JF
[2024] WASAT 5
•30 JANUARY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JF [2024] WASAT 5
MEMBER: MS R BUNNEY, MEMBER
HEARD: 6 OCTOBER 2023 AND 27 NOVEMBER 2023
DELIVERED : 29 JANUARY 2024
PUBLISHED : 30 JANUARY 2024
FILE NO/S: GAA 3434 of 2023
JF
Applicant
BF
Proposed Represented Person
EF
Third Party
Catchwords:
Application for guardianship and administration - Loan made by proposed represented person - Intellectual disability - Psychiatric illness - Proceedings in Family Court of Western Australia - Independent investigation - Best interests of represented person - Appointment of two limited administrators - Guardianship order not in best interests of proposed represented person
Legislation:
Family Court Rules 2021 (WA), Pt 13
Family Law Act 1975 (Cth), s 121
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(6), s 4(7), s 43(1)(b), s 44(1), s 51, s 64, s 68(1), s 68(1)(c), s 68(1)(d), s 68(3), s 68(3)(c)
State Administrative Tribunal Act 2004 (WA), s 32(2), s 62(1)(c), s 62(3)
Result:
Private limited administrator and Public Trustee appointed limited administrator
Guardianship application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Proposed Represented Person | : | In Person |
| Third Party | : | Barrister B |
Solicitors:
| Applicant | : | N/A |
| Proposed Represented Person | : | N/A |
| Third Party | : | Solicitor B |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
JF filed an application to the Tribunal seeking the appointment of a guardian and an administrator for his 29-year-old son BF, who has a genetic disorder which causes an intellectual disability and severe anxiety (Syndrome). In addition, BF developed a psychiatric illness in 2020 and has received diagnoses of schizophrenia, adjustment disorder, delusional disorder and obsessional thoughts.
JF's reason for seeking the administration order is that BF lent $200,000 (Loan) to his mother, EF, in December 2020 so that she could purchase her home (Property). BF's name is not on the title of the Property. JF became aware of the Loan as it was mentioned in documents that EF filed in the Family Court of Western Australia (Family Court) in February 2022. JF's view is that BF does not have the capacity to enter into the Loan, so JF has asked the Tribunal to appoint an administrator for BF.
JF's reason for seeking the guardianship order is because JF feels that his relationship with BF has deteriorated since the separation between JF and EF in 2019. JF also alleges that EF has deliberately structured BF's schedule so that JF is unable to spend time with him. JF has sought that a guardian be appointed to ensure that he can spend time with BF.
JF and EF are parties to financial proceedings in the Family Court so I have anonymised all identifying information in order to maintain the confidentiality of the Family Court proceedings.[1] For the same reason, I will also make an order pursuant to s 62(1)(c) and s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) prohibiting the publication of any information which would identify JF and EF.
[1] Family Law Act 1975 (Cth), s 121.
The matter was referred to the Public Advocate for investigation into, among other things, whether BF needs a guardian or an administrator, and if so, what their functions or powers should be, who should be appointed, BF's views and wishes, and any other matters the Public Advocate considers relevant.
JF filed the application on 1 August 2023 and the first hearing occurred on 6 October 2023 when I spoke directly with BF to obtain his views. The investigator from the Office of the Public Advocate (Investigator) and BF's carer, ST, were also present at this hearing. A further hearing occurred on 27 November 2023 and was attended by JF, who was selfrepresented, and EF, who was represented by counsel and her family law solicitor. JF's brothers and nephew also attended the hearing by telephone to give evidence. The Investigator and a representative from the Public Trustee also attended.
Background
JF and EF were married for 30 years and have two children, BF and their daughter, NF, who was born a few years later. EF has always been BF's primary carer.
BF has required two significant hospitalisations, in 2020 and 2021, since developing the psychiatric illness. BF requires ongoing medication and management in relation to this illness under the supervision of a psychiatrist.
While BF lives with these difficulties in relation to his mental health, he is described by those who meet him as lovely and friendly.[2] EF states that BF's sociable nature is his 'island of strength'.[3] Even when he was extremely unwell, he was described in hospital documentation as 'smiling, polite and pleasant'.[4]
[2] OPA Report, page 9.
[3] ts 9, 27 November 2023.
[4] Hospital B documents dated 1 to 17 March 2022, page 2 of discharge summary.
In addition to his engaging personality, the other comment most often made about BF was about his agreeableness and suggestibility. When I spoke to BF, I noticed that he would always agree with me, and answer most questions with 'yes', and would sometimes say 'yes' multiple times while a question is still being asked.
I therefore attempted to ask BF open questions to try to extract a more thoughtful, detailed answer without him trying to anticipate what I wanted to hear. The Investigator made a similar comment about being careful about the language used when asking BF questions.[5] ST discussed BF's agreeableness in detail at the first hearing, as did the other family members who gave evidence at the second hearing.
Background in relation to the management of BF's funds
[5] ts 37, 27 November 2023.
BF has been in receipt of a pension since his 16th birthday. EF saved his entire pension into a joint bank account in her and BF's names (Joint Account) as his living expenses were met from the joint funds of JF and EF during the marriage.[6]
[6] EF submissions filed 7 November 2023, page 1.
EF commenced Family Court proceedings in May 2020. On 17 August 2020, she was notified by the Bank that a 'third party' had provided a power of attorney document for BF (EPA) to the Bank.[7] Upon receiving this notification, EF transferred BF's funds, approximately $223,000, into an account in BF's sole name (Sole Account).[8] EF is a signatory on the Sole Account, as she has been on all of BF's accounts.
[7] Affidavit of EF sworn 16 September 2022 (Affidavit), page 25, paragraph 145.
[8] EF has provided extensive documentation to the Tribunal, including bank statements, to evidence the transfer of these funds.
JF's application to the Tribunal refers to the EPA. JF gave evidence that he had the EPA prepared in 2020 for the purpose of 'gathering information' about the Joint Account[9] as he had a 'suspicion' that the Joint Account had been closed and the funds had been transferred to another account.[10]
[9] ts 28, 27 November 2023.
[10] ts 34, 27 November 2023.
JF arranged for a Justice of the Peace he knew to witness BF's signature on the EPA.[11] When JF presented the EPA to the Bank, the Bank contacted EF because the Joint Account was in joint names.[12]
[11] ts 27, 27 November 2023.
[12] ts 27, 27 November 2023.
JF conceded that having BF sign the EPA was an error, but at the time, JF did not understand that BF was not able to sign an EPA due to his lack of capacity.[13] JF stated that with the benefit of hindsight, he should have arranged for his solicitor to ask EF's solicitor for the information about the Joint Account.[14] JF consented to the Tribunal making an order to revoke any enduring power of attorney that BF may have signed to appoint him as attorney.
Background in relation to the Loan
[13] ts 28, 27 November 2023.
[14] ts 18, 27 November 2023.
The parties' former matrimonial home, where BF, EF and NF were living, was sold in November 2020. Orders were made by the Family Court in October 2020 in advance of the settlement to allow EF to receive $800,000 from the proceeds of sale in order to purchase the Property.[15] As EF required a further $200,000 in order to complete the purchase, she discussed the Loan from BF with him in December 2020 and he agreed.[16]
[15] Affidavit, pages 16, 17 and 19. Form 13 Financial Statement filed 28 February 2022 by EF (Form 13), page 11.
[16] Affidavit, page 19.
The documents evidencing the Loan are as follows:
(a)the Form 13 financial statement sworn by EF on 28 February 2022 (Form 13) states that EF borrowed $200,000 from BF and that EF and BF agreed that she would repay him once she 'reached a property settlement' with JF.[17] The Loan is recorded in the liability section of the Form 13;[18] and
(b)the Trial affidavit sworn 16 September 2022 (Affidavit) states that EF borrowed $200,000 from BF to assist with the purchase of the Property.[19]
Background in relation to the time BF spends with JF
[17] Form 13, page 11.
[18] Form 13, page 7.
[19] Affidavit, page 19, paragraph 117.
JF says he has a strong relationship with BF[20] with very frequent communication.[21] They both made comments that the other would contact them constantly. SF, BF's cousin, gave evidence that when he was having lunch with JF a few months ago, JF received five phone calls from BF.[22] JF gave evidence that when BF was seriously unwell and hospitalised in 2020, BF asked a support worker at the hospital to assist him to call JF.[23]
[20] ts 20, 27 November 2023.
[21] ts 21, 27 November 2023.
[22] ts 37, 27 November 2023.
[23] ts 21, 27 November 2023.
On a usual week, BF's schedule is as follows:
(a)on Mondays, he is with ST from 11.00 am to 4.00 pm;
(b)on Tuesdays, he is at TAFE with a support worker from 9.00 am to 3.30 pm;
(c)on Wednesdays, he is with the Community Access Squad from 11.00 am to 4.00 pm and then ST will pick him up for a sleepover;
(d)on Thursdays, he is at TAFE with ST from 9.00 am to 3.30 pm;
(e)on Fridays, he is at TAFE from 9.00 am to 3.30 pm;
(f)on Saturdays, he is with ST and his friend John from 1.00 pm to 5.30 pm; and
(g)on Sundays, he is with a support worker from 1.00 pm to 5.00 pm and they will generally go to the airport and watch the aeroplanes.
EF says that if BF does not have an activity or outing planned for the day, he becomes restless.[24] EF says that the COVID-19 lockdowns in 2020 and the isolation that caused appears to have been the main trigger for BF's psychiatric illness, as he lost some of his support workers and his routine changed.[25] EF explained that before BF developed the psychiatric illness, he would play on his PlayStation and watch television, but now he cannot relax enough to actually sit still.[26]
[24] ts 8 and 9, 27 November 2023.
[25] OPA report, page 3
[26] ts 8, 27 November 2023.
JF says that over the last few weeks or months, he has made suggestions to BF about spending time together and BF has agreed,[27] but because of BF's disability, he needs somebody to set out a plan and make arrangements for him.[28]
[27] ts 22, 27 November 2023.
[28] ts 21 and 22, 27 November 2023.
Principles to be observed and legislation
The primary concern of the Tribunal in proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act) is the best interests of the proposed represented person, BF.[29] The Tribunal is required, as far as possible, to ask about his views and wishes.[30]
[29] GA Act, s 4(2).
[30] GA Act, s 4(7).
The starting point for the Tribunal is that BF is capable of looking after his own health and with safety, making reasonable judgments in respect of matters relating to his person, managing his own affairs and making reasonable judgments in respect of matters relating to his estate.[31] It is only when clear and cogent evidence is provided to the Tribunal that the presumption of capacity can be set aside.
[31] GA Act, s 4(3).
When deciding whether I can and should make such an order, I need to answer three questions. The first question is 'can I make a finding that BF lacks the capacity to make his own personal and financial decisions'?
If I can make that finding, the second question is 'is there in need for an order or is there a less restrictive way for decisions to be made in BF's best interests'?
If there is a need for an order, the third question (which has three parts relating to the specifics of the order) is:
(a)what functions or powers should the guardian or administrator have?;
(b)who should be the guardian or the administrator?; and
(c)how long should the order run for before it must be reviewed by the Tribunal?
Evidence and material before the Tribunal
I have had regard to and considered the following documents filed in the proceedings:
(a)the application filed by JF on 1 August 2023;
(b)submissions from JF filed 17 August 2023;
(c)discharge summaries and other documents from Hospital A in respect of admissions from 4 to 18 March 2020 and 12 January to 12 March 2021;
(d)discharge summary and other documents from Hospital B in respect of treatment provided to BF from 1 to 17 March 2022;
(e)a medical report prepared by general practitioner Dr S dated 4 August 2023 (GP Report);
(f)a medical report dated 11 September 2023 by psychiatrist Dr W which attaches letters dated 28 April 2023, 17 August 2022 and 10 June 2022;
(g)a service provider report dated 1 September 2023 prepared by representative from support provider (Service Provider Report);
(h)Form 13 Financial Statement sworn 28 February 2022 and Trial Affidavit sworn 16 September 2022 filed by EF in the Family Court proceedings;
(i)Submissions filed by the parties' daughter NF on 22 August and 29 September 2023;
(j)Submissions filed by ST on 24 August 2023;
(k)Submissions from family friend SP filed on 12 September 2023;
(l)Submissions from family friend CA filed on 29 September 2023;
(m)Bundles of BF's bank statements filed by EF;
(n)Submissions filed by EF dated on 29 September and 7 November 2023;
(o)BF's NDIS plan dated 20 January 2023; and
(p)a report dated 3 October 2023 from the Investigator from the Office of the Public Advocate (OPA Report).
I also had regard to the oral evidence and submissions given the course of the hearings by each of:
(a)BF;
(b)JF;
(c)EF and her counsel, Barrister B;
(d)ST;
(e)SF, BF's cousin;
(f)GF and CF, BF's uncles;
(g)the Investigator; and
(h)the representative from the Public Trustee.
The Tribunal asked EF to file copies of the documents filed in the Family Court that referred to the Loan, and requested information from the medical professionals, services providers and hospitals that had provided care to BF. The Tribunal did not ask for any further submissions or documents to be filed, and while the Tribunal is not bound by the rules of evidence,[32] I will place the evidentiary weight on those documents that they deserve.
[32] SAT Act, s 32(2).
I will first address the question of administration, and then guardianship.
Does BF lack the capacity to make financial decisions?
To appoint an administrator for BF, I must be satisfied that he is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.[33]
[33] GA Act, s 64.
This requires that I first consider whether BF has a mental disability. If so, I then need to be satisfied that the mental disability is the cause of BF's inability to make reasonable judgments about all or part of his estate.
Does BF have a mental disability?
The term 'mental disability' is defined in the GA Act and includes certain conditions such as an intellectual disability, a psychiatric condition, dementia, an acquired brain injury[34] and the definition is an inclusive one, rather than an exhaustive one.[35]
[34] GA Act, s 3.
[35] FY [2019] WASAT 118 (FY).
Having regard to the evidence adduced in the present case, I am satisfied on the balance of probabilities, and I find, that BF is a person who has a mental disability. The evidence clearly establishes that BF has a diagnosis of the Syndrome, which causes an intellectual disability and anxiety. No one at the hearing expressed a view that BF was able to manage his affairs. Dr S has stated that BF is incapable of making decisions in all areas of his life.[36] Dr S has also stated that BF does not have the capacity to sign an enduring power of attorney or an enduring power of guardianship.[37]
[36] Medical report prepared by general practitioner Dr S dated 4 August 2023 (GP Report), pages 3 – 5.
[37] GP Report, page 5.
In addition, I find that BF has another identifiable mental disability which is the psychiatric illness. The diagnosis of schizophrenia was originally made,[38] then in 2021, BF was further diagnosed with adjustment disorder with chronic delusional beliefs.[39] In 2022, BF was diagnosed with a delusional disorder.[40]
[38] Discharge summary from Hospital A for admission from 12 January to 12 March 2021 (Hospital A Summary).
[39] Hospital A Summary.
[40] Hospital B documents dated 1 to 17 March 2022.
BF's psychiatrist, Dr W, stated that BF's presentation may attract a variety of diagnoses and regardless of the diagnostic label, he will likely require treatment throughout his life.[41]
[41] Letter from Dr W to Dr S dated 10 June 2022.
EF gave evidence that BF's anxiety and psychiatric illness can be triggered by watching the news, beliefs that people are after him and he has also been highly distressed with thoughts that he might be jailed for domestic violence because of the injuries he has caused to EF when he clings to her while frightened.[42]
Is the mental disability the cause of the inability to make reasonable judgments in respect of his estate?
[42] ts 44, 27 November 2023.
In terms of simple financial matters, EF has always been required to manage and supervise BF's finances, including his significant savings. BF is able to decide what food or drinks he wants to buy, although he does need supervision to ensure he makes an informed choice.[43]
[43] Service Provider Report, page 2.
In terms of complex financial matters and specifically the Loan, I asked BF if he ever lent money to people, and he did not understand the question. I then asked him if he remembered lending money to EF to buy their home, and he said 'yes'. I then asked if she was going to pay him back, and he said 'I think so, yes'.
This response demonstrates that BF is not able to understand or ensure that the types of precaution necessary for clear setting of terms and conditions of the Loan are put in place for the mutual protection of both himself and EF. I am satisfied that this demonstrates that BF is unable to make reasonable judgments regarding his estate.
I am further satisfied that his inability to make decisions about his estate is caused by a mental disability, specifically the intellectual disability, which is static. While his ability to make decisions might be increasingly impaired when he is unwell with the psychiatric illness, which fluctuates, I find that is it is the intellectual disability that is the principal cause of BF's inability to make reasonable judgments in respect of all of his estate.
I will next explain why I am satisfied that BF is in need of an administrator of his estate.
Is there a need for orders or is there a less restrictive option?
Before making an order, the Tribunal must examine whether there is any another option available for decisions to be made in BF's best interests that is less restrictive on his freedom of decision and action.[44] An example of a less restrictive option is an enduring power of attorney, where the person concerned can choose who will make their financial decisions if they are unable to. BF does not have the capacity to enter into an enduring power of attorney.[45]
[44] GA Act, s 4(6).
[45] GP Report, page 5.
The other less restrictive option is where decisions are made informally, rather than by the formal authority provided by a document or an order, with the assistance of family or friends. BF has a life-long intellectual disability and has always had the informal support of his mother to manage his finances. The Tribunal needs to be satisfied that an administration order is now required.
EF intends to pay BF the interest that he would have earned had the $200,000 remained in the Sole Account.[46] Because BF is not able to negotiate or agree to the terms of the Loan, this means that the borrower has set terms where there is an evident conflict of interest.
[46] EF submissions filed 7 November 2023, page 3.
I note that the interest earned by BF in the savings account is likely to be much lower than the interest that EF would have had to pay had she obtained a mortgage for $200,000. That said, EF's sole source of income is a carer's pension as she has been BF's carer since he was born,[47] so it is possible that she would not have been able to obtain a mortgage in any event.
[47] Form 13, pages 2 and 3.
EF must have factored in the use of BF's funds when considering which property she was able to purchase, as BF's $200,000 makes up 20 per cent of the purchase price. EF has benefited from her ready access to BF's funds and was able to purchase a higher quality home without paying mortgage interest rates, by virtue of her trusted position as a joint signatory of the Sole Account.
JF asserts that because the Property has experienced a capital gain since 2020, if BF is only paid the interest he would have received had the $200,000 remained in the Sole Account, BF would receive no benefit from the capital gain, with EF receiving all the benefit.[48] EF estimated the capital gain to be $30,000 as at 16 September 2022.[49] Had BF become a registered owner of the Property to reflect his contribution of 20 per cent, he would be entitled to that share of the capital gain.
[48] ts 35, 27 November 2023.
[49] Affidavit, paragraph 96.
EF conceded that when she discussed the Loan with BF and he agreed, it is likely that his agreement was based on the fact that he will agree with most things that people say to him.[50] She confirmed that her intention was not to cause BF any loss.[51] I note that her proposal for the payment of interest will leave BF in the same position he would have been had the Loan not been made, but does not reflect the benefit that she has received from BF's contribution to the purchase of her home.
[50] ts 31, 27 November 2023.
[51] ts 32, 27 November 2023.
I am satisfied, and I find, that there is a need for an administrator because BF requires someone with legal authority to be able to negotiate the terms of the Loan in his best interests, finalise the documentation, sign the documents on his behalf and ensure that the Loan is repaid in accordance with the agreement reached.
What should the orders be?
Functions and powers - plenary or limited?
Administration orders can be limited or plenary, depending on the needs of the person, but shall be in terms that impose the least restrictions possible on the person concerned.[52]
[52] GA Act, s 4(6).
The role described above is a specific function relating to the Loan, so BF's administrator can be appointed for this limited purpose (First Limited Administrator). However, when a limited administrator is appointed for a specific purpose, it can create a vacuum, or some uncertainty, about who has the authority to manage the rest of the estate, such as BF's income, payment of expenses and investing his savings.
My view is that it is in BF's best interests to have a second limited administrator appointed to perform the role that has been fulfilled by EF in managing his estate (Second Limited Administrator). It would not be in his best interests if he was left without assistance with his daytoday finances due to any uncertainty caused by the existence of the limited administration order. I therefore find that there is a need for a second limited administrator to be appointed in BF's best interests, with all of the powers of a plenary administrator save for the functions conferred on the First Limited Administrator.
Who should be appointed as the First Limited Administrator?
Anyone proposing themselves as administrator must be over the age of 18 and have consented to act.[53]
[53] GA Act, s 44(1) and s 68(1).
The Tribunal must hold the opinion that any proposed administrator will act in the best interests of BF[54] and is suitable to act as the administrator of his estate.[55] When assessing suitability, the Tribunal must take into account the compatibility between the administrator and guardian (if any), the wishes of the person concerned and whether the proposed administrator will be able to perform the functions vested in them.[56]
[54] GA Act, s 68(1)(c).
[55] GA Act, s 68(1)(d).
[56] GA Act, s 68(3).
I did not ask BF who he would want to look after his finances due to his agreeableness and suggestibility. BF knew that EF helped him with his money, and I anticipated that whatever question I asked, BF would endeavour to tell me what he thought I wanted to hear. However, in terms of wishes, it was clear when I spoke to him that BF likes to be in charge of making his own decisions as much as he can.[57]
[57] ts 48, 27 November 2023.
Both JF and EF have proposed themselves to be BF's administrator. EF cannot be appointed as the First Limited Administrator as there is a conflict of interest due to her being the borrower. In relation to JF, due to the observable conflict between JF and EF and the ongoing Family Court proceedings, it would not be appropriate for JF to act as the First Limited Administrator to negotiate with EF on behalf of BF. It is likely that the animosity between JF and EF would affect JF's ability to negotiate objectively and in BF's best interests.
BF therefore requires someone independent to negotiate and record the formal terms of the Loan. The only independent appointment open to the Tribunal is the Public Trustee, so I will appoint the Public Trustee as BF's limited administrator to document the Loan and start legal proceedings if required, receive the funds when the loan is repaid, and to seek a review of the limited administration order once the funds are repaid.
BF will incur legal fees payable to the Public Trustee in relation to the documentation of the Loan.[58] However, had the Loan been properly documented in the first place, legal fees would have been incurred. I will include a further order to confirm that the Public Trustee is entitled to reimbursement of all reasonable expenses including legal fees and disbursements in performance of his functions. Payment of the legal fees of the Public Trustee will need to be arranged by the Second Limited Administrator.
Who should be appointed as the Second Limited Administrator?
JF's suitability
[58] Public Trustee Scale of Fees, Western Australian Government Gazette, No. 77 (16 June 2023).
As set out above, the Tribunal must hold the opinion that any proposed administrator will act in the best interests of BF[59] and is suitable to act as the administrator of his estate.[60] When assessing suitability, the Tribunal must take into account the compatibility between the administrator and guardian (if any), the wishes of the person concerned and whether the proposed administrator will be able to perform the functions vested in them.[61]
[59] GA Act, s 68(1)(c).
[60] GA Act, s 68(1)(d).
[61] GA Act, s 68(3).
JF nominated himself to be BF's administrator and he was not supportive of EF being the administrator. I raised with JF the two concerns I had about him acting as BF's administrator. The first is the questionable judgment JF exercised when arranging for BF to sign the EPA in 2020 discussed above. The second is around the registration of JF's car in BF's name.
Around two years ago, ST assisted BF to obtain a 'proof of age' card and they were told that there was a car registered in BF's name. JF confirmed that his vehicle was, and continues to be, registered in BF's name.[62] JF could not remember the reason why it was registered in BF's name, but he thought that it may have been to obtain a reduced registration rate.[63] JF could not remember whether BF signed the registration documents himself,[64] and he said he did not see a problem with BF being the owner of the vehicle.[65]
[62] ts 13, 27 November 2023.
[63] ts 13, 27 November 2023.
[64] ts 13, 27 November 2023.
[65] ts 29, 27 November 2023.
I raised my concern about the liability that flows to BF as owner of the vehicle,[66] and that BF is subject to a legal arrangement that he cannot consent to.[67] The purpose of registration appears to benefit JF by obtaining a reduced registration rate, and does not benefit BF in any way.
[66] ts 28, 27 November 2023.
[67] ts 29, 27 November 2023.
Due to these two concerns, I am not satisfied that JF will act in BF's best interests as Second Limited Administrator as required by the GA Act.[68] The evidence shows that JF has preferred his own interests to BF's, specifically in relation to the registration of JF's vehicle, and has not considered the legal consequences for BF, such as being legally accountable for any offences or infringements relating to the vehicle. JF did offer to cancel the registration,[69] however, but for the Tribunal proceedings, I am concerned that this arrangement would have continued with JF unable to recognise the detriment that could be caused to BF.
[68] GA Act, s 68(1)(c).
[69] ts 28, 27 November 2023.
I am also not satisfied that JF is suitable to act as administrator of BF's estate.[70] If JF wanted to gather 'information' about the Joint Account,[71] his solicitor could have asked for any information about the Joint Account and EF would have been compelled to provide it in accordance with the disclosure obligations set out in the Family Court Rules.[72] Arranging for BF to sign the EPA shows a grave error of judgment on JF's part as an enduring power of attorney is a document that bestows immense power on the attorney. If it was accepted by the Bank, it could have allowed JF to transfer or withdraw BF's significant savings, in addition to obtaining information.
[70] GA Act, s 68(3).
[71] ts 28, 27 November 2023.
[72] Family Court Rules 2021 (WA), Pt 13.
I therefore find that JF is not suitable to act as BF's Second Limited Administrator.
EF's suitability
There is no evidence in any of the documents provided to the Tribunal, and no one gave oral evidence at the hearing, that raised any concern about EF financially exploiting BF in any way. The Investigator's view, which I share, is that EF has been acting in BF's best interests in relation to the management of BF's income and the savings he has accrued.[73] It appears that her only error was not ensuring that appropriate legal steps were taken prior to entering into the Loan with BF, which would have likely involved an application to the Tribunal for a limited administration order.
[73] ts 41, 27 November 2023.
JF does not support EF being appointed as administrator[74] and his preference is for an independent administrator to be appointed.[75] JF presented three reasons for this.
[74] ts 35, 27 November 2023.
[75] ts 35, 27 November 2023.
The first was a concern about BF being prevented from accessing his funds if JF wanted to take BF interstate or overseas. JF stated that the appointment of an independent administrator 'would force [EF] and I to agree on how things are done'.[76] This relates to JF's application for guardianship and, I expect, that in the event that an independent guardian directed that BF was to travel with JF, JF is concerned that EF would not provide the required funds if she was the administrator. If the Public Trustee was the administrator, JF anticipates that BF's funds would be provided in order to comply with the decision of the guardian.
[76] ts 36, 27 November 2023.
The second reason appears to relate to EF charging BF board of $200 per week, when prior to separation, when the family was living in the family home, BF did not have to pay any living expenses.[77] However, it is completely reasonable, and not exploitative, for an adult child living with family to pay board. BF is making an appropriate contribution to the household expenses, and around 30 per cent of his pension is still being saved.
[77] ts 34, 27 November 2023.
The third reason relates to JF being aggrieved that EF saved BF's pension 'behind [his] back' during the marriage.[78] JF's view is that EF has saved BF's funds 'for her own benefit, because at the end of the day she gets a capital gain'[79] as BF's funds were utilised by EF to purchase the Property. JF agreed that it was in BF's best interests to have saved these funds.[80]
[78] ts 34, 27 November 2023.
[79] ts 34 and 35, 27 November 2023.
[80] ts 34, 27 November 2023.
The genesis of JF's three complaints appears to be the ongoing conflict between JF and EF and the issue of JF spending time with BF, rather than any legitimate concern about BF's best interests, save for JF's concern that BF will not benefit financially from the capital gain in respect of the Property.[81]
[81] ts 35, 27 November 2023.
JF would prefer that the Public Trustee be appointed as the Second Limited Administrator rather than EF, but this will incur ongoing fees. Due to the quantum of BF's estate, if the Public Trustee was appointed as Second Limited Administrator (which would result in a plenary administration order), BF would be likely to incur fees of around $4,200 per year in terms of the personal finance administration fee and asset management fee.[82] This is clearly not in BF's best interests and should be avoided if possible.
[82] Public Trustee Scale of Fees, Western Australian Government Gazette, No. 77 (16 June 2023).
In terms of the functions of the administrator, I discussed with the parties the supervisory role the Public Trustee has over all private administrators, and the annual reports that need to be filed by the administrator.[83] I stated that if EF was appointed as the Second Limited Administrator, on the basis that she has always managed BF's finances, the oversight of the Public Trustee may give JF some certainty in terms of ongoing supervision by the State of the management of BF's finances,[84] with minimal costs to BF.
[83] ts 33, 27 November 2023. Public Trustee Private Administrator's Guide, pages 11-12, 33-35 and 50-59 ( ts 33, 27 November 2023.
I am satisfied that EF will be able to perform the functions vested in the administrator particularly in respect of the reporting requirements to the Public Trustee.[85] EF is a litigant in financial proceedings in the Family Court, so the instructions that she would provide to her solicitors and the types of forms she would have been required to prepare involve similar skills as are required for the reporting to the Public Trustee. I was also impressed with the level of detail and documents that EF provided to the Tribunal, so I am satisfied that she has kept good records, and will continue to do so, in relation to BF's finances.
[85] GA Act s 68(3)(c).
I therefore find that EF will act in BF's best interests, and that she is suitable to act as BF's Second Limited Administrator. I will appoint EF as BF's Second Limited Administrator to manage all aspects of his estate, save for the function granted to the Public Trustee.
How long should the order run for before it must be reviewed?
When making orders, the Tribunal is required to fix a period for the review of the order. The longest period of time that orders can be in place before a review is required is five years, although they can be made for a shorter period of time if the Tribunal considers that appropriate and in the represented person's best interests.
In this case, given the evidence that BF has a static disability which means there is an ongoing need for an administration order, I consider that it is appropriate to set the review period for five years, noting that there is a direction to the First Limited Administrator to seek a review of the order when the Loan has been repaid.
Does BF lack the capacity to make personal decisions?
I can appoint a guardian for BF if one or more the following criteria apply:
(a)he is incapable of looking after his own health and safety;
(b)he is unable to make reasonable judgments in respect of matters relating to his person; or
(c)he is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.[86]
[86] GA Act, s 43(1)(b).
On the basis of the views of the professionals as set out in the filed documents and the parties that gave evidence at the hearing, there is ample evidence that persuades me that BF is someone for whom I can appoint a guardian. No one at the hearing expressed a view that BF was able to look after his own health and safety.
BF has always been reliant on his parents to make decisions and arrangements in relation to his medical care, accommodation and arranging access to services. EF initially managed BF's supports through the Disability Services Commission and then the National Disability Insurance Scheme (NDIS),[87] currently with the assistance of a support coordinator.[88]
[87] ts 16, 27 November 2023.
[88] ts 16, 27 November 2023.
BF is in need of supervision and oversight in order to protect his health and safety, particularly around managing his medical issues, treatment for his psychiatric illness, and as BF explained to me, buying too much chocolate and then feeling sick.
JF's application for guardianship
The crux of JF's application is whether or not there is a need for a guardian to be appointed to decide what contact BF would have with JF. However, JF also raised the topics of BF's accommodation and medical treatment.
JF raised BF's desire to live in a group home.[89] BF told the Investigator that at some point he would like to live independently, but at the moment, he was enjoying living with EF because they like to do a lot of travel together.[90]
[89] ts 23, 27 November 2023.
[90] ts 39, 27 November 2023.
JF also complained about his inability to access BF's medical information, be involved in medical decisions[91] and meet with BF's doctors.[92] JF has attempted to make contact with BF's doctors, but they would not speak to him due to confidentiality.[93] JF did not question or raise a concern about any specific medical decisions made by EF, and the complaint was limited to his role, or lack thereof, in BF's medical care.
[91] ts 24, 27 November 2023.
[92] ts 49 and 50, 27 November 2023.
[93] ts 24, 27 November 2023.
I noted that the appointment of a medical treatment guardian would not provide the access to information that JF was seeking, or an invitation to attend medical appointments. The medical treatment guardian is required to act in BF's best interests, which would include considerations of what personal medical information would be disseminated to other people.[94] It is likely that EF, as BF's primary carer, would still make and attend medical appointments with BF, as the role of the medical treatment guardian is to give informed consent to medical treatment and procedures, like vaccinations or surgery, as and when required.[95]
[94] GA Act, s 51.
[95] ts 50, 27 November 2023.
In terms of the application for contact with BF, the Investigator's understanding, from speaking with all parties involved, was that the current issue arose because JF sought to change the days that he would see BF. Because BF did not agree to these changes, the application was filed with the Tribunal.[96]
[96] OPA report, pages 5 and 8.
During the hearing, EF stated that BF is able to spend as much time as he wants with JF and she has never stopped him.[97] The evidence shows that BF and JF have the ability to contact each other at will and can arrange to spend time together.
[97] ts 42, 27 November 2023.
Previously, BF was spending two nights per week with JF, which EF welcomed as it provided respite for her, particularly when BF was going through a difficult time with the psychiatric illness.[98] EF's preference and hope is that BF will start spending overnight time with JF again.[99] BF enjoys staying somewhere overnight, like he does every Wednesday at ST's home.[100]
[98] ts 42, 27 November 2023.
[99] ts 42 and 55, 27 November 2023.
[100] ts 55, 27 November 2023.
When BF was spending two nights per week with JF, one of those nights was a Saturday, and BF spent Saturday afternoons with a carer and his friend John. John has the same Syndrome and BF has known him since he was two.
An issue arose because when EF would tell BF that the carer would deliver him to JF's home after his time with John, BF would become upset and angry with her.[101] BF's distress around this would impact on the afternoon spent with John, and EF said that BF was getting angrier with EF, to the point where it was starting to affect their relationship.[102] So the two nights were reduced to one night and then eventually BF refused to spend time with JF.
[101] ts 42, 27 November 2023.
[102] ts 42, 27 November 2023.
The documents also mention that JF would promise to spend time with BF, such as for the Royal Show, which would not eventuate. The OPA Report states that 'conflicting information has been provided which indicates that JF can be inconsistent and unpredictable in adhering to arrangements made'.[103] JF denied this.[104]
[103] OPA report, page 9.
[104] ts 48, 27 November 2023.
EF stated that BF knows his own mind and he can be very forceful especially if he does not want to do something.[105] While he does not have capacity to make certain decisions, she says that he is able to make decisions about who he will spend time with and what he wants to do.[106] Building his independence is a specific focus of his NDIS plan and the work that he is doing with ST.
[105] ts 55, 27 November 2023.
[106] ts 55, 27 November 2023.
JF told me that he was happy to fit in with BF's other commitments.[107] JF is retired, having previously worked overseas,[108] so he can be flexible with his time.[109] JF stated that he would like to have set time with BF where, for example, they could spend time during the day and then stay overnight.[110] JF said that he had discussed it with BF, who said that he was happy to stay overnight.[111] JF would like to take BF to Melbourne and Sydney to visit family, and his view was that EF would not allow BF to travel overseas or interstate with JF.[112] JF says that because EF will not communicate with him, an independent third-party is required to arrange for BF to spend time with JF.[113] JF's brothers and nephew agree with him.[114] Because of BF's disability, he needs someone to make the necessary arrangements, and that has always been EF.
[107] ts 22, 27 November 2023.
[108] OPA report, pages 4 and 5.
[109] ts 20 and 21, 27 November 2023.
[110] ts 49, 27 November 2023.
[111] ts 49, 27 November 2023.
[112] ts 36, 27 November 2023.
[113] ts 22, 27 November 2023.
[114] ts 36 – 38, 27 November 2023.
During the hearing, EF stated that JF is welcome to spend time with BF on Saturday and Sunday mornings, as the support workers usually collect him at 1.00 pm.[115] EF also suggested that she could move the carers back an hour so JF could have more time with BF on these days.[116]
[115] ts 54, 27 November 2023.
[116] ts 57, 27 November 2023.
As BF will not currently spend overnight time with JF, EF suggested that spending regular time on Saturday and Sunday mornings might be a way to build up the time to a point where perhaps BF will want to start spending overnight time with BF again.[117] In response to EF's offer, JF stated:[118]
I'm currently living a long way away, and I'm not able to answer that question at this moment. I will have to consult with my wife. And I also would like to have an overnight stay. [EF is] saying that [BF] wouldn't stay overnight. That is totally the opposite to what - I've been speaking with [BF] recently, and he is very happy to come and stay with me.
[117] ts 54, 27 November 2023.
[118] ts 56, 27 November 2023.
The hearing continued as follows:[119]
[119] ts 56 – 57, 27 November 2023.
JF: But why couldn't he stay overnight? I mean, he's with carers the whole time. [EF] says she needs respite, and yet she's happy to - she's happy to send him off with a paid carer to stay overnight.
MEMBER: Let's just focus on the fact you said you want more time with him - - -
JF: Yes.
MEMBER: - - - and you want regular time with him.
JF: Yes. Yes.
MEMBER: So there's regular time on offer on Saturday and Sunday, and it sounds to me like once everyone can say, 'The hearing is over, [BF]. It's all done. Do you want to come around?', you know, build - - -
JF: It really should be for a day. It should be for a day, and if we can make it Sunday, that is fine.
EF: Well, how about two days? You could do Saturday - - -
JF: I'm fine with two days.
EF: - - - Saturday and Sunday morning.
JF: And he stays overnight.
EF: He won't stay overnight, [JF].
JF: No, well, that's what you say, but I'm quite convinced that he would.
JF was openly hostile to EF during the hearing, and made an offensive gesture and comment to her solicitor. I was required to reprimand him for his behaviour, for which he apologised. I was also required to direct the discussion back to BF's best interests on multiple occasions when it strayed into the conflict between JF and EF. It was clear to me that JF's animosity towards EF causes him to not accept her views in relation to BF, and be unable to control his emotions in stressful situations.
BF's independence
ST has known BF for four years and she supports him four days and one sleepover each week. ST states that the sleepovers allow him to be 'an adult with his friends' and they will prepare a meal, clean up afterwards and socialise with ST's other housemates. The intention is that he has more responsibility as a young adult and is able to interact with people his own age in a safe environment.
ST states that since she has known BF, although he is still a people pleaser, he has become far more assertive, is more likely to question authority and will 'push back'.
The Investigator asked BF how he would feel if he had someone to help him make decisions around spending time with JF.[120] BF initially said that it might be good, but then he changed his mind and said that he wanted to be the one to decide whether he spent time with JF or not.[121]
BF's mental state
[120] ts 39, 27 November 2023.
[121] ts 39, 27 November 2023.
The Investigator was concerned that if BF was compelled to spend time with people he did not want to, that could impact his mental health[122] as when BF experiences stress or overwhelm, his mental health deteriorates.[123] EF explained that anxiety is part of the Syndrome and has worsened with BF's age.[124] While EF can medicate him when his anxiety increases to the point of him being terrified, the medication takes 20 minutes to work.[125] In these times, he will look for EF and cling to her, which causes her physical injuries.[126] I observed bruises on EF's arms in the hearing, and it was noted that the presence of the injuries can then cause BF's anxiety and paranoia to further spiral.[127]
[122] ts 40, 27 November 2023.
[123] OPA report, pages 2 – 3.
[124] ts 44, 27 November 2023.
[125] ts 43, 27 November 2023.
[126] OPA report, page 3. Discharge summary from Hospital A for admission from 12 January to 12 March 2021.
[127] ts 44, 27 November 2023.
The Investigator's view is that appointing a guardian could negatively affect BF's mental health.[128] While BF cannot be compelled by a guardian to spend time with people that he does not want to, because of his suggestive and agreeable nature, if he does agree to do something that he does not want to, it could have a significant impact on him.[129] In addition, because of the amount of time, energy and support that has gone into building his independence, taking away his ability to make those decisions, when he is almost 30 years old, would be unjust in the Investigator's view.[130]
Conclusion and findings - is there a need for a guardianship order or is there a less restrictive option?
[128] ts 41, 27 November 2023.
[129] ts 41, 27 November 2023.
[130] ts 41, 27 November 2023.
The primary concern of the Tribunal is the best interests of BF. When considering whether there is a need to appoint a guardian to make decisions in BF's best interests, I have carefully considered the following matters due to the highly complex interaction of BF's inherent vulnerabilities, his psychiatric illness and the acrimonious relationship between his parents.
JF has open communication with BF. They are in constant contact and make plans to spend time together, like they did a few days before the hearing at a dance presentation. EF has made a reasonable suggestion for JF to spend regular time with BF on Saturday and Sunday mornings until 2.00 pm, but it appears that JF may be choosing not to spend that time with BF because it is not the exact time that he wants, which is a full day or two days with overnight time.
This contradicts JF's comment to me that he is flexible with his time and will fit in with BF's schedule. It appears to me that JF may be more focussed on what is convenient for him, rather on what will work best for BF and their relationship.
BF will soon be 30 years old, and JF does not appear to be approaching the matter as an opportunity to build a meaningful relationship with his son based on BF's genuine desire to spend time with his father. JF has instead sought the appointment of an independent guardian to require BF to spend time with him. JF's evidence is that he can, and as recently as a few days before the hearing, arrange to spend time with BF.
As noted by the Investigator, BF has a significant amount of scaffolding in his life to create and encourage his independence, selfdetermination and autonomy[131] which could be undermined by the appointment of a guardian.[132] JF's action in making arrangements directly with BF supports his developing independence, so this method of building time and the relationship with BF, at a pace BF is comfortable with, is likely to have the outcome that JF is seeking.
[131] ts 40, 27 November 2023.
[132] OPA report, page 8.
I am concerned about the lack of insight shown by JF in terms of his understanding of, or reflection upon, BF's agreeable nature. JF stated multiple times during the hearing that he had spoken to BF about spending time with him, including overnight time, and BF agreed. JF seemed to take that agreement as absolute, without recognising the nuance that is involved in asking BF questions about sensitive matters in order to avoid pressuring or misunderstanding him, which was clear to me within minutes of meeting BF.
The consequences for BF's mental health could be dire if he becomes stressed or overwhelmed with decisions being made for him about who he will spend time with. BF earnestly believes that he makes all of the decisions about his schedule himself, with EF making the arrangements in the background. EF gave evidence that she has never stopped BF from spending time with JF and she is hopeful that overnight time will restart. I accept her evidence as truthful, as while she is supporting BF's relationship with JF, it is understandable that she would like further respite from her significant caring duties.
With reference to all of the evidence adduced in this case, I find that there is no need for a guardian for two reasons. The first is that there is no need for a guardian to be appointed to arrange contact between JF and BF as they are able to do that themselves. While it may take time to build up to an amount of time that JF is seeking, the amount and frequency of time, and the activities they undertake together, has to be on BF's terms to support his independence and protect his mental health.
The second reason is because the less restrictive option of supported decision-making and informal assistance from EF is working in BF's best interests to ensure that he is involved in making the decisions that affect him in respect of who he spends time with, medical treatment, accommodation and the services to which he should have access. To appoint a guardian could have a profound, negative impact upon him.
I am satisfied that EF has capable oversight of BF's personal matters and I find that she acts as far as possible:
(a)as an advocate for BF, which was evident during the hearing;
(b)in such a way as to encourage BF 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 BF to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person. This is clear through the independence building EF has arranged through the NDIS supports, and specifically, ST;
(d)in such a way as to protect him from neglect, abuse or exploitation;
(e)in consultation with BF, taking his wishes into account as far as possible;
(f)in the manner that is least restrictive of BF's rights, while consistent with his proper protection;
(g)in such a way as to maintain any supportive relationships that BF has; and
(h)in such a way as to maintain BF's familiar cultural, linguistic and religious environment.
Paragraphs (a) to (h) above are the sub-paragraphs of s 51 of the GA Act, which are the legislative requirements of how a guardian is to act in the best interests of the person concerned. EF is fulfilling this role, and BF is benefitting from it, without requiring a formal appointment.
I will therefore dismiss the application in so far as it relates to guardianship.
Orders
The Tribunal declares that the represented person, [BF], 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.
The Tribunal orders:
1.Pursuant to s 62(1)(c) and s 62(3) of the State Administrative Tribunal Act 2004 (WA) the Applicant's and Third Party's names, and any information that might enable them to be identified, is not to be published.
Administration
2.[EF] of [address suppressed] is appointed limited administrator of the represented person's estate with all the powers of a plenary administrator except for the powers set out in paragraph 4 below.
3.[EF] is authorised as limited administrator to expend up to a total of $1,000 per annum on gifts on behalf of the represented person.
4.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator of the represented person's estate with the following functions:
(a)to investigate and document the represented persons loan to [EF] of $200,000 (Loan), to seek legal advice and to bring and defend actions, suits and other legal proceedings in the name of the represented person in relation to the Loan and related matters and, if appropriate, to settle those matters;
(b)to receive funds paid in respect of the repayment of the Loan or pursuant to any legal proceedings in respect of same (Claim); and
(c)to seek a review of this order upon the receipt of all funds paid in respect of the repayment of the Loan or Claim, and/or upon the finalisation of any Claim.
5.The Public Trustee is entitled to reimbursement of all reasonable expenses including legal fees and disbursements in performance of his functions.
6.The Public Trustee is to be provided with copies of all documents filed in the matter GAA/3434/2023.
7By consent, any enduring power of attorney document made by the represented person which appointed [JF] to be his attorney is revoked.
8.The administration order is to be reviewed by 29 January 2029.
Guardianship
9.The application in so far as it relates to guardianship is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
30 JANUARY 2024
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