests. The delegated guardian supports the appointment of MS, the applicant's son, as the represented person's guardian. There is no mention in the delegated guardian's report of MD having any involvement with the represented person.
The Tribunal is required to only appoint the Public Advocate as a guardian if there is nobody else willing or suitable to take on the role of guardian. I am satisfied that the applicant and MS are both suitable to take on that role and have indicated they are willing to do so.
It is not clear to me what role, if any, MD has had in the represented person's life in the last 10 years. There is no independent evidence to support an assertion that she would be, or is actively involved, in the represented person's care. From the information available to me, her main concern has been with regard to the represented person's will and any possible settlement she might have obtained from the estate.
I am required, when considering these matters, to take into account the represented person's wishes in relation to who should be appointed to be guardian or administrator, as best I can.
MD claims that the represented person had told her this morning, that the represented person wished her to be his guardian. However, it was clear to me from conversations with the represented person that he would have no ability to remember or to actively make an assessment of who ought to be his guardian.
When I asked him about persons he trusted he was unwilling to say who they were, but only that there were various people. He did not point to MD as being somebody to whom he wished to be his guardian.
For the reasons I have just outlined, I consider MS to be the preferred guardian and appoint him as the guardian. I will make the appropriate declarations at the end of this decision, when I make the orders.

Administration

The represented person is now comfortably accommodated in the residential facility. His house where he used to live, however, will need to be sold to pay the refundable deposit. It is possible that the possibility of the represented person's home being sold to pay for the refundable deposit has prompted this application.
In essence, the applicant seeks to have the proceeds of the sale of the house to remain separate from the balance of the represented person's estate and to be held by the Public Trustee for the benefit of the applicant, should a will, a copy of which was provided to the Tribunal, purportedly executed on 1 May 2007, leaving the representative powers to the applicant, be found to be valid. This is because of the legal issues surrounding the law of ademption.

The law of ademption

If the testator gives a specific piece of real estate to somebody else in his or her will and the real estate is sold before the death, the gift of the real estate is regarded as being adeemed and the gift in the will has no effect. The person who was to receive the real estate under the will gets neither it, nor anything else, in substitution for it. The same applies to specific gifts or other assets such as shares and there are certain exemptions, the principle of which is fraud or lack of legal authority.

Guardianship Act

Section 72 of the Guardianship and Administration Act 1990 (WA) (GA Act) provides that the Tribunal may give any direction, make any order or do anything provided for in Pt B of Sch 2 of the GA Act. Paragraph (e) of Pt B of Sch 2 of the GA Act provides that the Tribunal may make such orders as it thinks fit for the purpose of preserving the nature, quality, tenure or development of any property forming part of the estate and direct that any money be carried to a separate bank account and declare that the notional character of which the money in that account bears.
Paragraph (f) of Pt B of Sch 2 of the GA Act provides the Tribunal may, for the purpose of making orders in para (e) of this part or informing itself for the purpose of s 68(2)(b) of the GA Act, that is whether there is an unproven will held by the trustee company, exercise its powers to require the production of documents by calling for inspection of the testamentary instrument.
In JEB [2016] WASAT 65, Member Leslie undertook a thorough analysis of the law for ademption in Western Australia. It would appear, from Member Leslie's analysis, that the law is uncertain. I do not consider it necessary or relevant for me to determine what the state of law in relation to ademption is in Western Australia. It is sufficient, for the purpose of my reasons today, to note that if the proceeds of the sale of the represented person's home are mixed with his general estate, it would have the effect of denying the applicant the possibility of claiming the proceeds of the home that appear on the face of the 2007 will to be left to her.
The Tribunal is satisfied that the existence of s 72(1) of the GA Act and Pt B of Sch 2 of the GA Act, paras (e) and (f), must be given meaning. Reading in the context of the law relating to ademption, the Tribunal finds that it is perfectly logical that the section be utilised to permit the making of directions sought by the applicant.
The Tribunal accepts that what is sought can be accommodated within the scope of the natural meaning of the words of the provision. It is not suggested by any of the parties that the Tribunal does not have power to make the orders sought by the applicant. The question is whether the Tribunal should exercise its discretion and make the direction sought.
The obligation of the Tribunal in all guardianship and administration proceedings are to always act in the represented person's best interests. Acting in the best interests of the represented person includes taking into account the represented person's wishes.
Section 4(7) of the GA Act requires the Tribunal in any proceedings and in any matter relating to the represented person to take into account the wishes of the represented person concerned, as expressed in any manner at the time or gathered from the represented person's previous actions.
In this case, the Tribunal accepts the represented person has made a will in 2007, on the face of it, leaving his estate to the applicant. Whether this will is subsequently found to be valid or challenged is not a proper consideration for the Tribunal or a matter that should bear on the administrator's thinking during the represented person's lifetime. Such matters are too uncertain and the potential effect to be the subject of the Tribunal or administrator's consideration at this time.
I take the view that what can be properly done by an administrator should be done for the testamentary intentions of the represented person to be fulfilled. Indeed, in my view, there is a positive obligation upon an administrator, if he or she is aware of or becomes aware of the terms of a will, to turn his or her mind to the matter when exercising judgment about how to appropriately administer a person's affairs in his or her best interests during his or her lifetime.
I am told by the administrator, the Public Trustee, that MD who claims to be the represented person's de facto or former de facto partner, intends to make a property settlement claim again his estate. MD is named in the will that I have been provided with, and in that will she is left the contents of the represented person's house and 50% of all moneys left in a term deposit savings account in Unibank at 80 Broadway, Nedlands (Unibank). From the Public Trustee's report, there is still a term deposit at Unibank.
In order to give effect to the represented person's wishes to the extent that it is possible, I consider it appropriate to make the orders sought by the applicant with certain modifications.
The applicant seeks to have the moneys from the sale of the house placed in a separate account and from that account, the Refundable Accommodation Deposit (RAD) paid and all other living expenses of the applicant paid out of the balance of the estate.
To give effect to the represented person's wishes, I am mindful that 50% of the moneys that are held in the Unibank account were intended to be left to MD and 50% was also left to the applicant. The money in the Unibank account should also be identified. There will be orders, therefore, that those moneys remain and be maintained separately.
In discussion with the Public Trustee, it became apparent that it would be sufficient to have one account with those moneys and not two separate accounts, hence there will be an order to that effect. The issue of where the represented person's ongoing living expenses should be paid from, in my opinion, ought to be firstly from any moneys not related to the savings or term deposit accounts at Unibank or the proceeds of the represented person's home, and then after those other fees are exhausted should subsequently be paid equally from the two separately identified moneys.
The following orders are made on the assumption that the 2007 will is valid. I am not in a position to, and do not make any findings or make any comments as to whether or not the 2007 will is valid.
As the 2007 will provided to the Tribunal leaves his home to the applicant, together with 50% of all moneys left behind in the saving and term deposit accounts at the Unibank, and 50% of moneys left behind at the saving and term deposit accounts at the same bank to MD I make the following orders.

Orders

The Tribunal declares that the represented person, [ISH], is:
(a)unable, by reason of a 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.
(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 a guardian.

The Tribunal orders:
Administration

The administration order dated 19 February 2020 is amended so that it now reads:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.Pursuant to s 71(1) and in particular paragraph (e) of part B of schedule 2 of the Guardianship and Administration Act 1990 (WA), it is ordered that:
(a)the plenary administrator of the estate of the represented person retain in a separate bank account (first separate bank account) the net proceeds obtained from the sale of the property owned by the represented person at [address];
(b)any refundable accommodation deposit which is required to be paid by the administrator on behalf of the represented person be paid from the first separate bank account;
(c)the administrator apply to the first separate bank account any funds received by way of refund of any refundable accommodation deposit which has been paid on behalf of the represented person;
(d)the administrator retain as a second and separate bank account (second separate bank account) the Unibank term deposit account [number] (Unibank account), or should the administrator consider it desirable to withdraw the monies from the Unibank account, the proceeds from the Unibank account are to be retained in a separate bank account (new second separate bank account);
(e)save to the extent that the funds retained in either the first separate bank account or any second separate bank account be required to meet the ongoing reasonable needs of the represented person during his lifetime, the contents of the first separate bank account and any second separate bank account be notionally held by the administrator for the future benefit of such party or parties as may be found by order of the Supreme Court of Western Australia to be entitled to the funds in the first separate bank account and/or any second separate bank account under the last Will and Testament of the represented person or to such person or persons as may be agreed by all interested parties to be entitled to the funds in the first separate bank account and/or any second separate bank account;
(f)the proceeds of the first separate bank account and any second separate bank account shall not be utilised by the administrator to meet the ongoing reasonable needs of the represented person during his lifetime unless and until all other monies forming part of the estate have been exhausted;
(g)should all of the monies forming part of the estate other than the monies in the first separate bank account and any second separate bank account be exhausted, the funds in the first separate bank account and any second separate bank account are to be drawn upon equally to meet the reasonable needs of the represented person.

3.The administration order is to be reviewed by 6 January 2026.

Guardianship
The guardianship order dated 19 February 2020 is revoked and substituted with an order in the following terms.
4.[MS] of [address] is appointed limited guardian of the represented person with the following functions:

(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); and
(c)to determine the services to which the represented person should have access.

5.The guardianship order is to be reviewed by 6 January 2026.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, SENIOR MEMBER
19 MAY 2023