JH
[2021] WASAT 23
•19 FEBRUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JH [2021] WASAT 23
MEMBER: DR E MARILLIER, MEMBER
HEARD: 22 MAY 2020, 17 AUGUST 2020 AND 26 OCTOBER 2020
DELIVERED : 19 FEBRUARY 2021
FILE NO/S: GAA 1085 of 2020
JH
Represented Person
RH
Applicant
Catchwords:
Guardianship - Administration - Capacity for reasonable judgment - Least restrictive alternative - Corporate Trustee - Suitability as guardian - Suitability as administrator - Best interests - Views and wishes of the represented person
Legislation:
Corporations Regulations 2001 (Cth), Sch 8AA
Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(1)(b), s 43(1)(c), s 44, s 51, s 51(d), s 51(f), s 64(1)(a), s 64(1)(b), s 68, s 70, s 70(2), s 70(2)(c), s 70(2)(e), s 70(2)(f)
Trustees Act 1962 (WA), s 89, s 92
Result:
Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| Applicant | : | Mr R Graham |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | Vogt Graham Lawyers |
Case(s) referred to in decision(s):
LS [2018] WASAT 64
Perpetual Trustee Company LTD v Cheyne [2011] WASC 225
PMB and LJB [2015] WASAT 96
Re Hoang Minh Le; Ex Parte The Public Trustee [2012] WASC 31
RK [2021] WASAT 13
:
Introduction
In this application for the appointment of a guardian and administrator under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) for JH, a man with cerebral palsy, three major issues arose:
•Did the proposed represented person have a mental disability leading him to be incapable of making reasonable decisions in respect of matters relating to his person and/or his estate, or solely a movement disorder which impacted communication along with other body movements?
•Was the applicant suitable for appointment as guardian and/or administrator for JH?
•Is it open to the Tribunal to appoint Perpetual Trustees WA Ltd (Perpetual Trustees) as administrator, if that is the wish of the proposed represented person, and the company is willing to be appointed, in the absence of written consent from an individual who would otherwise be appointed as administrator?
Factual background
JH is a man in his 40s who suffered a hypoxic brain injury at birth, resulting in cerebral palsy. He is non-verbal, communicating by eyegaze to indicate binary choices, and by movement and vocalisations which are affected by his disability. He mobilises by wheelchair (propelled by others) and requires assistance with all activities of daily living. He currently resides in a group home.
JH enjoys a warm relationship with his mother RH, his cousin JK and support workers from both his accommodation and community engagement providers. He likes company and visiting shops and the theatre, going out a few times a week with his mother, and three days a week with support workers. To date, JH has refused to utilise computerassisted communication devices, but is able to indicate clearly to those he knows well his choices and preferences in regard to what he would like to wear, purchase or do.
JH lived with RH until he was 30, when he moved to a group home with his current accommodation provider. RH was appointed limited administrator for JH by the Guardianship and Administration Board in 1996 to permit her to conduct a compensation claim on his behalf, which ultimately led to JH having funds managed for him by Perpetual Trustees through a District Court order in 2006. The administration order also authorised RH to operate JH's bank accounts.
On review in 2002, RH was appointed plenary administrator, to allow her to additionally manage funds JH had received as an inheritance, which included a part-share in an apartment. Plenary functions were confirmed in 2007 with the addition of a modest gifting allowance. On review in 2012, the orders were revoked on the basis that there was no longer a need for them, as the compensation claim had been concluded, and care of financial matters could be managed informally as had been the case prior to the commencement of the claim.
RH has now applied to be appointed as the guardian and administrator for JH. RH stated in her application that JH was intelligent and understands conversation, but that the appointment of a guardian and administrator was necessary as JH was now a client of the National Disability Insurance Scheme (NDIS).
When the application was first listed for hearing, there was conflicting evidence regarding JH's capacity to make reasonable judgments in his own best interests. The medical reports were unclear as to whether JH's cerebral palsy only affected his ability to move and speak, or whether it also included a cognitive impairment. The hearing was therefore adjourned to allow for formal neuropsychological testing of capacity.
The evidence and submissions received by the Tribunal at the first hearing indicated that JH's support workers had reservations about the appointment of RH as the guardian and administrator for JH. Those reservations arose from their concerns that RH did not allow JH as much freedom of decision and action as might be reasonable, and concerns as to whether RH made decisions in JH's best interests. An investigation and written report by the Public Advocate was requested by the Tribunal.
Evidence received by the Tribunal at the second hearing clarified the position in respect of JH's capacity and the need for a guardian and an administrator. However, the question of who should be appointed, the importance of JH's views and wishes in regard to his or her suitability (given JH's consistently expressed desire for independent appointees), and issues of the scope and term of the appointments required a third hearing so that the Tribunal could receive submissions and further evidence. Further written submissions were invited at a directions hearing on 24 December 2020 regarding the interpretation of s 68(2) of the GA Act in JH's particular circumstances, and the position of the Public Trustee in relation to consenting to appointment.
For the reasons set out below, the Tribunal appointed the Public Advocate as limited guardian and the Public Trustee as plenary administrator for JH, taking into account his wish for independent appointees.
Principles governing proceedings under the GA Act
Before turning to the details of JH's case, it is appropriate to recall that in dealing with proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4 of that Act.
The primary concern of the Tribunal is the best interests of any represented person. [1]
[1] GA Act s 4(2).
In addition, every person is presumed to be capable of, amongst other things, looking after his or her own health and safety, making reasonable judgments in respect of matters relating to his or her person, managing his or her own affairs and making reasonable judgments in respect of matters relating to his or her estate, until the contrary is proved to the satisfaction of the Tribunal.[2]
[2] GA Act s 4(3).
In considering any matter relating to a represented person, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[3]
[3] GA Act s 4(7).
Furthermore, an administration or guardianship order should not be made if the needs of the proposed represented person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action.[4]
[4] GA Act s 4(4).
In addition, any order appointing an administrator or guardian should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible, in the circumstances, on the represented person's freedom of decision and action.[5]
[5] GA Act s 4(6).
If the Tribunal is satisfied that the presumption of capacity is rebutted, and that there is a need for orders appointing a guardian[6] and/or an administrator[7], it must then determine:
1)whether any order should be plenary or limited, what functions should be conferred, and whether any directions or conditions should be placed on the order(s);
2)who should be appointed as guardian[8] and/or administrator;[9] and
3)when the order(s) should be reviewed by the Tribunal.[10]
JH's capacity to make reasonable decisions in relation to his personal affairs and estate
[6] GA Act s 43.
[7] GA Act s 64.
[8] GA Act s 44(1-5).
[9] GA Act s 68(1-5).
[10] GA Act s 84.
In her application, RH indicated her belief that JH is intelligent and understands conversation. At the first hearing, RH, JK and support worker LL indicated that JH knows what he wants to wear, eat, or buy and where he wants to go.
GM, a co-ordinator at the accommodation provider, in her written report dated 8 May 2020 indicated that JH had 'started to gain confidence to express his wishes to his mother, and that sometimes he has tried to challenge a decision his mother has made', and that he 'sometimes feels frustrated, and exhibits that when his decisions are not supported by his mother'.
GM indicated that the staff at JH's accommodation observed JH is capable of making simple decisions regarding his every day spending. He had been supported by the staff to engage directly with Perpetual Trustees to request additional funds to allow him to buy new bed linen of his choice, and a $100 a week allowance to support his skill development. GM noted JH had previously had no access to his finances and very limited choice and control over how his money was spent because all of those decisions were made by RH.
JH's General Practitioner, Dr L, provided a written report, stating that JH was incapable of simple or complex financial decisions. Dr L commented that RH manages the budget, pays accounts and handles decisions for JH, including collecting rent for the apartment JH coowns, and dividing it between JH and his brother. Dr L noted that RH handled legal matters. Dr L also found JH incapable of all personal decisions, noting however that he had capacity to assent to simple procedures, such as a flu vaccination, and had capacity to have input into decisions about accommodation and services. Dr L also stated that JH could understand but not speak, and noted that people who do not know him have difficulty understanding him. Dr L's report did not explain whether JH's perceived incapacity could be attributed to communication difficulties rather than cognitive impairment.
Dr A, a clinical neuropsychologist provided a comprehensive report, dated 29 July 2020. Dr A noted that standardised testing was not possible due to the need to adapt to the yes/no answering style required by JH's communication by eyegaze. In summary, Dr A found that JH had significant cognitive impairment (functioning in the lowest 5% of adults), with poor orientation, reasoning and ability to encode new information into memory. He demonstrated limited insight and understanding of his medical conditions. Although understanding of his need for support, JH had a restricted ability to forward plan, and Dr A found he did not have capacity to make medical or lifestyle decisions.
Similarly, Dr A found JH had a limited understanding of budgeting and the risks of mismanaging his money, including a limited understanding of the consequences of running out of money, and as a result did not have the capacity to make reasonable financial decisions.
Dr A noted that JH clearly indicated to her a number of views and wishes. These included a desire for an independent financial administrator, a desire to move to different accommodation with friends, a desire to participate in employment or volunteering opportunities and to have increased assistance to pursue romantic relationships. Dr A concluded that 'consideration as to whether there would be scope for [JH] to participate in decision-making regarding where he lives, following least restrictive practices, is recommended'.
On the balance of the evidence, and particularly in light of Dr A's detailed report, I am satisfied that JH lacks capacity to make reasonable judgments in relation to his personal and financial affairs. I am satisfied that the incapacity arises by reason of a mental disability that JH has, namely cerebral palsy with an intellectual disability arising from hypoxic brain injury at birth. The criteria in s 43(1)(b) and s 64(1)(a) of the GA Act are therefore satisfied.
The need for a guardian and an administrator
JH is a client of the NDIS with complex needs, residing in supported accommodation. He has stated his desire to explore alternative accommodation and services arrangements. I am satisfied that there are significant live issues and foreseeable ongoing circumstances for which he needs a guardian (s 43(1)(c)).
JH also has a complex estate including a Court Trust for which authority to make superannuation investments in JH's name is sought, a partshare in a rental property and significant savings in bank accounts. A legally authorised substitute decision-maker is required to ensure this is managed in JH's best interests, and he is therefore in need of an administrator (s 64(1)(b)).
Who should be appointed as guardian?
When determining who may be appointed guardian, the Tribunal is guided by s 44 of the GA Act:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal -
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible -
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(Emphasis added)
RH proposes herself for appointment as guardian for JH.
Contemporaneous file notes kept by the accommodation provider from March 2014 to August 2020 were filed as evidence. They document multiple occasions where the accommodation provider sought to have meetings with RH regarding various complaints and concerns she had raised, and also to formulate behaviour support plans for JH. There were multiple occasions where RH told staff she was too busy to meet with them, or failed to return voice messages left on her phone.
This included an occasion on 13 January 2020 where GM approached RH in person, while she was at the group home, seeking a meeting to resolve issues raised by RH, and was told RH was too busy. GM said she told RH that JH needed 'someone to engage with [the accommodation provider] in JH's best interest. If [RH] was not going to be that person, we should consider submitting a SAT. [RH] said go ahead'. RH disputed the contents of the log, however I give that documentary evidence significant weight, as the entries were made contemporaneously and its contents accorded with the oral evidence of the staff of the accommodation provider and Perpetual Trustees (in regard to issues of JH's access to financial information, which will be discussed later in regard to administration).
RM's investigation report on behalf of the Public Advocate of 14 August 2020 raises concerns regarding aspects of RH's suitability to be appointed as guardian. This includes issues of her availability and willingness to consent to medical treatment, specifically a decision not to agree to further diagnostic testing for coeliac disease 'because [she] had concerns about any further limitation to [JH's] diet given he enjoys sandwiches'. RM notes the ready availability of gluten free breads. RH disputed the version of events. RM noted she had had an independent discussion with Dr L in the preparation of her report. I prefer the evidence of RM, given that there is no reason for her to misrepresent the content of her discussion with Dr L.
RM also noted concerns raised by GM regarding accommodation and services decisions. RH's stated concerns about the current accommodation provider include serious allegations of abuse. RM questioned why RH has continued to place JH there, and why she has been too busy to meet with the provider as they have sought to understand and resolve her concerns.
RM noted that the current accommodation is conveniently located for RH, given she visits four times a week, and that Dr L had been told by RH that was a factor while discussing her concerns with him. RM's report states that similarly JK thought that the convenient location meant JH would stay at his current home until RH dies (assuming she remains involved in decisions about his accommodation).
Dr A's report indicated that although he lacked capacity, JH was able to express to Dr A his views and wishes. These included that he would like an independent person to manage his finances, he wanted to move to alternative accommodation, to explore possible employment opportunities and to be assisted to explore romantic opportunities.
RH indicated that she would be willing to assist in these areas, but she had previously been unaware of JH's wishes in regard to romance (however has been aware of his wish to move to different accommodation). In regard to alternative accommodation she stated she had looked at options via JH's community access support provider, but there was no place available initially. She said that if she were appointed she would explore options at the current accommodation provider, which is close to her, or possibly with another provider.
Given the documented difficulties in communication with the accommodation provider I was not persuaded that RH would actually do this. RH contends in her written submissions of 26 October 2020 (written submissions) that the breakdown in communication with the accommodation provider is the fault of the staff. I reject that contention. The contemporaneous notes, the demeanour of the staff at the three hearings, and their support to JH which could be observed throughout, demonstrated the care and sincerity with which they seek to act in his best interests.
JH indicated that he wanted GM rather than RH to arrange the formal cognitive assessment. He indicated to Dr A that he preferred an independent guardian and administrator. When provided with binary choices in regard to RH, FH (his brother, who lives in Myanmar) and JK, he indicated that he did not want a family member appointed as administrator or guardian.
RM recommended the appointment of an independent guardian to bring a 'fresh pair of eyes'[11] to the issues of accommodation, services and medical decisions.
[11] ts 42, 26 October 2020.
On balance, despite her close relationship with her son, I could not find RH suitable for appointment as guardian due to the serious concerns that she has not made decisions in the best interests of JH in regard to attempting to investigate a diagnosis of coeliac disease, her own allegations that he is suffering neglect with his current provider, and her being too busy to meet with the provider on multiple occasions. Because of these concerns, s 44 (1)(a) (that I would need to be satisfied RH would act in JH's best interests), s 44 (2)(d) (that I find that RH will be able to perform the functions vested in a guardian including in JH's case liaising with accommodation and services providers in a way that serves JH's interests) and s 51(d and f) (that RH would need to protect him from neglect, abuse and exploitation, in a manner that is least restrictive of his rights, while still consistent with his proper protection) are not met.
FH and JK indicated that they were willing to be appointed solely or jointly with RH as the guardian for JH.
JH indicated clearly that he did not want any of his family members appointed as guardian. Section 44(2)(c) states that I shall take into account as far as is possible, the wishes of JH in assessing suitability.
Given JH's clearly expressed preferences, and the issues with RH's decision-making for him, it seems likely that RH's appointment would also jeopardise her relationship with JH (cf s 44(2)(a)).
FH and JK's supportive relationships with JH would similarly be at risk if I appointed them as guardians in contravention of his wishes. In addition, FH's current residence in Myanmar makes the practicalities of investigating alternative accommodation or service provider options logistically challenging.
Taking the principles of s 44 and s 51 into account, I am satisfied it is in the best interests of JH to have the Public Advocate appointed as his independent guardian.
Who should be appointed as administrator?
When determining who should be appointed administrator, s 68 states:
(1)An administrator (including a joint administrator) shall be -
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal -
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person
…
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible -
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator[.]
(Emphasis added)
Section 70 of the GA Act sets out examples of how an administrator acts in the best interests of a represented person:
(1)An administrator shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible -
(a)as an advocate for the represented person in relation to the estate;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from financial neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment[.]
(Emphasis added)
RH has previously been appointed as the administrator of JH's estate, and proved a dogged and successful advocate in pursuing a compensation claim on his behalf. She has managed his estate in such a way as to ensure that he has ample funds in his name. Written submissions on her behalf reiterate her position that her suitability is demonstrated by her dedicating her life to JH and singlehandedly securing his financial future.
RH's brother, FH, and cousin, JK, support the appointment of RH as administrator on the grounds of her enduring close relationship with JH. There is no dispute that RH and JH do enjoy such a relationship.
On the other hand, the Tribunal received evidence that JH's support workers and others have concerns about RH's continuing suitability to manage JH's funds.
First GM expressed concerns regarding decisions made by RH for JH that have caused him distress. These include taking money that JH had been given by a housemate for his birthday from his wallet, a number of occasions where JH's medicine has run out despite notice from Ability Centre to RH that it was getting low and needed replacement, and her refusal of JH's requests for additional funds for discretionary spending on items such as bedroom furnishings. Contemporaneous logs of communication between support staff and RH regarding these matters were provided to the Tribunal.
Secondly, RM's report raised an issue concerning RH's criticism and disappointment that JH's current accommodation provider would not take him on holidays to Rottnest.[12] GM explained that the provider had taken JH on holiday, but that RH refused to pay the additional staffing costs that result when JH's preferred staff member is providing 1:1 care rather than shared care in the group setting. On that occasion the staff member experienced a loss of wages, but took JH on holiday anyway due to her commitment to him. However, it was not reasonable to expect that to happen on an ongoing basis, the gap in wages would need to be paid for to allow subsequent holidays. I note that JH has significant funds being managed by RH which would allow for costs of this kind to be met, to give effect to his expressed wishes.
[12] ts 13, 22 May 2020.
Thirdly, CM from Perpetual Trustees stated that there is correspondence on file from RH instructing that Perpetual Trustees staff were not to visit JH[13] (as would be normal practice) and that all correspondence was to go to RH. RH stated that 'a private letter incorrectly addressed to JH was opened by staff [at the accommodation provider]'[14] and 'that you wouldn't want everyone knowing your private details'. When I asked RH if she would normally go through such correspondence with JH she said 'Not usually'.[15] GM indicated that normal practice if mail is received addressed to a resident is that 'we wait for the customer to be there and I ask if they want us to open it and read it to them. And no matter where it's from, we open it and read it to them … So we are going to read anything that's confidential and read it to them, so that is just what we do'.[16]
[13]ts 31, 26 October 2020.
[14]ts 29, 26 October 2020.
[15]ts 30, 26 October 2020.
[16]ts 30 26 October 2020.
In her service provider report of 8 May 2020, GM stated that once JH became aware of the details of the Trust from this correspondence '[the support provider] assisted JH to engage directly with his Trustee. Prior to this he has had limited to no access to his finances and has very limited choice or control over how his money is spent'. A support worker, LL, related how JH had enjoyed spending the additional funds he negotiated with the Trustee in the form of $100 a week pocket money:
[JH] has bought four towels, four flannels, six singlets and two sets of bedsheets, and he's waiting for delivery any time this week - he has been very excited about that … he did save $365 on the deal, so he loves a bargain'[17].
[17]ts 24, 17 August 2020.
In her report, GM also reported that support staff contacted the Trustee and arranged to have a pharmacy bill paid where RH's failure to pay it had resulted in reduced access to medication for JH. GM indicated that staff were working with JH and the Trustee to 'help JH to understand his financial position and gain money handling/budgeting skills'.
GM's concerns regarding RH's control of JH's finances are supported by the contemporaneous file notes provided to the Tribunal by the accommodation provider. Those notes include documentation of occasions where birthday money went missing, and where delayed provision of medications causing distress to JH were raised with RH, and there was delayed or absent communication to allow timely resolution. Pharmacy issues are documented on three separate occasions since February of 2020.
In her written submissions, RH acknowledged there had been 'a slight breakdown of communication approximately nine months ago' but submitted that was due to staff at the accommodation provider. During the third hearing, I put to RH that the file notes documented multiple occasions where JH ran low on medications and quoted that evidence to her. She said 'They're not true. I've always had it on time'.[18] I prefer the evidence of the accommodation provider which is contemporaneous, detailed and clear.
[18]ts 8, 26 October 2020.
In regard to administration, JH has indicated that his preference is for an independent appointee, and he has formed a positive rapport with officers of Perpetual Trustees who administer his court trust, with the assistance of support workers from his accommodation provider. Written submissions on behalf of RH note the difficulty of discerning JH's wishes. RH expresses her concern that if she had been present in the room with JH, or if he could have seen her over the video-link, his answers might have been different. She acknowledges the counter argument that his wishes need to be ascertained absent any bias that might arise from her being in the same room. I note that the assessment by Dr A took place independently (albeit with a support worker assisting with communication) and the views and wishes expressed in her report were consistent with those expressed by JH at multiple hearings. I am satisfied that he has consistently expressed his desire for independent appointees.
Section 68(3)(a) requires that the Tribunal consider the compatibility of a proposed administrator with the guardian of a represented person. I am not satisfied that RH could work co-operatively with the independent guardian, given her response in regard to RM's explanation of why she was recommending that appointment for a term of two years was 'This is ridiculous'.[19]
[19]ts 44, 26 October 2020.
I am not satisfied that RH will act in the best interests of JH as his administrator as described in s 70 of the GA Act. Particularly, her actions have not been consistent with s 70(2)(c) in that withholding information regarding his Court Trust could not be seen as encouraging and assisting JH to become capable of making reasonable judgments in respect of matters relating to his person, s 70(2)(e) that actions should be taken in consultation with JH, taking into account as far as possible his wishes, and s 70(2)(f) that the administrator should act in the manner that is least restrictive of the rights while still consistent with the proper protection of JH.
RH did not demonstrate any change throughout the hearings and in written submissions in her understanding of the role of the administrator. Specifically, RH did not acknowledge an administrator's responsibility is not only to ensure that there are adequate funds for the support of JH (which she has done admirably), but also to take into account his views and wishes, and afford him the degree of information, access and opportunity to develop understanding and skills that is consistent with his proper protection (which the evidence shows has not occurred until he received the letter from Perpetual Trustees).
FH indicated his willingness to be appointed in any role for his brother. He is currently resident in Myanmar. I therefore cannot consider him for appointment as administrator at this time.
JK has a potential conflict of interest in that she has been gifted title of a house by RH (as confirmed in RH's written submissions). I am not confident that she could bring sufficient independence from RH to an appointment.
In regard to all the family members proposing themselves, s 68(3)(b) states that the Tribunal shall take into account as far as possible the wishes of JH. He indicated consistently and clearly that he opposed the appointment of RH, FH and JK when that was put to him regarding each person individually. I consider, for this reason and those outlined above, that none of the family members who indicated that they are willing to be appointed are suitable for appointment as administrator.
JH indicated that he would like Perpetual Trustees to be his administrator.
I note the statement by CM of Perpetual Trustees that in relation to the funds it manages currently (which are governed by a District Court order and therefore do not form part of JH's estate for the purpose of the GA Act, save for where they may be invested in superannuation funds),[20] it is possible for JH and support workers to liaise with it directly as they have been doing in recent months without needing to go via an administrator.[21] It is this new freedom which appears to have been greatly enjoyed by JH, and which will not be impacted by the appointment of an administrator.
[20]Perpetual Trustee Company LTD v Cheyne [2011] WASC 225 at [45]-[46] (Cheyne).
[21]ts 18, 17 August 2020.
RM recommended that the Public Trustee might be the best option for administration, on the basis that it is an independent, not-for-profit appointment. RM noted that Perpetual Trustees was also willing to be appointed.
RH indicated in her written submissions that she sought to be appointed plenary administrator, but her legal representative later indicated that she was willing to provide written authorisation, under s 68(2), to have Perpetual Trustees manage the Court Trust (as it currently does, and which does not require such an authorisation, as the appointment is made by the District court) and superannuation investments relating to the Court Trust (for which authorisation is sought by Perpetual Trustees, and which is required for oversight of such investments).[22] RH was not, however, prepared to give written consent to Perpetual Trustees being appointed JH's plenary administrator.[23]
[22]Cheyne at [46].
[23]ts 15, 26 October 2020.
Perpetual Trustees in its letter of 22 October 2020, indicated its preferred wording for a limited administration order to permit superannuation investment from the Court Trust, and also its willingness to be appointed the plenary administrator for JH should the Tribunal wish to appoint an independent administrator.
What are JH's wishes?
Section 44(2) and s 68(3) state that the Tribunal shall take into account as far as possible the wishes of the person in respect of whom the application is made when finding whether a person is suitable for appointment as a guardian and as an administrator respectively.
JH was consistent in his desire for independent appointees across the hearings, when asked multiple times, and when interviewed separately by Dr A for cognitive assessment.
RH indicated at the first hearing that she thought JH was having a joke when he indicated he would prefer GM arrange the formal capacity testing. She said 'He says one thing and then changes his mind very shortly after, and I think he has just done that, because I can hear him laughing'.[24] However, the questions were repeated and the answers remained the same.
[24]ts 21, 22 May 2020.
RG, counsel for RH, noted that it was not possible because of JH's communication style to explore the reasoning behind JH's desire for an independent administrator. I acknowledge the truth of this, however I am persuaded that JH's wish is consistently and durably expressed.
In written submissions of 1 Feb 2020, RG on behalf of RH, expressed the view that :
In any event, if [JH] wishes, as expressed, remained consistent under different conditions (such as irrespective of who was in the room with him, or, who he could see), then [RH] says she knows him better than anyone else, and, she does not believe he understood or understands the true nature of the questions asked of him, and, the implications of his answers. … The medical evidence does not support a conclusion that he would have understood.
It appears that JH has not had access to information, choice and control in relation to his finances to the level that he would like. Dr A's report indicates that JH does not have capacity to manage his estate independently, however all parties acknowledged that he enjoys shopping either in person or on-line. Some of his needs (reliable access to medication) and reasonable wants (to go on holiday with a support worker of his choice) were not met under the previous financial arrangements. However, the fortuitous delivery of information regarding his estate to his accommodation has afforded JH the opportunity to be assisted to contact his trustee and make measured steps towards having an appropriately greater discretionary allowance made available to him. Accounts filed with the Tribunal by the accommodation provider demonstrate that regular savings are going towards funds for the much desired holiday, as well as some modest discretionary spending.
In the circumstances, JH's preference for an independent guardian and administrator seems understandable, and I am satisfied that it is in his best interests. In part this is because it may protect the supportive relationship he enjoys with RH, by removing a source of friction in that relationship. I have taken JH's wishes, as expressed to Dr A at her independent assessment and to me at multiple hearings, into account in my decision.
Can the Tribunal appoint Perpetual Trustees in the absence of consent from a person who would otherwise be appointed as the administrator?
JH indicated that he would like Perpetual Trustees to manage his estate. The company already manages his Court Trust, and seeks a limited order authorising it to make superannuation payments for JH from those funds. The company has also indicated that it would accept appointment as the plenary administrator for JH.
Section 68(1) of the GA Act states that the Tribunal shall appoint either an individual over the age of 18 or a corporate trustee that it is satisfied will act in the best interests of the person and is otherwise suitable for appointment. Perpetual Trustees have demonstrated its suitability through its recent interactions with JH, and stated its willingness.
However s 68(2) states that the Tribunal shall not appoint a corporate trustee unless it is satisfied that -
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
JH has never had the capacity to make a will, so 68(2)(b) does not apply.
RH has indicated that she would write a request that Perpetual Trustees continue to manage the Court Trust and superannuation investments related to it if she were to be appointed plenary administrator, but would not be prepared to relinquish the aspects of the finances she currently controls to it.
For this to be possible, I would need to find RH (or another family member) suitable for appointment as plenary administrator for JH, notwithstanding the concerns about whether RH provides him with appropriate levels of information, choice and control consistent with the principles in s 70, and JH's consistently expressed wish that a family member not be appointed. For the reasons that precede this (at [46] [64]), I cannot find RH, FH or JK suitable for appointment, and so s 68(2)(a) cannot be fulfilled.
In my view the construction of s 68(2) of the GA Act is clear on the ordinary meaning of its terms. The provision precludes the Tribunal from appointing as an administrator of a represented person's estate a trustee company (as defined) unless the Tribunal is satisfied (as a matter of evidence) that the represented person appointed the trustee company executor under his or her will or the person who would otherwise be appointed administrator requests in writing the appointment of the trustee company as administrator.
I turn then, to whether I can make the orders effectively sought by JH, that Perpetual Trustees be appointed as his plenary administrator. Is the effect of s 68(2) to prevent me in these circumstances from appointing a corporate trustee in the absence of a written request from someone who would otherwise be appointed?
A corporate trustee under s 68(2) of the GA Act is a trustee company listed in Sch 8AA of the Corporations Regulations 2001 (Cth) (CORegulations). Perpetual Trustee is such a company.
Section 68(2) was included in the GA Act as passed and has not been the subject of significant amendment since then. I note the following comments and recommendation by the Department of the Attorney General in the Statutory Review of the Guardianship and Administration Act 1990 dated November 2015, as identified in the written submissions of the legal representatives for RH and for the Public Trustee:
Section 68 Who may be appointed administrator
Section 68(2) of the Act states that the Tribunal can only appoint a trustee company under the Trustee Companies Act 1987 as administrator if it is satisfied that an individual who would otherwise be appointed as administrator has requested the appointment of a trustee company or the represented person has made a will appointing the trustee company as executor. The Public Trustee has suggested that this provision is anticompetitive and was passed at a time when the Public Trustee acted as trustee for almost all court trusts that were established for the benefit of people with a disability and may not be in that person's best interests and be contrary to that person's wishes. The Tribunal has the power to appoint trustee companies as administrator under the Act, provided that this is in the best interests of the represented person. The person's will and the attitude of the family are relevant, but they should not be the only considerations. The Public Trustee recommends deleting section 68(2) and the reference to this subsection from paragraph (f) of Part B of Schedule 2 in the Act as it is not required.
Recommendation 36: That section 68(2) of the Guardianship and Administration Act 1990 is deleted.
It is therefore only once the Tribunal is satisfied that a person who it would otherwise appoint as administrator has requested in writing the appointment of the trustee company (or the valid will of the represented person names the trustee company as executor,) that the Tribunal needs to consider whether it is appropriate to appoint the trustee company, having regard to the best interests of the represented person.
The Tribunal's previous consideration of s 68(2) (although very limited) appears to be consistent with this construction. In PMB and LJB [2015] WASAT 96 (PMB), the Tribunal made an order appointing Perpetual Trustees as the limited administrator of the represented person's estate as it had the power to do so because the represented person had made a will appointing Perpetual Trustees as executor, which was unrevoked)[25] and it was determined to be in the best interests of the represented person to do so (a view which was shared by the Public Trustee).[26] It was determined to be in the best interests of the represented person due to the complexity of the estate and it being spread across Western Australia and New South Wales; as well as the established and successful relationship and compatibility between Perpetual's 'senior asset and lifestyle consultant' (who was managing the estate of the represented person in New South Wales prior to the application being made to the Tribunal) and the represented person and her family. The Tribunal noted that it was the satisfaction of s 68(2)(b) which meant that it was not 'precluded from appointing Perpetual'.[27]
[25]PMB at [46].
[26]PMB at [44]-[48].
[27]PMB at [47].
The recent decision RK [2021] WASAT 13 (at [98]-[99]) provides additional clarity:
98[I]n the absence of a will appointing the corporate trustee his executor, the Tribunal could not make an order appointing a particular corporate trustee as RK's administrator unless we were satisfied that there is an individual who would otherwise be appointed who has requested the appointment of that corporate trustee company.
99In this case AW is the person who has requested the appointment of the corporate trustee. She has acknowledged and we accept, that she would not be able to be appointed administrator because of the likely conflict with RK's guardian. CM has not requested the appointment of a corporate trustee. In the result, the appointment of the corporate trustee which AW has proposed would not be possible even if we had concluded that an administrator was required.
In the present case, because I have not found RH, FH or JK suitable for appointment, and as JH has not executed a valid will nominating Perpetual Trustees as his executor, I am precluded from appointing that company, even though to do so would accord with JH's wishes, and notwithstanding the rapport that its staff have built with JH and its collaborative and supportive approach with his support workers. I note in the interests of clarity that ongoing management of the Court Trust remains with Perpetual Trustees by reason of the District Court Order.
For those reasons, the only administrator available for appointment is the Public Trustee. In written submissions the Public Trustee consents to its appointment for JH with whatever functions the Tribunal deems appropriate in the circumstances, and states that it is not aware of any conflict of interest.
The orders sought by Perpetual Trustees to be appointed limited administrator for the purpose of superannuation investments from the Court Trust
The Supreme Court considered whether disposition of trust fund capital for superannuation policies to be held directly for the beneficiary is within the terms of a trust in Cheyne.
The Court concluded that such investment required the appointment of the trustee company as a limited administrator by the Tribunal, so that such investments would fall under the oversight of the Public Trustee, the Tribunal and the District and Supreme Court. This then affords the represented person at least the same degree of protection as he or she would have in regard to other utilisation of the trust funds (which would be supervised by the District Court).
The reason that superannuation funds are not able to be handled as part of the trust is that the represented person's interest in the superannuation fund must be in his or her name, and not in that of his or her Trustee.[28]
[28]Cheyne at [17]-[19].
Cheyne does not include direct consideration of s 68(2) although it notes at [46]:
…
(1)Provided that the SAT makes orders sought by Perpetual Trustee (and supported by Mr Cheyne, by his guardian) appointing Perpetual Trustee as a limited administrator, then all of the rights which Mr Cheyne has, as a member, against Perpetual Superannuation, will be subject to the control of the SAT[.][29]
(Emphasis added)
[29]Cheyne at [46(1)].
The implication is that the guardian ad litem for Mr Cheyne was in a position to provide a written request for the appointment of the trustee company, fulfilling s 68(2)(a).
Similarly in LS [2018] WASAT 64 (LS) , reference is made to a statement by LS's mother, CM, made 'for the purposes of s 68(2)(a) of the GA Act, requesting the appointment of Perpetual Trustees as the limited administrator' for LS to permit contributions to LS's superannuation fund from Trust asset.[30]
[30] LS at [6].
In Re Hoang Minh Le; Ex Parte The Public Trustee [2012] WASC 31 (Hoang), Beech J made orders under s 89 and s 92 of the Trustees Act 1962 (WA) to empower the Public Trustee to make superannuation investments from a court trust, as the existing terms of the court trust did not allow the proposed transfer. In seeking to reduce the need for similar applications, Beech J observed that:
[T]he District Court could direct that the trustee have power to apply the income and capital of the trust fund for the maintenance, welfare, advancement or otherwise for the benefit of the person under the disability. The effect of the decision in Cheyne is that an order to that effect empowers the payment of some or all of the trust funds into superannuation so long as that course is 'for the advancement or otherwise for the benefit of the beneficiary'.[31]
[31] Hoang at [24].
The Deed of Release (1 November 2006) in relation to JH predates the Cheyne and Hoang decisions. It directs Perpetual Trustees to invest the sum 'on trust for the benefit of [JH]'. Cheyne and Hoang recognise that placing trust funds in to superannuation can provide significant benefit. Cheyne makes it clear that an administration order is required for oversight to occur regarding such investments. I note that to maximise the tax benefit of such investments they have to be made within 90 days of the settlement. At that date, RH was the plenary administrator for JH. It is not clear to me whether the superannuation referred to in RH's application is from the Court Trust or JH's other income.
However, given that for the reasons discussed above I am precluded from appointing Perpetual Trustees as the administrator for JH (due to the effect of s 68(2)), management of JH's superannuation funds will form part of the duties of the Public Trustee within its plenary administration appointment.
Scope and term of the orders
JH needs a guardian to make medical treatment, accommodation and service provision decisions. Because of behaviours when frustrated including sliding down in his wheelchair, positive behaviour support plans which involve restrictive practices (such as a seatbelt in the wheelchair) may be required, and therefore an authority to consider whether or not to consent to the use of such practices will be included. Documents filed by the accommodation provider show efforts have been ongoing for some years to develop and finalise a behaviour support plan in partnership with RH.
JH is in need of a plenary administrator, given his complex estate and incapacity in regard to financial decisionmaking. He has multiple family members to whom he is very close, housemates and support workers, and therefore a gifting provision to permit him to buy presents for them if he wishes will be included.
Given that these orders will involve a significant change for JH in the way decisions are made for him, but that it is important to give him, his guardian and administrator time to understand the complexities of his situation and explore what arrangements will be in his best interests, a two year order will be made to allow for this. This will also provide JH and his family, particularly RH, the reassurance that a review at the Tribunal will occur fairly soon.
For the reasons above, I make the following orders:
Orders
1.The Tribunal declares that the represented person, [JH], is:
(a)unable, by reason of a mental disability, to make reasonable decisions 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 oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties of a plenary administrator conferred by the Guardianship and Administration Act 1990 (WA).
3.The Public Trustee is authorised to expend up to a total amount of $1000 per annum on gifts on behalf of the represented person.
Guardianship
4.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia 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 decide with whom the represented person is to live;
(c)To make treatment decisions for the represented person, subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA);
(d)To determine the services to which the represented person should have access;
(e)To decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (WA).
5.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
6.The administration and guardianship orders are to be reviewed by 18 February 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
19 FEBRUARY 2021
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