JB and CL
[2008] WASAT 105
•19 MAY 2008
JB and CL [2008] WASAT 105
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 105 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:60/2008 | 22 FEBRUARY 2008 20 MARCH 2008 | |
| Coram: | MS M JORDAN (SENIOR SESSIONAL MEMBER) | 19/05/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | No additional gifting allowed beyond the amount of $2,500.00 Administrator re-appointed | ||
| B | |||
| PDF Version |
| Parties: | JB CL |
Catchwords: | Guardianship and administration Review of administration order Gifting Application by administrator to make additional gift from the estate to herself in addition to $2,500.00 allowed in order Section 71(5) of the Guardianship and Administration Act 1990 (WA) Exercise of discretion consistent with intention of the legislation |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 70, s 71(5), s 72(3), s 77, Pt 6 |
Case References: | Re Mrs M Unreported decision of the Guardianship and Administration Board delivered 13 June 2000, Mr Keith Chapman, President, Mrs Pamela Eldred, Deputy President and Mr John James, Member |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JB and CL [2008] WASAT 105 MEMBER : MS M JORDAN (SENIOR SESSIONAL MEMBER) HEARD : 22 FEBRUARY 2008
- 20 MARCH 2008
- Represented Person
AND
CL
Applicant
Catchwords:
Guardianship and administration - Review of administration order - Gifting - Application by administrator to make additional gift from the estate to herself in addition to $2,500.00 allowed in order - Section 71(5) of the Guardianship and Administration Act 1990 (WA) - Exercise of discretion consistent with intention of the legislation
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 70, s 71(5), s 72(3), s 77, Pt 6
(Page 2)
Result:
No additional gifting allowed beyond the amount of $2,500.00
Administrator re-appointed
Category: B
Representation:
Counsel:
Represented Person : Self-represented
Applicant : Self-represented
Solicitors:
Represented Person : Self-represented
Applicant : Self-represented
Case(s) referred to in decision(s):
Re Mrs M Unreported decision of the Guardianship and Administration Board delivered 13 June 2000, Mr Keith Chapman, President, Mrs Pamela Eldred, Deputy President and Mr John James, Member
(Page 3)
Summary of Tribunal's decision
1 An application for review of an administration order which appointed her as administrator for her mother was made by CL, seeking an authority to make an additional gift from the estate of $17,179.59, or in the alternative, $10,000.00. CL had been appointed sole administrator for her mother who was suffering from dementia. The State Administrative Tribunal did not authorise the gift as it was considered to be inconsistent with the overall intention of the Guardianship and Administration Act 1990 (WA). The amount of $2,500.00 permitted in the order under review was maintained.
Reasons
2 The decision in this case relates to a review of an administration order dated 12 April 2007 by which CL (applicant) was appointed plenary administrator for her mother, JB (the represented person).
3 The applicant filed an application for review of the administration order for the inclusion in the administration order of an authority to make an additional gift from the estate of the represented person.
4 A gift from the estate of a person the subject of an administration order may be authorised by the State Administrative Tribunal (the Tribunal) pursuant to s 71(5) of the Guardianship and Administration Act 1990 (WA) (the Act).
5 Part 6 of the Act deals with the administration of estates. Section 72 is headed "Further provisions as to authority of administrators" and subsection 3 provides:
"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
(b) make a payment in respect of a debt or demand that the represented person is not obliged by law to pay."
6 Section 71(5) provides:
(Page 4)
- "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)(a), 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."
7 The gifting allowed in the order dated 17 January 2008 in the maximum amount of $2,500 per year relates to birthday and Christmas gifts for children, grandchildren and great grandchildren.
8 The matter first came on for hearing on 22 February 2008, at which the applicant was the only party present and appeared by telephone. At that time the applicant had not provided written information which had been sought from her by the Tribunal.
9 The information sought from the administrator related to factors identified by the Full Board of the Guardianship and Administration Board (the Board) for members to consider when exercising the discretion under s 71(5) of the Act. (Re Mrs MUnreported decision of the Guardianship and Administration Boarddelivered 13 June 2000, Mr Keith Champman, President, Mrs Pamela Eldred, Deputy President and Mr John James, Member).
10 The jurisdiction and functions of the Board were absorbed by the Tribunal in January 2005.
11 While not binding on the Tribunal, decisions of the Board may provide guidance to the members of the Tribunal when dealing with applications made under the Act.
12 When dealing with an application for "gifting" under s 71(5) the Board identified the following as some of the factors to be taken into consideration when exercising the discretion:
1) The relationship between the represented person and the beneficiary of the gift.
2) The extent of the estate of the represented person.
3) The income and expenditure of the estate.
4) The age and needs of the represented person.
(Page 5)
- 5) The purpose of the gift.
6) The likelihood of the represented person acceding to the request if she had capacity.
7) The alternatives open to the recipient.
8) The attitude of those who are likely to benefit from the estate of the represented person on her death.
9) The needs of any other person dependant upon the represented person.
13 The proposal made by the applicant in her application for review is that a gift of $17,179.59 be made to her from her mother's estate.
14 At the hearing on 22 February 2008, the applicant explained that this sum of money was the proceeds of a whole of life endowment policy that her mother had taken out with MLC in the applicant's name, and which in March 1997, she had signed the proceeds over to her mother, despite being the legal owner of the policy and being entitled to those funds herself.
15 The applicant told the Tribunal that she had agreed to her mother receiving the proceeds of the policy at the time, as she was concerned that her mother may need these funds for travel and financial support as she was having a battle living on her pension payments.
16 The applicant did not appear to appreciate that, having signed the proceeds of the policy over to her mother, she had no further legal entitlement to same.
17 The applicant then expressed her alternative application, that should the Tribunal not be willing to grant her written application, then she would instead seek the sum of $10,000 by way of a gift which had been the subject of a previous application made by her and refused on 12 April 2007.
18 During the course of the hearing on 22 February 2008, the applicant informed the Tribunal that if she was successful in either application, she would give half of the additional gift to her sister, YS, who lives in Canada. The previously refused application seeking a gift of $10,000 was for half of the proceeds of that additional gift to be received by YS.
(Page 6)
19 At the hearing on 22 February 2008, as the applicant had not responded to the written request for information, the information was obtained from her orally. As she proposed that half of the proceeds of the proposed gift would be paid to her sister, YS, the hearing was adjourned following the conclusion of the evidence to allow the Tribunal to seek the same information from YS. When that information was received by letter, the matter was decided without listing of the matter for further evidence.
20 In summary, the information before the Tribunal in respect of each of the factors identified by the Board is as follows:
1) The proposed beneficiaries of the gift are the applicant and her sister, YS.
2) The extent of the estate of the represented person is $553,978.77 according to the Public Trustee as disclosed in the accounts period 17 January 2007 to 16 January 2008. By the conclusion of this reporting period, the represented person's home had been sold and the net proceeds of sale comprise part of the aforementioned cash investments.
3) Since the sale of the represented person's home, her assets are such that the previously partial Centrelink pension has been cancelled as has her Health Care Card. The represented person continues to receive her late husband's superannuation benefit and a UK pension. Her total income more than meets the current expenditure of the represented person which was $35,032.60 for the year reported upon. The main expense noted in the accounts filed by the applicant with the Public Trustee is for accommodation expenses of $23,044.11.
The applicant informed the Tribunal that the represented person was required to pay income tax in the previous year of $3,500 because of the amount of funds that she now has invested following the sale of her home. The applicant told the Tribunal that in her view, it would be equitable for the gift to be allowed, which would in turn reduce her mother's income and hence less tax would be payable. The applicant said in her view, it was better for her family to receive the benefit than the money go to the government. No calculation was provided as to what
- would be the reduction in tax payable by the estate, had either the full requested gift or the alternative gift been allowed.
- The applicant stated that the represented person receives no benefit from the Australian government, now being a full fee paying resident without any Centrelink or health care benefits and she did not think it fair that her mother's estate should pay income tax when instead her family could receive a benefit.
4) The represented person is aged 93 years of age, and is according to the medical reports before the Tribunal diagnosed with dementia. She is, according to the applicant's submission, well cared for in the high care facility in which she lives and has no further needs.
5) The purpose of the gift proposed by the applicant is to pay half of the amount to her sister, YS. The applicant proposed to use her share of the gift on house repairs. She was hoping to have the funds to put insulation in the internal walls of her home. The applicant said this would make it more comfortable for when her mother visits her every week. The applicant had received a quotation for undertaking the repairs when she made application for the gifting previously, but had not received any updated information about costs since then. Her plan was to insulate three rooms of the house and the quote had been for $1,000 per room. The applicant said that the need for this to be done was because her mother feels the cold badly and if she was in the home, there would be a need for the lounge room to be constantly heated for her mother's comfort. The applicant said that when living in her own home, her mother had the heating on constantly throughout winter and that was something the applicant was unable to afford.
YS, in her written letter to the Tribunal, stated that she would use her share of the gift to help her pay for some of the repairs needed for her home.
The previous application made by the applicant for an additional gift of $10,000 had been refused partly on the
- basis that the applicant had provided little information as to how those funds would be spent. At that time, the applicant had said that her sister, YS, needed funds to replace the boiler in her home in Canada. She did not provide the Tribunal with any information whether the replacement was required as an updated model, or needed because the present one was faulty or what the costs associated would be. The request by her for her own share of the gift was similarly non-specific to the point that the Tribunal was unable to accede to the request partly as it was not clear as to how those funds would be spent, in addition to the evidence that the represented person would not have agreed to the request had she the capacity to make that decision.
- 6) In the previous written application made on 6 February 2007, the applicant told the Tribunal that she did not think that her mother would have gifted the then requested sum of $5,000 to each her sister and herself, as her mother would think that she didn't have enough money left in the bank. The applicant's oral evidence at this time was that her mother was very parsimonious by nature and had always scrimped and saved her funds, would not do any house repairs or replace things like curtains. Her mother did not understand that she had lots of money. Even when her mother was not demented, she would never spend her money. Her mother had worked for years into her seventies saving her money into her bank account. Her mother would not have agreed to give them the money because she would think it would not leave her enough to live on.
The applicant, however, said that when her sister, YS, was recently visiting from Canada, her mother was told that YS did not have enough money and her mother told the applicant to take some money out of the bank to give to her. The represented person did not say how much money should be given to YS.
YS has informed the Tribunal in writing that when visiting in January 2008, the represented person repeatedly told YS to ask the applicant to withdraw some money from her mother's bank account for YS.
- YS informed the Tribunal that she did not request any money from her mother or talk about money to her. YS informed the Tribunal that she tried to explain to her mother that the applicant is unable to take funds from her mother's bank account unless it is for her own benefit but the represented person did not really understand this. YS continued that since the death of her mother's husband in 1972, her mother has always been afraid that she would not have sufficient money to manage her affairs. YS added, my sister and I would not be requesting a gift of money if it affected my mother in any negative way.
- 7) The applicant states that the alternative open to her to undertake the house repairs if the gift is not allowed, would be to insulate one room of the house only. YS states that her alternative should the gift not be allowed, would be to take out a line of credit from the bank.
8) The applicant advises that there is no other person dependent on the represented person, that she and YS are the sole beneficiaries under the represented person's will.
21 Although the represented person has dementia and her current needs are met, the applicant, as her administrator, is bound to consider her needs in the longer term. It cannot be said with any certainty what the life expectancy of the represented person may be or whether she may have treatment or care needs in the future which will need to be met from her own funds.
22 Even if it were the case that such needs would not arise in the future and that the represented person has sufficient to meet all her needs for the remainder of her life, the application for authority to make the additional gift from her estate, must be refused.
23 The legislation provides for the proper management of estates of incapable persons during the lifetime of that person. It was not intended that it be a mechanism which would allow the distribution or partial distribution of the estate prior to her death. The proposal that the Tribunal, in effect, authorise the applicant and her sister to receive part of their inheritance prior to the represented person's will coming into effect, is not consistent with the primary obligation of the Tribunal set out in s 4 of the Act, to act in her best interests.
(Page 10)
24 While the applicant and her sister submit the represented person may have now agreed to such a gift to YS, they both agreed that while capable, she would not have agreed to such a gift as sought. The represented person has been found to be a person who is unable by reason of a mental disability of deciding these matters for herself. She has been found to need the appointment of an administrator and the protection of an administration order.
25 An administrator appointed under the Act is required, by s 70, to act in the best interests of the represented person. The relationship is a fiduciary one as it requires the administrator to act in the best interests of the represented person to protect the estate, and recognises the represented person is no longer capable of acting on her own behalf.
26 Although s 71(5) of the Act confirms that the best interests may be liberally interpreted by the Tribunal, the divestment of the represented person of either $17,179.59 or $10,000 from the value of her estate for the vague purpose as outlined by the applicant and her sister cannot be sustained. The discretion in s 71(5) must be exercised cautiously and consistently with the overall purpose of the Act.
27 As was foreshadowed at the hearing, the Tribunal will continue to authorise a gift from the represented person's estate a sum not exceeding $2,500 for gifts for birthdays and Christmas for her children, grandchildren and great grandchildren.
Orders
28 Upon statutory review of the administration order dated 12 April 2007, the order be confirmed as follows:
1. The applicant be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship & Administration Act 1990 (WA).
2. The administrator is authorised to expend up to a total amount of $2,500.00 per annum on gifts on behalf of the represented person.
3. This order is to be reviewed by 17 January 2012.
(Page 11)
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M JORDAN, SENIOR SESSIONAL MEMBER
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