JS - [2012] WASAT 220

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JS [2012] WASAT 220

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 20 SEPTEMBER 2012 AND 3 OCTOBER 2012

DELIVERED : 26 OCTOBER 2012

PUBLISHED : 1 NOVEMBER 2012

FILE NO/S: GAA 2394 of 2012

MATTER: JS
Represented Person

Catchwords:

Guardianship and administration Administration Family in conflict Whether independent administrator should be appointed Best interests Separate and independent welfare

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 90

Result:

Public Trustee appointed plenary administrator

Summary of Tribunal's decision:

In March 2012, the Tribunal appointed a daughter as the administrator for her mother's estate. The Public Trustee was also appointed as administrator to deal with two contentious matters that were the subject of dispute between the daughter and her siblings.
On review of the order after six months, it was found that the acrimony between the woman's children had not abated and had, in fact, exacerbated in light of new information that was presented at the review hearing.
The Tribunal found that as a consequence, the respective views of the children were clouded by the intense nature of the animosity they held, such that it distorted a consideration of what was best for the woman's separate and independent financial welfare.
The Tribunal revoked the order made in March 2012 and appointed the Public Trustee as plenary administrator.

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

Case(s) referred to in decision(s):

RE AM; EX PARTE JS [2012] WASAT 137

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The principal parties in this matter are:
JSrepresented person;
BAdaughter;
DBpartner of BA;
JMdaughter;
AMpartner of JM;
PSson; and
PBpartner of PS.
This matter comes before the Tribunal by way of a review of an administration order made on 9 March 2012. The March order appointed BA as the limited administrator of the estate of JS with plenary powers, save and except two functions given to the Public Trustee. These functions were:
•to bring to a conclusion and, if appropriate, to settle the civil proceedings taken by the represented person against JM and PS in the Magistrates Court (case number deleted) and if necessary to seek legal advice and representation in the matter; and
•to investigate and determine whether PS owes the represented person any monies advanced by way of loan or loans and to initiate recovery of such monies either on demand or by way of an arrangement to pay.
The reasons for the order made in March 2012 are set out in RE AM; EX PARTE JS [2012] WASAT 137 at [116] [127] (AM).
The order was set for review in six months.
The review was heard on 20 September 2012 and 3 October 2012.
What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal on 26 October 2012.

Tribunal powers upon review

Section 90 of the Guardianship and Administration Act 1990 (WA) (GA Act) gives the Tribunal authority, upon review of an administration order, to confirm the order, amend the order, revoke the order or revoke the order in favour of a new order.
The decision of the Tribunal must be made in what it considers to be the best interests of JS.
The other principles stated in s 4 of the GA Act continue to apply.

Evidence and submissions

The Public Trustee has finalised the matter of the civil proceedings in the Magistrate's Court. This was no easy task. It required negotiations with the conflicting parties and convincing the Magistrate of the merits of the settlement on 20 July 2012.
BA states she was not happy with the efforts of the Public Trustee, both, it appears, as to the amount settled and to the amount accepted as a contribution to legal costs from JM, AM and PS. JM, AM and PS, on the other hand, state they were satisfied with the Public Trustee's actions.
Settlement of this matter came at a not inconsiderable financial cost to JS, an unfortunate consequence, in my view, of the ongoing hostility between her children.
The Public Trustee states that the settlement of the civil proceedings is in the nature of a Court trust, and is of the view that the settlement funds are therefore outside of the scope of any administration order made by this Tribunal.
The second matter, the conduct of the loan to PS, unfortunately gives full expression to the hostility between the children of JS.
The Public Trustee has been unable to come to a settled view on the original amount of the loan, what PS still owes and what repayment arrangement was agreed, despite intensive investigation and discussion with the relevant parties.
Full details of the investigation are contained in the report of the Public Trustee dated 12 September 2012. The report was considered at the hearing on 20 September 2012.
Relevantly, the report shows that:
•PS initially stated that he believed the loan was $12,000 and that he had made repayments such that the current balance was about $9,500; and
•he understood that the arrangement with his siblings was that he would repay the balance at the time of the distribution of JS' estate, by which I take him to mean upon her death.
PS later advised the Public Trustee that the balance of the loan was $4,700, using as evidence a payment summary document from the Department for Veterans Affairs (DVA) dated 30 June 2010.
BA reportedly said that the balance of the loan was closer to $11,000. She provided bank statement evidence that PS had made (at least) nine payments of $100. BA said she had no knowledge of the repayment arrangement referred to by PS and that, in her view, the loan should be paid in full on demand. She said this is also the view of JS.
Prior to the DVA's payment summary becoming available, BA is reported to have said to the Public Trustee that she had not advised the DVA of any gift or loan to PS.
At the hearing on 20 September 2012, at which the payment summary was produced, BA said that the figure of $4,700 on the document as the loan to PS was, in effect, a manufactured amount provided to the DVA so as to ensure JS' pension was not affected. It should not be taken as representing the actual loan amount or the actual balance owing.
Prior to the reconvened meeting on 3 October 2012, the Public Trustee, on 25 September 2012, submitted further correspondence from the DVA dated 20 September 2012, in which it is stated that BA had advised the DVA on 10 September 2008 that the loan to PS was valued at $4,700, and then later informed the DVA, on 5 July 2010, that this money had been gifted to PS on 5 June 2010.
In light of BA's alleged failure to inform the Tribunal at the hearing on 20 September 2012 that she had advised the DVA that the $4,700 was, in fact, a gift, the Public Trustee submits that BA is no longer suitable to be the administrator of JS' estate.
Also, on 25 September 2012, AM submitted an email from BA dated 20 September 2012 (made after the hearing) which, in effect, states that, should the Public Trustee be appointed as JS' full administrator, she would relinquish her role as guardian and that, further:
… under these circumstances it would be impossible for us to continue allowing Mum to live on our property with us.
BA was given the opportunity to respond to the new information, which she did by way of a written submission dated 2 October 2012.
In that submission, she relevantly states that her statement in the email of 20 September 2012 was a reaction to 'the absolute hell' she had been put through as a consequence of AM's original applications to the Tribunal, and also because of difficulty she would have working with the Public Trustee in light of her experiences dealing with certain officers of the agency in the civil matter. She goes on to state:
It is clearly an obvious requirement that the Guardian and Administrator are able to cooperate in order to best serve the protected person. My recent experiences with the Public Trustee have led me to have serious doubts as to whether this cooperation would exist if they were appointed Administrator. I can only judge the likelihood of the situation after having seen a full and comprehensive plan supplied by the Administrator in relation to dealing with my mother's day to day needs and costs.
And further:
It is my sincere hope that my mother is able to remain under my Guardianship and living with me as I believe that in her present state of reasonable good health she does not need to be put in a Home and it is her desire that she continue living with us. It would be an absolute travesty if my mother were to find herself being put into a Home as a result of issues other than her health.
In her submission of 2 October 2012, BA states that when she had time to review the circumstances of the information given to the DVA in respect to the loan to PS, her reconsidered view is that she simply did not have a recollection of a conversation with her mother about the amount of $4,700, or of advising the DVA in July 2010 that it had become a gift. She states:
However[,] as a result of the DVA correspondence it has prompted me to remember that the $4,700 was, I believed, the 'maximum amount that could be gifted' and can only assume that under the authority of my EPA at the time myself and my mother had decided to lessen [PS'] burden by making it so.
BA states that in recalling a conversation with her late father, the original loan to PS was $15,000. She submits that it is only as a result of JM's involvement that PS has not paid back the loan (although she accepts that after the last $100 repayment in July 2009, she asked PS to stop paying because it was affecting JS' pension).
In her written submission, BA submits that she has effectively managed JS' financial affairs since the death of her father, and that it is the wish of JS that she continue. She submits that JS should not be put to the cost of a Public Trustee appointment where it is not necessary to do so.
In a written submission dated 22 September 2012, AM submits that the email of BA dated 20 September 2012 is a demonstration of BA's insincerity in her desire to care for JS. He submits that if she were to no longer care for JS, she should be made to repay the money that has come from the estate of JS to make improvements to her house, as JS would lose the benefit of those improvements.
In a written submission dated 25 September 2012, JM states that if BA asks JS to leave her home, she would like JS to come to Queensland to live in a 'cared facility'. She submits that the Tribunal should consider whether she, AM, PS or PB should be given the opportunity to act as the administrator and guardian of JS.
In a written submission dated 1 October 2012, PB agrees with the proposal by JM that JS move to Queensland, and proposes AM as administrator.
At the hearing on 3 October 2012, BA reiterated what she said in her written submission of 2 October 2012 that her email of 20 September 2012 had been an impulsive reaction to stress and that she intends now to continue to care for JS. She states that she could not bear to have her mother accommodated in an aged care facility.
JM, AM, PS and PB question the truthfulness of what BA says (for example, PS states that the loan was made by his mother, not his father), and they now propose the appointment of the Public Trustee as administrator.
The delegated guardian from the Office of the Public Advocate also supports the appointment of the Public Trustee.

The decision of the Tribunal

It was clearly my intention at the time of making the administration order in March 2012 to attempt to separate the outstanding matters of contention in JS' financial affairs from the daytoday management of her estate. It was hoped that once these matters were resolved, the ongoing management of JS' estate could proceed in an orderly way.
I made the order in the knowledge that there was significant animosity between the children of JS, specifically BA as against JM (and her spouse AM) and PS (and his partner PB).
My hope and intention has not, unfortunately, been realised.
The evidence, in my view, points to an exacerbation of the confrontational relationships that exist between the children of JS as the Public Trustee has attempted to settle the matters given to him by the Tribunal.
The Public Trustee put it succinctly in his report of 12 September 2012, when he states:
There is extreme conflict between BA and PS on this matter [the loan to PS], further inflamed by the events raised during this investigation.
I am satisfied that the evidence and submissions of the children and their partners continue to be filtered through their dislike and mistrust of each other.
I am satisfied that as a consequence, their respective views are clouded by the intense nature of the animosity they hold, such that it distorts a consideration of what is best for JS' separate and independent financial welfare.
This is evident, for example, in the statement of PS that the balance of the loan from his mother is now $4,700 on the strength of an acknowledged incorrect or partial figure given to the DVA by BA and when he had not much earlier stated to the Public Trustee that the balance was about $9,500.
It is also evident in the evidence given by BA in respect to the loan to PS, which, in my view, was intended to place pressure on him in the demand of full and immediate repayment of the loan when, in 2009, she had advised him to stop making repayments. Prior to the complete breakdown in relationships in about the middle of 2011, the matter of the immediate repayment of the loan does not seem to have concerned BA or JS.
It is further evident in BA seeking the support of JS in the demand for immediate repayment of the loan to PS. JS has a cognitive impairment which is progressive in nature; she is not, in my view, now able to fully understand the origins of any agreement as to how the loan was to be repaid (or, for that matter, to mediate the dispute between her children in her own best interests).
I am not persuaded by the evidence of BA in her explanation of the information given to the DVA about the loan and/or gift to PS. It is selfevidently mandatory for a person who is in a fiduciary relationship with another person (as is an administrator with a represented person) to provide, to the best of their knowledge and belief, correct information to all relevant statutory authorities with whom the represented person must deal.
I see no evidence to convince me that my concerns will be ameliorated in the future. My earlier comment that relationships have completely broken down remains apt.
The giving of certain contentious matters to the Public Trustee has not dampened the intensity of the mistrust. In the current circumstances, every significant financial transaction on the estate of JS will likely come under intense scrutiny, whether warranted or not.
This cannot be in the best interests of JS.
It is therefore my decision that the Public Trustee should become the sole administrator of the estate of JS, so that her independent financial welfare can be progressed free of the damaging relationships that currently exist between her children.
This decision should not be seen by some of the parties as a win. In coming to my determination, my only focus has been what is in the best interests of JS.
In speaking of best interests, it remains my view that it is in JS' current best interests that she continue to live with BA and enjoy community living and support. The initial reaction of BA after the hearing on 20 September 2012 was unfortunate, but I accept that she has reaffirmed her position that JS should live with her.
BA has said that she would expect a clear and comprehensive financial plan to be developed for JS so that the management of the estate operates smoothly. I, too, have that expectation and am confident that the Public Trustee, given his vast experience in these matters, will develop such a plan in consultation with BA.
The order for administration will be reviewed, together with the guardianship order, by 9 March 2014.

Order

1.The order of 9 March 2012 is revoked and an order in the following terms be substituted for it:
The Public Trustee is appointed the administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The order is to be reviewed by 9 March 2014.

I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER