KF and Anor
[2006] WASAT 47
•27 FEBRUARY 2006
KF & ANOR [2006] WASAT 47
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 47 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2116/2005 | 20 JANUARY 2005 | |
| Coram: | MS D DEAN (MEMBER) | 27/02/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | 1. Daughters appointed joint plenary administrators 2. The enduring power of attorney executed 10 September 2001 is revoked | ||
| B | |||
| PDF Version |
| Parties: | KF CS |
Catchwords: | Application for administration – Capacity – Family conflict – Enduring power of attorney not workable because of conflict between the donees – Administrator appointed |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 64, s 64(1), s 70, s 108, s 108(1)(a) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KF & ANOR [2006] WASAT 47 MEMBER : MS D DEAN (MEMBER) HEARD : 20 JANUARY 2005 DELIVERED : 27 FEBRUARY 2006 FILE NO/S : GAA 2116 of 2005 BETWEEN : KF
- Represented Person
CS
Applicant
Catchwords:
Application for administration – Capacity – Family conflict – Enduring power of attorney not workable because of conflict between the donees – Administrator appointed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 64, s 64(1), s 70, s 108, s 108(1)(a)
Result:
1. Daughters appointed joint plenary administrators
2. The enduring power of attorney executed 10 September 2001 is revoked
(Page 2)
Category: B
Representation:
Counsel:
Represented Person : N/A
Applicant : N/A`
Solicitors:
Represented Person : N/A
Applicant : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal’s decision
1 In this case the applicant sought the appointment of an administrator for the represented person, an elderly man with dementia living in a nursing home. The application was made by the represented person's step-daughter who, with her mother, the represented person's wife, was the joint donee of an enduring power of attorney executed some years previously by the represented person.
2 The applicant said that the enduring power of attorney was not workable because of the level of conflict between her and her mother who refused to provide any information about the represented person's estate and further, according to the applicant, was mismanaging the represented person's estate for her own benefit.
3 The represented person and his wife had been married for more than 25 years. Both had been married previously and brought children to the marriage. The represented person had two daughters from his previous marriage and the wife had a daughter from a previous marriage who was the applicant in this matter. The wife was said to have a warm and comfortable relationship with the represented person's two daughters.
4 The Tribunal found that the enduring power of attorney was not workable because of the conflict between the donees. The Tribunal therefore revoked the enduring power of attorney and appointed the represented person's daughters joint administrators of his estate with the proviso that they apply or expend monies of the represented person's estate for the maintenance, necessaries, comforts and benefits of the wife as much as they considered reasonable having regard to the circumstances and value of the estate.
Background
5 On 22 November 2005, the applicant, CS, filed an application with the State Administrative Tribunal (the Tribunal) for the appointment of an administrator for her stepfather, KF.
6 KF has been married to RF for more than 25 years. It is a second marriage for both, and both of them brought children to the marriage. KF has two daughters (RP and CF) from his previous marriage. RF has a daughter, CS (the applicant), from her previous marriage. In her application the applicant describes the blended family and states that KF
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- has never had a close relationship with his daughters, but describes a close relationship between her mother and one of KF's daughters, RP.
7 The applicant reports that KF has dementia and requires high-level residential care. The applicant said that prior to KF's move into residential care she provided regular support for KF and her mother in their home which was close to where she and her husband lived.
8 The applicant provided the Tribunal with a copy of the enduring power of attorney executed by KF in September 2001 in favour of his wife and the applicant. The applicant said that the enduring power of attorney was not working because her mother refused to provide her with any information about KF's estate and was spending his money as though it was hers.
9 The applicant's husband, RS, is the executor of KF's will which is held by RS.
Relevant Legislation
10 The principles to be observed by the Tribunal when making determinations in relation to applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (the Act).
11 These principles are:
"(2) (a) 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.
(b) Every person shall be presumed to be capable of ¾
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
- (c) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d) A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e) An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."
12 Section 64(1) of the Act states that before an administrator can be appointed the Tribunal must be satisfied the person:
"(a) is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate."
13 Section 70 of the Act provides for the best interests of the represented person.
"(1) An administrator shall act according to his opinion of the best interests of the represented person.
(Page 6)
- (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.
"(1) Where it makes an administration order or an order under section 65 or 66 in respect of the estate of the donor of an enduring power of attorney —
(a) created under section 104, the State Administrative Tribunal may revoke or vary the power; …"
(Page 7)
Information before the Tribunal
Medical and other reports
15 In addition to a copy of the ACAT report, written reports were received by the Tribunal prior to the hearing from the applicant, the manager of the nursing home and the GP. These reports were consistent in their assessment of KF having advanced dementia, being dependent on others for all his activities of daily living and without the capacity to make reasonable decisions about any aspect of his life or estate.
Hearing
16 The hearing was attended by the applicant and her husband by telephone, the wife, KF's daughters, CF and RP, and a solicitor representing the wife attended in person.
17 The applicant informed the Tribunal that she and her mother, KF's wife, had had a disagreement which had led to her mother accusing her of stealing from her and KF. This had resulted in the applicant being denied the right to visit KF in residential care. Further, the applicant said that she had not been told when KF was moved from his previous accommodation to the current nursing home where he now resides.
18 The applicant expressed some sadness about the loss of her previously close relationship with KF. She said that KF had never been close to his own two daughters, but had a close supportive relationship with her to the point that she was a joint donee of the enduring power of attorney and her husband was executor of KF's will which he held in his care.
19 The allegation that KF did not have a close relationship with his daughters was contested, particularly by the elder daughter who described a close supportive relationship with her father from childhood. Although living in the country, she continues to visit her father on a regular basis.
20 The applicant said that because of her mother's resistance to her involvement in the financial affairs of KF, the enduring power of attorney executed by KF in September 2001 was not working. The applicant alleged that the wife was using KF's money for her own benefit rather than that of her husband.
21 The wife and her solicitor explained that in 2001, when her husband became ill, the bank had authorised her to operate her husband's account. Into this account is paid her husband's pension of approximately $716 a
(Page 8)
- fortnight made up of a disability pension, a service pension and a pharmacy allowance. The nursing home fees of approximately $400 per fortnight are direct debited from this account. In addition, the wife uses the account to pay other incidental costs for her husband. At the time of the hearing the account had a credit balance of approximately $2000.
22 The wife explained that she has her own account with a different bank from that of her husband. She said that the rent for the home was direct debited from her account but other expenses, such as telephone and utilities, were sometimes paid out of her husband's account when she didn't "have enough" in her account to meet these costs. She also uses money from his account to pay the costs associated with visiting her husband as she doesn't drive and either pays a friend to drive her or takes a taxi.
23 The solicitor representing the wife said that the wife needed to use money from KF's account to pay some of the household expenses because they are the same now as when the couple lived together on joint pensions. He explained that it is impossible for the wife to manage all the household expenses on her income alone which is significantly less, at $430 a fortnight, than when it was combined with her husband's and was in the order of $1000 a fortnight.
24 In further discussion about the wife's access to, and use of KF's bank account, particularly in respect of regular large cash withdrawals over an extended period, it transpired that the applicant and her husband had advised the wife to withdraw anything over $2000 from KF's account to avoid a reduction in his pension. On their advice, this money was handed in cash to the applicant and her husband to hold for the wife until she wished to use it.
25 The wife continued to draw large, cash sums of money in the order of $1000 a time from KF's account after she ceased her involvement with the applicant and her husband. She was unable to explain what the several thousand dollars had been used for, other than a $1000 wedding present for the applicant's daughter, $1000 lent to her grandson, the purchase of a heater for KF's room and possibly a trip for herself. The wife explained to the Tribunal that she had used money from KF's account because she thought of it as hers.
26 There was lengthy discussion about who was willing and suitable to be appointed administrator. It was agreed by most parties that the wife would find the task of administrator too onerous if appointed alone and
(Page 9)
- there was also the concern that she had been imprudent in her management of her husband's money in the past. The applicant and her husband said that they did not think the wife was a suitable administrator but thought KF's daughters, RP and CE, would be suitable to jointly take on the role. All parties agreed that if an appointment was to be made they would prefer a family member rather than the appointment of an independent administrator.
27 The hearing was adjourned for a short period for the two daughters to consider whether they were willing to nominate as administrators. After the brief adjournment the daughters agreed that they would jointly take on the role of administrator of the estate of their father.
Findings and Reasons
Capacity
28 It was clear from the evidence of the applicant, the medical evidence and information provided at the hearing that KF is not capable of making reasonable decisions in respect of, or managing any aspect of his financial affairs. He is, and has been for some time, dependent on others, for these matters. The Tribunal is satisfied that KF is a person for whom an order can be made.
Need
29 As set out in the legislation, the appointment of an administrator requires the Tribunal to find there is a need for an order and that the needs of the person cannot be met by any means less restrictive of the person’s freedom of decision and action.
30 In this case KF is dependent on others for the management of his financial affairs that have been informally managed by his wife for some years. Unfortunately, the enduring power of attorney executed some years ago by KF is not workable.
31 The Tribunal finds that there is an ongoing need for an administrator to oversee and manage the day-to-day finances of KF
Wishes of the represented person
32 The Tribunal is required as far as possible to take into account the wishes of the person whom the application concerns. In this case the Tribunal had reference to KF's will and the enduring power of attorney in which he nominated the applicant and his wife as donees. The Tribunal accepts that the enduring power of attorney was not working but finds that
(Page 10)
- it is an indicator of the trust KF placed in the applicant and his wife to make decisions on his behalf in respect of his estate.
33 It was agreed in the hearing that the wife, because of her age and her history of imprudent financial management, was unable to continue alone to manage KF's estate. She agreed that if she was not able to manage this task, KF's two daughters were the most suitable to do so. The applicant agreed that if family members were to be appointed the most suitable appointment would be the two daughters.
34 The Tribunal accepts that it would be the wish of KF that his wife of 25 years continues to be partially financially supported by him. The Tribunal finds that it is difficult, if not impossible, for the wife to manage all the household bills on her income alone. Many of the household bills are the same as when KF was sharing the house with her. The Tribunal is satisfied that it is reasonable and desirable that monies from the estate of KF continue to be used to pay some of these household expenses.
Best interests of the represented person
35 The Tribunal finds that it is in the best interests of KF to have a member of his family appointed to manage his estate. The Tribunal finds that it is not appropriate to appoint the wife, because of her age and the onerous nature of the task.
36 The Tribunal accepts that, because of the conflict that has arisen between the wife and the applicant, a joint appointment of the wife and the applicant is unworkable. This leaves the two daughters who are suitable, have a good working relationship with the wife, are acceptable to the applicant, and in the opinion of the Tribunal will act, as outlined in s 70 of the Act, in their father's best interests.
Decision
37 The Tribunal considered all the evidence available prior to, and at the hearing, and was satisfied that KF is a person for whom orders could be made. Further, the Tribunal was satisfied that it is in KF's best interests, that an administration order be made.
Orders
38 The Tribunal made the following orders:
(Page 11)
- 1) The two daughters be appointed joint plenary administrators of the represented person's estate with all the power and duties conferred by the Act.
2) The enduring power of attorney dated 10 September 2001 by which the represented person appointed CS and RF to be his attorneys, be revoked.
3) The administrator is allowed to apply or expend moneys of the represented person, whether income or capital, for the maintenance, necessaries, comforts and benefits of the represented person or the spouse of the represented person, in such manner and to such extent as the administrators, having regard to the circumstances and the value of the estate of that person, consider proper and reasonable.
4) This order is to be reviewed by 20 January 2011.
- I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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