| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JM [2010] WASAT 194 MEMBER : MS F CHILD (MEMBER) HEARD : ON THE DOCUMENTS DELIVERED : 19 JANUARY 2011 FILE NO/S : GAA 2185 of 2010 BETWEEN : RK Applicant
JM
Represented Person
Catchwords: Guardianship and administration - Application for access to documents - Represented person deceased - Documents requested as uncertainty about the capacity of the represented person to make a will executed prior to the administration order being made Legislation: Guardianship and Administration Act 1990 (WA), s 4, s 43, s 64, s 112, s 112(3), s 112(4)
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Result: Application dismissed Category: B
Representation: Counsel:
Applicant : Ms E MacLeay
Represented Person : N/A
Solicitors:
Applicant : Shaddicks Lawyers
Represented Person : N/A
Case(s) referred to in decision(s):
Avsar v Binning [2009] WASCA 219
Banks v Goodfellow (1870) LR5QB 549
In the Estate of Kazacos; Redroff v Miegoch (unreported, NSWSC, Library No BC9600892, 22 March 1996)
Re MB [2004] WAGAB 25
Re MM (2001) 28 SR (WA) 320
Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Applications were made to the Tribunal for access to documents held on a file in the possession of the Tribunal, previously held by the former Guardianship and Administration Board. The file dealt with applications made to the Board in June 2004 for the appointment of an administrator and a guardian for an elderly woman. 2 The applications for access to documents were made to the Tribunal following the woman's death in January 2010. 3 The applications for access referred to the woman's capacity to execute a will made in 2004 and sought access to documents thought to be relevant to that issue including transcripts of hearings, any written reasons and other relevant documents. No written reasons or transcripts had been produced of the proceedings in 2004 and so access could not be granted to them. 4 The Tribunal refused the application for access to medical reports and other documents because the reports had been created for the purposes of the original applications; that is, the determination of the need for a guardian and administrator for the woman pursuant to the Guardianship and Administration Act 1990 (WA). The request for access to the documents was for a different purpose. To grant access for the stated purpose was contrary to the public interest in maintaining the integrity of processes for dealing with applications for the appointment of guardians and administrators made under that Act.
Application 5 These written reasons relate to determinations of the Tribunal that applications for inspection and access to documents be dismissed. 6 The applications for inspection are brought pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) (GA Act) for access to documents held on the file of the former Guardianship and Administration Board (Board) now in the possession of the Tribunal regarding applications made to the Board in 2004 for the appointment of a guardian and administrator for the represented person (JM). 7 Most of the jurisdiction and functions of the former Board were transferred to the Tribunal from January 2005. (Page 4)
8 For the purposes of these written reasons, names of the persons, including the applicant, will be anonymised consistent with the practice of the Tribunal in respect of applications made under the GA Act. 9 JM was made subject to an administration order dated 14 July 2004 by which RK and MO were appointed her joint plenary administrators. An order was also made revoking an enduring power of attorney dated 23 April 1999 by which JM had appointed MO to be her attorney. The Public Advocate was appointed her limited guardian. 10 The orders were subsequently reviewed in 2006 and the guardianship order was revoked. The administration order was varied and a new order made appointing RK as the sole attorney. That order was confirmed in September 2009 and continued until the time of JM's death in January 2010. 11 The applications for inspection are made by RK, the former administrator, and RB, a nephew of the late JM. The applications were prepared by the solicitors acting for the applicant. 12 Access is sought in the applications to either copies of the documents or inspection by the solicitor, of documents said to relate to JM's mental capacity, 'including medical reports, transcripts of proceedings and reasons for decision, and any other relevant documents'. 13 In a review of the material on the file, it is apparent from the documents that there was conflict between RK and MO, who is noted in correspondence in 2006 as being the sole beneficiary of JM's will. It is not apparent from the applications for inspection whether an application for the grant of probate of a will of JM has been made. 14 The application for access to the documents is said to be based on the belief of the applicant that JM 'may have suffered from dementia when she signed her will'. The application goes on to say that the 'late [JM]'s general practitioner himself suffers from dementia and his practice has destroyed all files'.
Section 112 of the GA Act 15 Section 112(4) regulates access to documents in respect of proceedings brought under the GA Act. As can be seen from the provisions, it is restrictive in its terms. A penalty is created for unauthorised access (s 112(3) of the GA Act). 16 Section 112 of the GA Act provides as follows: (Page 5)
(1) A represented person, a person in respect of whom an application under this Act is made or a person representing any such person in any proceedings commenced under this Act is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to - (2) Any other party to any proceedings commenced under this Act, or a person representing any such party, is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purpose of those proceedings, other than a document or material that is or contains a medical opinion not being an opinion concerning that party. (3) Except as provided in this section, no person (not being a member of the State Administrative Tribunal or a member of staff of the Tribunal) shall, unless he is authorised to do so by order of the Tribunal, inspect or otherwise have access to a document or material lodged with or held by the Tribunal for the purposes of any application, or to any accounts submitted under section 80. Penalty: $2 000 or imprisonment for 9 months. (4) The State Administrative Tribunal may on the application of any person - (5) An application under subsection (4) may be made ex parte or the State Administrative Tribunal may give directions as to the persons to whom notice of the application shall be given and who shall be entitled to be heard. 17 The present application is brought under s 112(4) of the GA Act. (Page 6)
18 The Full Board of the Board, when considering an application for review of refusal of inspection under s 112(4) of the GA Act made by a single member, made the following statements in respect of the operation of that section: Re MB [2004] WAGAB 25 (Re MB) at [34]: The circumstances in which a person is entitled to inspect or have access to documents or other materials held by the Board are limited. This is to be expected in the administration of an Act that provides for the guardianship of adults who need assistance in their personal affairs and the administration of estates of persons who need assistance in their financial affairs. ... Documents and other material held by the Board very often go to matters that are highly confidential in respect of the health and safety of the person who may be in need of a guardianship order. In those circumstances, it is to be expected that only a limited class of persons would ordinarily be entitled to inspect documents held by the Board. And later at [35]: The Full Board restated the policy underpinnings of that provision. As observed by the Board, the provision of s 112 reinforces two important policies. Firstly, the protection of the privacy of the person involved in the proceedings before the Board and in particular a proposed represented person or a represented person; and secondly, the public interest in the integrity of the Board's processes which relies on the ability to obtain sensitive information from a variety of sources; see Re MM (2001) 28 SR (WA) 320. 19 The Full Board went on to say at [59] [60]: We agree with the observation in Re MM (supra) at 332, that s 112(4) provides the Board with a broad discretion on the application of any person who on its own initiative to allow inspection of or access to documents lodged with or held by the Board for the purposes of any application. We also agree with the further expression of the opinion in Re MM at 332 that s 112(4) is not limited in its terms and in an appropriate case, may include inspection or access to relevant documents or material for the purposes other than proceedings before the Board, although the circumstances in which the Board would ordinarily exercise this power may be considered limited. As the Board said in Re MM ... : ' ... given the sensitive and confidential nature of much of the material held by this Board, we are of the view that where an applicant requests the Board to exercise its discretion under s 112(4) for the purposes not related to proceedings before the Board, he or she must provide very cogent reasons and demonstrate a particular need as to why inspection should be allowed (see generally De Hass v Murcia and Associates, Supreme Court (Page 7)
of Western Australia Library No 980633, per Templeman J). It is not sufficient to rely on a general desire to be informed.' 20 When considering the nature of the discretion to allow access under s 112(4) of the GA Act, the Full Board confirmed that the discretion is a wide one and may be exercised on an application or at the initiative of the Board (now the Tribunal). 21 The Full Board considered the circumstances when this discretion might be exercised at [66] and [67]: ... [W]e think there are good reasons, relating to good public administration why the Board's power to grant access to relevant documents and materials under s 112(4) should not be construed narrowly. It is possible to envisage a number of circumstances in which for example persons charged with by law with the responsibility to conduct investigations in the public interest may seek to inspect documents or materials that were lodged with or are held by the Board for the purposes of an application. The Board should be able to determine on application by application basis whether the request for access by a person should be granted. But as the Board said in Re MM above, the reasons advanced in support of a request for access under s 112(4) will need to be cogent and justified on a 'need to know' basis. ... 22 The Full Board confirmed that the requirement in each application under s 112(4) of the GA Act be assessed and determined on its merits. 23 In this case, the applications are brought because the applicant seeks information relevant to the question of capacity of JM to execute a will. 24 Dealing first with categories of documents requested; there are no written decisions produced by the former Board in relation to the proceedings (other than the orders which have been sent out to the parties to those proceedings, which included RK), nor are there any transcripts of hearings held on the file. Since documents in these categories do not exist, access cannot be granted to them pursuant to s 112(4) of the GA Act. 25 Turning to the medical reports 'and other relevant documents'. 26 When applications for the appointment of guardians and administrators are made, medical reports about the person for whom orders are proposed are sought to assist the Tribunal to determine whether the proposed represented person is a person for whom orders can be made. To make those orders, the Tribunal must be satisfied that s 43 (Page 8)
(for the appointment of a guardian) and s 64 (for an administrator) of the GA Act apply to that person. Both those sections are subject to s 4 of the GA Act. The relevant parts of those provisions are set out below: 4. Principles stated (1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section. (2) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made. (3) Every person shall be presumed to be capable of (a) looking after his own health and safety; (b) making reasonable judgments in respect of matters relating to his person; (c) managing his own affairs; and (d) making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the State Administrative Tribunal. … 43. Making of guardianship order (1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 - (a) has attained the age of 18 years; (b) is - (i) incapable of looking after his own health and safety; (ii) unable to make reasonable judgments in respect of matters relating to his person; or (iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others; (Page 9)
64. Making of administration order (1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 - (a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; … 27 In the case of JM and the applications made in 2004, medical and other reports were sought from the Department of Aged Care and Rehabilitation at Bentley Health Service. Although there was correspondence to a doctor noted as the general practitioner of JM, no report from a general practitioner appears on the 2004 folio of the file. Later folios contain reports from general practitioners but they, in both cases, were produced some years after the will was said to have been executed in January 2004. 28 The test for capacity to execute a will is that the testator have 'sound mind, memory and understanding': see Banks v Goodfellow(1870) LR5QB 549 at 565. 29 Medical reports which were before the Board on an application made in 2004 were referred to in a recent decision in probate proceedings in the Supreme Court in Avsar v Binning [2009] WASCA 219. His Honour, Owen JA, said [at 82]: I mention these medical reports 'in passing' because I accept that the reports were produced for a different purpose and are not, themselves, in evidence in these proceedings. However, I have included reference to them because they were referred to by the appellant in her oral submissions (appeal ts 37) and are part of the evidentiary context in which the dispute would fall to be decided. (Emphasis added) 30 Having considered the material before the Board, his Honour, Owen JA, notes at [79] referring to the case of In the Estate of Kazacos; Redroff v Miegoch (unreported, NSWSC, Library No BC9600892, 22 March 1996) 'that memory loss does not necessarily or even logically suggest mental incapacity of the type that deprives a person of the ability to understand the nature of a will and the dispositions of property that it contains'. (Page 10)
31 Relevantly, in this case, the will of JM is said to have been executed by her in January 2004 before any declarations of incapacity were made and orders made by the Board. 32 Although the test for capacity to execute a will and the tests established in the GA Act for the appointment of administrators and guardians are different, it does not follow that material lodged with the Tribunal (or the former Board) for the purposes of applications made under the GA Act would not be relevant to the question of testamentary capacity. It may be that in some cases there may be reports or other material which is directly relevant to that question. 33 There remains the question, however, whether material produced for the purposes of the GA Act and addressing the tests in that legislation in respect of a person at a particular time should be made available for a different purpose. 34 The objects of the GA Act include: 'to provide for guardianship of adults who need assistance in their personal affairs [and] for the administration of estates of persons who need assistance in their financial affairs'. The legislation is not related to the administration of estates of deceased persons. This is set out in Re the Full Board of the Guardianship and Administration Board[2003] WASCA 268, (Full Board case) at [57] by Heenan J: The purposes of conserving the estate of a person under administration during his lifetime for his own advantage and benefit, which is so obvious in the Guardianship and Administration Act, cannot be regarded as extending to the conservation or preservation of the estate after death, where a person the subject of protection has ceased to have any mortal needs. This is expressly recognised in the Act by s 78(1)(b) which provides that the authority of an administrator of the estate of a represented person ceases on the death of the represented person. 35 To allow release of, or access to, the documents to the applicant from the Tribunal's file, for the stated purpose of the application, does not uphold the public interest identified inRe MM (2001) 28 SR (WA) 320, and confirmed in Re MB, in maintaining the integrity of the processes of the Board (now the Tribunal), in determining applications for the appointment of guardians and administrators for persons for whom such applications are made to further the objects of the GA Act. 36 As was stated by the Board, that process 'relies on the ability to obtain sensitive information from a variety of sources'. In particular, the Tribunal is reliant on the willingness of medical and other (Page 11)
professionals to provide reports (usually without cost), to enable the Tribunal to determine the matters before it. 37 If it were apparent that reports provided for the purposes of dealing with an application for the appointment of an administrator or a guardian may be available for the purposes as outlined by the applicant, then those who produce reports or put material before the Tribunal at hearings may be hesitant to do so. 38 If there is a doubt about the capacity of JM to execute a will submitted for probate, it is a matter for the court dealing with that application to resolve that question. Medical records of JM may be able to be obtained from the creators of those records. 39 As there were other health professionals involved in the care of JM in her lifetime, the reported destruction of the general practitioner's records does not persuade the Tribunal that an exception should be made in this case to the general principle outlined. 40 Therefore, the applications are refused.
Orders |