KK
[2021] WASAT 85
•26 FEBRUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: KK [2021] WASAT 85
MEMBER: MS F CHILD, MEMBER
HEARD: 26 FEBRUARY 2021
DELIVERED : 26 FEBRUARY 2021
PUBLISHED : 14 JUNE 2021
FILE NO/S: GAA 788 of 2021
KK
Represented person
Catchwords:
Guardianship and administration - Application for appointment of guardian and administrator - Represented person with established diagnosis of dementia - Recently widowed - Treatment decisions made less restrictively - No other demonstrated need for guardian - Need for administrator - Complex estate intertwined with daughter's financial interests - Conflict between adult children of represented person regarding possible disposal of assets - Proposal for appointment of Public Trustee - Fees of Public Trustee considered - Less restrictive appointment of suitable family member named as executor under will of represented person accepted as expression of her wishes - Order made appointing family member excluding power of sale of real property
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 41, s 43(1)(b)(c), s 44, s 64(1), s 68, s 70, s 110ZD, s 110ZD(1), s 110ZD(4)
Trustee Companies Act 1987 (WA)
Result:
Private administrator appointed
Category: B
Representation:
Counsel:
| Represented person | : | N/A |
Solicitors:
| Represented person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These are the reasons of the Tribunal for the decisions made on 26 February 2021, in respect of applications for the appointment of a guardian for and an administrator of the estate of KK brought under the Guardianship and Administration Act 1990 (WA) (GA Act).
Background
KK is an elderly woman with an established diagnosis of dementia. She has three children; daughters S and P and son C. She has recently been widowed.
KK's circumstances first came to the attention of the Tribunal in December 2020 when an application was made by a hospital treating team (hospital applicants) seeking orders for KK's spouse, SK, who was at that time a patient in the hospital. Following the hearing of that application, orders were made appointing the Public Advocate as guardian for SK and the Public Trustee as administrator of his estate due to the significant conflict between P and S and C regarding the management of their parents' affairs.
Sadly, SK died on 5 January 2021.
The applications
Applications in respect of KK were made to the Tribunal on 18 December 2020 by both S and C (the applicants). Their applications each proposed the appointment of S as the administrator of KK's estate and C as her guardian.
The applications were heard on 26 February 2021. P also made an application filed on 24 February 2021 initially proposing her appointment but later proposing the appointment of the Public Trustee as administrator of KK's estate. (The required period of the notice of the hearing of P's application to KK had not been met at the time of the hearing on 26 February 2021 so the Tribunal did not hear P's application on that day.[1])
[1] Section 41 of the GA Act.
All parties were advised that there is no need for a person who proposes his or her appointment as either an administrator or guardian for a proposed represented person to make a further application when such an application is already before the Tribunal. The Tribunal is not restricted in the appointment to those persons who have made an application. A proposal for appointment as a guardian or administrator may be made in a written submission prior to or orally in a hearing when any proposed appointee would be asked to consent to an appointment.
P was advised that her proposals for orders to be made would be considered by the Tribunal in the course of the hearing and she could, if she wished, withdraw her application. She declined to do so and her application was listed for hearing.
Legislation - principles to be observed
In all proceedings in the Tribunal brought under the the GA Act, the Tribunal must observe principles set out in s 4 of the GA Act which provide that the primary concern of the Tribunal is the best interests of KK.
The principles also provide that KK is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.
The principles say that orders should not be made unless they are needed; if the needs of KK can be met by less restrictive means then orders should not be made for her. If an order is made it should be in the least restrictive terms possible.
Finally, the principles require that in considering any matter relating to KK, the Tribunal should seek to ascertain her wishes as expressed at the time or gathered from her previous actions.
To appoint an administrator of an estate the Tribunal must be satisfied that the person concerned is unable by reason of a mental disability to make reasonable judgments about all or any part of her estate and she is in need of an administrator of her estate.[2] Mental disability is defined in s 3 of the GA Act to include dementia.
[2] Section 64(1) of the GA Act.
To appoint a guardian the Tribunal must be satisfied that the person concerned is incapable of looking after her own health and safety, unable to make reasonable judgments about her person, or is in need of oversight care or control in the interests of her own health and safety and is in need of a guardian.[3]
[3] Section 43(1)(b)(c) of the GA Act.
If satisfied that the person concerned is a person for whom orders can and should be made, the Tribunal must then consider the scope of any orders to be made and who should be appointed. A plenary guardianship order may not be made unless the Tribunal is not satisfied that a limited order will meet the needs of the person concerned.
The Tribunal may not appoint the Public Advocate as guardian unless satisfied that there is no one else suitable or willing to be appointed.[4]
Evidence and material before the Tribunal
[4] Section 44(5) of the GA Act.
The written material before the Tribunal includes the applications, written submissions from the parties, medical reports and correspondence.
The hearing on 26 February 2021 was attended by the applicants, P and their respective legal representatives, the soninlaw of KK, PG (S's spouse), KK's granddaughter and an investigator from the Office of the Public Advocate (Public Advocate). KK did not attend the hearing.
Is KK a person for whom orders may be made?
Dr F, a general practitioner in a report dated 20 January 2021 states he has known KK for 30 years and that she was diagnosed with dementia in May 2018. Her condition is described as a progressive one. Dr F gives the opinion that KK is incapable in all spheres of decisionmaking in respect of her personal and financial affairs, is incapable of giving an enduring power of attorney or guardianship, or of making an advanced health directive. He reports she has difficulty communicating due to profound deafness.
Dr K, a geriatrician in a report dated 5 January 2021 states he has known KK for four years, that she has dementia probably of the Alzheimer's type since he met her in 2016. Her condition is described as a progressive one. In Dr K's opinion, KK is incapable in all spheres of decisionmaking in respect of her personal and financial affairs, and is incapable of giving an enduring power of attorney or guardianship.
In a letter from Dr K to Dr F dated 16 December 2020, Dr K says that he had been asked to do a competency assessment and states that:
[KK] has had profound dementia since I first met her as the wife of [SK] … involved in her medical care since May 2018 and her dementia has been of a severity that precludes her from making any decisions about financial matters or lifestyle issues[.]
None of the parties takes issue with or challenges the medical opinion that KK has dementia and is unable to manage her own affairs.
I am satisfied that KK is unable by reason of her dementia of making reasonable judgments in respect of her estate and am also satisfied that she is incapable of looking after her own health and safety, unable to make reasonable judgments about her person and she is in need of oversight and care in the interests of her own health and safety. KK is therefore a person for whom both guardianship and administration orders may be made.
Is there a need for orders to be made for KK?
Guardianship
It is not in dispute that KK has an established dementia diagnosis and there is no ambiguity that she is unable to make medical and care decisions for herself. This was conceded by all the parties. This is in contrast to KK's late husband's circumstances where there was some dispute as to whether he retained capacity to make his own decisions about his personal and financial affairs.
In support of his appointment as guardian it is submitted that C, the son of KK, who is a medical doctor, has been the family member liaising with medical and other health professionals regarding the health care needs of both parents for some years. C proposes his appointment as guardian to provide for some authority to make such decisions for KK, in a sense to put the existing arrangement on a formal footing.[5] Concern is raised by Counsel for the applicants about the conflict which arose between KK's children when SK was hospitalised and P is said to have objected to certain things which put the hospital in an 'impossible position' which is why the application in respect of SK was brought to the Tribunal.
[5] ts 34, 26 February 2021.
Counsel for P argues there is no need for a guardian and that the role of C to liaise with doctors on behalf of KK could continue.[6]
[6] ts 21, 26 February 2021.
In terms of treatment decisionmaking for KK, it is accepted that C has been involved for some years as evidenced by the medical correspondence and this role appears to be supported by both of his sisters. Although P is said to have intervened in a medical appointment arranged for KK, it is understood this was to prevent a capacity assessment and not in respect of any proposed treatment.[7] In contrast with the circumstances of SK, there is no dispute that KK lacks capacity and requires a substitute decisionmaker.
[7] ts 22, 26 February 2021.
As S is the eldest of KK's three children and as KK is a widow, S is identified as the person responsible as the 'nearest relative'[8] of KK for the purposes of s 110ZD of the GA Act.[9]
[8] Section 3 of the GA Act defines nearest relative as the elder of two or more relatives. Section 110ZD(4) sets out the order of priority of nearest relatives.
[9] Section 110ZD(4) of the GA Act.
Section 110ZD(1) provides:
If a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient, the person responsible for the patient … may make a treatment decision in respect of the treatment proposed.
Should a formal consent be required for some medical intervention for KK such as a general anaesthetic then a consent for such treatment of KK could be obtained from S under these provisions. It appears that other medical treatment decisions have been made for KK to date without controversy.
C and S support each other's role in the care of their mother. I consider it would be likely that in the event that a formal consent to treatment was required from S for treatment of KK, that C would play a significant role in any decisions to be made. In these circumstances, I consider and I find that there is a workable less restrictive alternative to the appointment of a guardian for KK for medical treatment.
Turning to other areas of personal decisionmaking; although it was argued that the accommodation of KK is unlikely to be suitable in the longer term (because she will likely need a higher level of care in the future) there is no immediate need identified for her to move from the retirement village in which she is presently living. KK is reported to be happy there and family members are supportive of her remaining there for as long as possible. P says that she stays with KK and that both S and C stay two nights a week with KK.
S identifies that additional supports with personal care and showering might be necessary due to KK being less steady on her feet but it appears that S could and will make this arrangement when she considers it is needed.
KK can no longer prepare meals for herself but P says that while their father was alive S put in place a roster for the provision of meals. S says it is also possible to get meals in for KK.
Counsel for P argues that there is no need for a guardian to be appointed as all three children will 'do the right thing' by their mother.[10]
[10] ts 21, 26 February 2021.
At the present time I consider that no other personal or care needs of KK have been identified which cannot be met by less restrictive means.
Counsel for P argues that if there is to be a change in accommodation or care for KK this would then give rise to consideration as to how the cost of that care is to be met and what assets should be sold to fund a higher level of care. It is argued that C and S have an interest in preserving the residential property of KK since they are the beneficiaries of this property under her will, and P is to receive KK's interests in commercial properties jointly owned by her with P and it is in P's interests that these properties not be sold.
It is argued that this represents a conflict of interest which would disentitle any of the children of KK from appointment as her guardian to decide her accommodation because all would have potential conflicts and could not be appointed because of the operation of s 44(1)(b) of the GA Act.
At the present time there are no identified needs of KK which cannot be met less restrictively. Since there is no need for the appointment of a guardian for KK at the present time the issue of suitability does not need to be decided.
Most residents enter residential aged care without the appointment of a guardian if there is no dissent to the proposed move. Frequently such decisions are made between family members working cooperatively with hospital treating teams or community based aged care services to identify appropriate accommodation and care. An appointed administrator can complete the assets information required by Centrelink for the assessment of the costs of care and can on behalf of the represented person execute a contract with a residential aged care provider.
In the future if KK requires a change in accommodation and her children cannot agree, then there may be a need for the appointment of a guardian to make that decision about the need for or the location of that care. Then the question of the suitability of any proposed appointee will need to be determined according to the criteria set out in s 44 of the GA Act, noting that s 44(3) of the GA Act provides that a proposed appointee is not taken to be in a position of conflict by virtue only that the proposed appointee is a relative of the represented person.
Administration
It is likely the case that KK has not managed her financial affairs for some years. Her marriage was described as a traditional one where her late husband managed their finances and she supported him and kept the home and family. As noted KK has had a dementia diagnosis for some years.
Until recently it is said that the children of KK were able to work cooperatively in the management of her daytoday finances when they would meet with her, discuss her accounts, and cheques would be written out by S and KK would then sign them.
KK's estate is reported to be a residential property formerly owned jointly with her late husband, which is rented, and interests in rented commercial properties held jointly with P. There are said to be mortgages on all the properties. KK has a personal income of approximately $40,000 per annum being a proportion of her late husband's defined benefit pension.
Counsel for the applicants says that KK's estate has debts in the order of $1,000,000; that KK previously had no debt and the family home owned by their parents was unencumbered but is now mortgaged. They say that the debt has been incurred because of the actions of P and her involvement in their parent's affairs.
The applicants say they only learned of the debt position of their parents when exploring options for accommodation for both parents when the application was made to the Tribunal in respect of SK. They say there is a need to establish the extent of KK's estate: her assets and liabilities, her income, what is required to service debt, what is required to meet her current needs, and any future accommodation costs. Counsel for P concedes there is a need to ascertain the extent of KK's estate.[11]
[11] ts 23, 26 February 2021.
The applicants say that KK is in need of an administrator of her estate to address the issues identified. P agrees but opposes S's appointment and proposes the appointment of the Public Trustee.
KK does have an estate to be managed and lacks capacity. She does not have an enduring power of attorney and I find that there are no less restrictive means by which her estate can now be managed and she is in need of an administrator of her estate.
Who should be appointed as administrator?
The applicants propose that S be appointed as the administrator of KK's estate because she has been assisting KK informally for some time.
P argues that S (and all the children of KK) have a conflict and proposes the Public Trustee be appointed.
The Public Advocate's representative submits that PG, KK's soninlaw who is the joint executor (together with P) of the will of the late SK and is also named in KK's will as a joint executor is appropriate for appointment as the administrator of KK's estate. PG is described as a trusted person within the family, is not a beneficiary under SK's will, has sufficient financial knowledge to deal with the estate and is working together with and is already in communication with P in respect of the deceased estate of SK.
The Public Advocate submits that due to the nature of KK's estate the appointment of the Public Trustee as administrator would likely involve significant fees, in particular due to the need to manage the commercial rental properties in which she has an interest.
PG consents to his appointment as a sole administrator.
P, through her counsel agreed there was 'historical trust'[12] in PG but opposes his appointment on the basis that there is now no trust between P and PG. It is also said that as the spouse of S, PG is aligned with the applicants. Counsel suggests that the Public Trustee's fees might be reduced as the commercial properties have a managing agent.
[12] ts 30, 26 February 2021.
There is no estimate of the likely fees to be charged to KK based on the Public Trustee's Scale of Fees[13] before the Tribunal. The calculation of the Public Trustee's fees is based on a formula in the Scale and takes into account KK's circumstances for the calculation of the personal financial administration fee, the value of her estate for the calculation of the assets management fee and the real property fee. Despite no estimate being provided by the parties, I accept the submission of the Public Advocate based on the investigator's experience with these matters of the fees likely to be charged if the Public Trustee was appointed based on what is known of the nature and extent of KK's estate.
[13] Western Australia, Government Gazette No 102 (19 June 2020).
When determining the appointment of an administrator the Tribunal must have regard to s 68 of the GA Act which requires the Tribunal to be satisfied that a proposed appointee has consented to act, will act in the best interests of the represented person and is otherwise suitable to act.
Section 68(2) of the GA Act[14] sets out a statutory preference for the appointment of an individual over a corporate trustee that is a trustee company under the Trustee Companies Act 1987 (WA) (Trustee Companies Act).[15] The Public Trustee is an individual[16] and a corporate trustee as defined in s 3 the GA Act but is not a trustee company under the Trustee Companies Act.
[14] Section 68(2) of the GA Act.
[15] An individual who would otherwise be appointed may request the appointment of a corporate trustee.
[16] The Public Trustee is trustee sole
Unlike the appointment of the Public Advocate as guardian[17] there is no requirement in the GA Act that the Tribunal be satisfied that there is no one else suitable or willing before it appoints the Public Trustee as administrator of an estate. Therefore it is always open for the Tribunal to appoint the Public Trustee as the administrator of an estate when the circumstances of a represented person requires it. However, when determining the appointment of an administrator, the Tribunal must observe the principles in s 4 of the GA Act in ascertaining the wishes of the represented person and by making the least restrictive order possible together with the criteria set out in s 68 of the GA Act.
[17] Section 44(5) of the GA Act.
Section 68(3) of the GA Act directs the Tribunal to consider the suitability of a proposed appointee in terms of the compatibility of the proposed appointee with the represented person and with any appointed guardian[18], the wishes of the represented person[19] and whether the appointee will be able to perform the functions vested in him or her.[20]
KK's wishes
[18] Section 68(3)(a) of the GA Act.
[19] Section 68(3)(b) of the GA Act.
[20] Section 68(3)(c) of the GA Act.
KK did not attend the hearing and there is no direct evidence of her wishes as to the management of her estate. In the past it is accepted that her daughter S assisted her and her daughter P had significant involvement in the financial affairs of both parents.
As noted P and PG are both appointed the executors under the wills of both KK and of her late husband, SK. The choice of an executor is an indication of trust placed by the testatrix in that person.
It is conceded, P is in a position of conflict as the joint owner of commercial properties with KK. P cannot be appointed as the administrator of KK's estate as she cannot be put in a position where she could prefer her interests to those of KK in the holding, the management or the timing of the disposal of the properties.
PG is the other executor appointed under under KK's will and it can be inferred from that appointment she placed trust in him. Her appointment of executors is the only evidence before the Tribunal of KK's wishes regarding such matters as expressed by her previous actions.
As to the other suitability criteria in s 68 of the GA Act it is submitted by the Public Advocate and I accept that PG has the necessary financial management skills and is therefore able to perform the functions of an administrator of KK's estate. Although KK does not have an appointed guardian, PG is the spouse of S and it can be assumed is compatible with her and will work with her as the administrator to support decisions she may make as the informal decisionmaker for treatment of KK.
I find that PG is suitable for appointment as the administrator of KK's estate. His appointment is a less restrictive appointment than the appointment of the Public Trustee and is in accordance with KK's previously expressed wishes through her appointment of him as an executor of her will. PG's appointment will be without the fees that the Public Trustee would be entitled to charge and this is a relevant consideration as KK's income is a modest one.
Representations were made on P's behalf regarding the rental income from the property needing to service the mortgages on the properties. It is unclear what income from the rental properties is received by KK after payment of the mortgages and other property costs. All parties agree that KK's position needs to be clarified. Additionally although it is said that other than the jointly owned residential property, which passed to KK as a joint owner, that SK did not leave an estate. However when the situation is clearer there may be a need for an administrator to give a formal discharge to the executors of the deceased estate of SK. I am satisfied PG will be able to play this role.
The Public Advocate supports the proposal that initially at least, PG be appointed as the limited administrator of KK's estate without the power of sale of real property. This will empower him to make the necessary inquiries on KK's behalf to ascertain the extent of her estate and to secure the estate. The exclusion of the power of sale gives reassurance to P that there will not be an immediate sale of the commercial properties without a closer examination of the extent of the estate and the consideration of the needs of KK.
An administrator is required under the GA Act to act in the best interests of KK and is bound to put KK's interests above all others.[21]
[21] Section 70 of the GA Act.
Having determined the extent of the estate and the present and future needs of KK, there may be a need dispose of assets to reduce KK's liabilities or to provide increased resources for her needs and the appointed administrator will then need the function to sell the property of KK. Any administration order can be amended on review if the circumstances of KK require it.
For these reasons I make the following orders.
Orders
The Tribunal declares that the represented person, KK is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
The Tribunal orders:
Administration
1.PG is appointed limited administrator of the represented person's estate with all the powers of a plenary administrator of the represented person's estate save the power of sale of real property of the represented person.
2.The administration order is to be reviewed by 26 August 2022.
Guardianship
3.The guardianship applications are dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
14 JUNE 2021
0
2