KM and MM
[2006] WASAT 89
•3 APRIL 2006
KM and MM [2006] WASAT 89
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 89 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2222/2005 | 30 JANUARY 2006 1 MARCH 2006 | |
| Coram: | MS D DEAN (MEMBER) MR E LEIPOLDT (SENIOR SESSIONAL MEMBER) MS C HILL (SENIOR SESSIONAL MEMBER) | 3/04/06 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate appointed limited guardian for six months Daughter and represented person's brotherinlaw appointed plenary administrators for five years | ||
| B | |||
| PDF Version |
| Parties: | KM MM |
Catchwords: | Guardianship and administration Application for appointment of a guardian and an administrator Capacity Guardianship decisions required with respect to accommodation Public Advocate appointed limited guardian for six months Daughter and brotherinlaw appointed plenary administrators Administrators authorised to exercise powers previously vested in the represented person in his capacity as guardian of the Family Trust |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 43(1), s 44, s 64(1), s 70(1)(2) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KM and MM [2006] WASAT 89 MEMBER : MS D DEAN (MEMBER)
- MR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
MS C HILL (SENIOR SESSIONAL MEMBER)
- 1 MARCH 2006
- Applicant
AND
MM
Represented person
Catchwords:
Guardianship and administration - Application for appointment of a guardian and an administrator - Capacity - Guardianship decisions required with respect to accommodation - Public Advocate appointed limited guardian for six months - Daughter and brotherinlaw appointed plenary administrators - Administrators authorised to exercise powers previously vested in the represented person in his capacity as guardian of the Family Trust
(Page 2)
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43(1), s 44, s 64(1), s 70(1)(2)
Result:
Public Advocate appointed limited guardian for six months
Daughter and represented person's brotherinlaw appointed plenary administrators for five years
Category: B
Representation:
Counsel:
Applicant : Ms June Kenny
Represented person : Ms Helen Drury
Solicitors:
Applicant : Dwyer Durack
Represented person : Irdi Legal
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 a guardian and an administrator for her father, MM.
2 MM had a significant Estate including a family business and a Family Trust of which he was guardian and managing director. The applicant had been managing the family business and Family Trust since the represented person became too ill to do so for himself. The represented person had been diagnosed with end stage renal failure and short-term memory loss making it impossible for him to manage his large and complex Estate.
3 MM had been living with, and in the care of, a long-term female friend prior to moving into nursing home care. He made it clear to the State Administrative Tribunal (Tribunal) that he was most unhappy with the nursing home where he was residing at the time of the hearing. He wanted to move back to live with his friend until a bed in the nursing home of his choice became available. Because of the deterioration of his medical condition and the complexity of his care needs it was unlikely that he would be able to move back with his friend in the short-term. There was significant conflict between the family and the friend making it impossible for them to make decisions about appropriate accommodation for him.
4 The Tribunal appointed the Public Advocate limited guardian with the functions of making decisions about where and with whom MM was to live and with whom he was to have contact.
5 MM made it clear to the Tribunal that if an administrator was to be appointed, he wanted it to be someone within his family. The Tribunal took into account the fact that the applicant had been informally managing MM's Estate since his illness precluded him from doing so himself and appointed the brother-in-law and the applicant plenary administrators of the Estate.
Background
6 These written reasons relate to two applications, one for guardianship and one for administration. The application for guardianship was heard, and an order made, on 30 January 2006. The hearing of the application for administration was adjourned until 1 March 2006 when an order appointing an administrator was made.
(Page 4)
7 MM is a divorced father of an adult son and a daughter. On 2 November 2005, the daughter, KM, filed applications with the State Administrative Tribunal (Tribunal) for the appointment of a guardian and an administrator for MM.
8 In her application, the applicant reported that MM had suffered several cerebrovascular accidents (CVA's) resulting in dementia and short-term memory loss leaving him unable to make reasonable decisions in respect of his lifestyle or his Estate. MM had also been diagnosed with end stage renal failure.
9 The applicant said that she paid all the bills for MM and a friend, GS, advised him financially. MM has a significant and complex Estate with money in several bank accounts and other assets tied up in a Family Trust.
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 GA 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 43(1) states:
"(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;
- and
(c) is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint -
(d) a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e) persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made."
13 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."
14 Section 70(1) and (2) 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.
(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."
Information before the Tribunal
Medical and other reports provided prior to the first hearing
15 The following written material was received by the Tribunal prior to the first hearing:
• A report from the treating psychiatrist Dr B who stated that MM has a diagnosis of cerebrovascular dementia which has been confirmed by CT scan. This disability is "static and cannot be treated". Dr B assessed MM as incapable of making reasonable decisions in respect of his
- personal health care, living situation, financial affairs and incapable of executing an enduring power of attorney.
- • A report from Dr H from the Department of Renal Medicine at the hospital who stated that MM has "end stage renal failure". Dr H reported that he is "unsure" of MM's capacity to make reasonable decisions in respect of his personal health care, living situation or financial affairs and is "unsure" if MM is capable of executing an enduring power of attorney. Dr H referred the Tribunal to the report from Dr B for clarification of the capacity question.
• A report from a social worker from the hospital who reported that MM has a diagnosis of end stage renal failure. MM was previously in the care of CP at her home and also had paid carers attending on a daily basis. The social worker referred to, but did not detail, "conflict and relationship dynamics" which she said would "be outlined in greater detail in the hearing". The social worker reported that MM's "mental state fluctuated greatly" "from clear to very confused" resulting in his ability to communicate ranging from "able to converse sensibly to not able to converse at all". The social worker referred the Tribunal to Dr B's report for further clarification of the capacity question. The social worker stated that MM was urgently in need of a guardian and an administrator to "protect this vulnerable man from abuse".
• A letter from a General Practitioner (GP) in which he stated that it was in MM's best interests not to attend the hearing "due to his confusion and aggression". After visiting and speaking with MM, the Public Advocate provided the Tribunal with a written response to the GP's letter. The Public Advocate informed the Tribunal in writing that after meeting with MM and finding him "oriented, lucid, and able to converse appropriately" she believed that it was in his best interests that he attend the hearing.
• A letter from the Public Advocate reporting on her conversation with MM's treating doctor from the Renal
- Unit at the hospital who stated that in his opinion MM had the capacity to make decisions about where and with whom he should live but he was uncertain about MM's capacity to manage his financial affairs. The doctor stated that he believed that from a medical perspective, MM's friend and previous carer, CP, was "more than capable of meeting [MM's] care needs".
- • A letter and accompanying material in relation to the drug Sodium Thiosulfate from MM's friend and carer CP. In the letter, CP stated that she believed that the drug may have confused the results of competency assessments of MM in the past. The Public Advocate provided the Tribunal with a brief written report of her discussion with Dr B in relation to CP's concerns. Dr B informed the Public Advocate that he had conducted his assessment over several days and stood by his assessment, however, he was not averse to parties seeking a second opinion. The Public Advocate provided the Tribunal with a list of the current medications being taken by MM.
• A copy of the "Special Purpose Financial Report for the Year ended 30 June 2004" in respect of the Family Trust.
• A copy of a letter from WN, brother-in-law of MM, to OPA, outlining some family history and expressing concern with regard to MM's son, AM and his ability to manage his father's finances.
• A report from the Public Advocate of her investigation into the applications. The Public Advocate spoke with various parties including MM. She assessed MM as a person for whom an order could be made. MM informed her that he wished to leave the nursing home where he was "deeply unhappy" and return to live with CP until he could secure a place at the nursing home of his choice. The applicant did not support this proposal. MM informed the Public Advocate that if an administrator was to be appointed he favoured his daughter, the applicant, to take on this role.
Additional reports provided prior to the second hearing
16 The Public Advocate provided the Tribunal with copies of:
(Page 10)
- • A letter from MM's solicitor addressed to the Public Advocate responding to a series of questions posed by the Public Advocate in relation to the execution of an enduring power of attorney, assessment of capacity, the Family Trust and other companies owned by MM and the management of these.
• A letter from the solicitor representing MM addressed to the Public Advocate responding to the same series of questions posed by the Public Advocate.
• MM's 2003/2004 tax return.
First hearing - guardianship
17 This hearing was attended by the applicant, KM, her father MM, the proposed represented person, a solicitor representing MM, MM's son AM, a social worker from the Hospital, a solicitor assisting the applicant, MM's sister IN and her husband WN, The Public Advocate, CP, a friend and previous carer of MM, a solicitor from the office of the Public Trustee, Mr Hughes from the office of the Public Trustee, an observer from the Office of the Public Advocate, JD, sister-in-law of MM, CD, brother-in-law of MM and GS, friend of MM.
18 In this case there are two applications to be heard, one for guardianship and one for administration. The Tribunal decided to hear the application for guardianship first. As it transpired this took several hours and the hearing of the application for administration was adjourned to a later date.
19 In respect of her application for guardianship, the applicant informed the Tribunal that she continued to be concerned about her father's ability to manage for himself because of his renal failure, his diagnosed dementia and short-term memory loss. She said that she believes that it is in her father's best interests to be cared for in a nursing home environment rather than in the home of his friend, CP, where he had resided, with additional visiting carers, prior to entering hospital. He was transferred from the hospital to the nursing home where he was residing at the time of the hearing.
20 The Tribunal was informed by the hospital social worker that MM requires daily peritoneal dialysis which can only be provided by highly skilled and trained persons. There was considerable discussion at the hearing around the need for carers of MM to have up to date training in
(Page 11)
- peritoneal dialysis and how this would impact on any plans to change accommodation.
21 During the hearing MM made it very clear to the Tribunal that he is most unhappy with his current residential situation and that he wants to return to live with his friend, CP, until a move to a nursing home can be arranged. The Tribunal was informed by the hospital social worker that the planned move to the other nursing home can only occur once staff there have been trained in peritoneal dialysis. This training has commenced but will not be completed until MM moves there. Once a bed is available it should take approximately one week to ensure all is in readiness for him. Unfortunately no one can predict when a bed will become available. A bed which was available recently was considered by staff not to be suitable for MM as it was a shared room with a man more than 30 years his senior.
22 MM and his children expressed their satisfaction with the other nursing home as a suitable accommodation facility for MM. The only issue appears to be the time it may take for a suitable bed to become available. In the meantime MM continues to reside in a nursing home which he finds unsatisfactory and is denied the opportunity to move back with his friend and carer, CP.
23 Previously CP was trained in peritoneal dialysis but it is now several months since she used her skills in this area. For MM to move back to live with her, even for a short while, she would need to be retrained in peritoneal dialysis. The social worker informed the hearing that the peritoneal dialysis unit would be unwilling to train CP or the carers who would also be involved in MM's care, for a short-term residence as this would tie up their valuable and limited staff resources. It was generally agreed at the hearing that a move back to live with CP would only be a short-term solution for MM while he waited for a bed at a nursing home which he and his children have selected as being appropriate for him.
24 In discussions about a short-term move back to the home of CP, a variety of opinions were expressed about the viability or suitability of such a move. The Tribunal was informed that MM's move from CP's care into hospital care had been precipitated by both a deterioration in his health and "burnout" on the part of CP in relation to the demands the caring role placed on her. The social worker informed the Tribunal that MM had been "very distressed" about leaving CP's care and there were concerns that if he returned short-term to her care he would be very reluctant and distressed about leaving again.
(Page 12)
25 There was discussion about the fact that hospital staff had been under the misapprehension that CP is a renal nurse, when in fact she is a patient care assistant in the dialysis unit of a suburban hospital. The social worker informed the Tribunal that this had influenced the hospital in its original decision to train CP in peritoneal dialysis. CP explained to the Tribunal that it was never her intention to have hospital staff believe she was a nurse and if they did so it was not because she had deliberately misrepresented herself to them. CP explained to the Tribunal that she and MM "have a rapport" so that he would take his medications for her when he might not take them for medical staff. She said that she would get the doctors to print out a description of the different medications and would use this to inform MM and herself about the medications.
26 MM's solicitor informed the Tribunal that she accepted that MM needed a substitute decision-maker in respect of some decisions but stated that he is quite able to make other decisions for himself and to make those decisions known to others.
27 The applicant explained to the Tribunal how she and her brother, in consultation with MM, had made the decision to move him from hospital to the current nursing home while waiting for a bed in a more suitable facility. The current nursing home had staff trained in peritoneal dialysis making it possible for MM to move from long-term hospital care to what was believed would be a short stay at the current nursing home. Unfortunately the short stay had dragged on because of issues in relation to MM's health; the time it took for the family to locate a suitable nursing home; the time involved in the peritoneal dialysis unit checking out the suitability of the nursing home for a resident with MM's particular needs and for the unit to arrange for training for staff at the nursing home. In addition, the conflict between the family and CP led to confusion on the part of the peritoneal dialysis unit as to who had the authority to deal with them. There were now further delays in waiting for a suitable bed to become available.
28 The Public Advocate expressed some concerns about the fact that only three or four months had elapsed since CP had been caring for MM in her home and giving him dialysis. She was concerned that there had been no clear time frame given by the peritoneal dialysis unit as to how long such training and experience remained current before it required updating. She also asked whether paid carers trained in peritoneal dialysis could be an option in facilitating a short-term return for MM to CP's care. The hospital social worker explained that any paid carers would have to be trained by the peritoneal dialysis unit but she could not answer the
(Page 13)
- question as to time frames and training updates. The Tribunal attempted, during the hearing, to contact by telephone the person in charge of the unit to discuss the training issue with her but she was unavailable.
29 In addition to the need for specialist training for carers, the hospital social worker pointed out that because of MM's deterioration in health and change in care needs since leaving the care of CP, an occupational therapy assessment would need to be done of the home and possible modifications made before MM could move in. All of these requirements presented obstacles to MM moving back with CP for a short period while waiting for a bed to become available.
30 The social worker also stated that while MM was in private care he kept "bouncing back" into hospital but since he had been in the nursing home there had been no hospital admissions. It was her view that he received better care there than in a private home.
31 It was clear from the lengthy discussion in the hearing about accommodation options that, without the support of the peritoneal dialysis unit, a short-term move back to CP's home was not a viable option for MM. The social worker informed the Tribunal that a move back to CP's home would only be feasible if it was a long-term option. Information from the family indicated that this was not a financially viable option as it would require the hiring of trained carers to provide the level of care MM now required and his Estate could not afford this cost.
32 Another issue raised in the hearing was the fact that MM's friends had not been allowed to take him out of the nursing home on outings. There was considerable discussion about who, if anyone, had given the nursing home instructions preventing MM going on outings with friends. It was during the discussion about this issue that it became apparent that there is a significant level of conflict and disagreement between the family and MM's friends particularly CP, his friend and carer, with whom he had lived prior to admission to hospital.
33 The applicant informed the Tribunal that her reason for making the application for guardianship was the need for some control over CP's access to MM. CP had, allegedly, on occasions influenced MM's decision to stop taking some of his medications and she had been overheard to say things to MM which had caused him to become very angry and abusive toward staff and his family. Further there were concerns about him being taken to the bank to withdraw money from his account and this money was subsequently unaccounted for. The applicant agreed that now that
(Page 14)
- MM was residing in the nursing home, the issue of him discontinuing some of his medications was no longer relevant as he was co-operating with nursing home staff who kept a close eye on his medication regime. The issue would only be of concern again, according to the applicant, if MM returned to live with CP.
34 The Public Advocate summed up the feelings of the hearing in saying that it was in the best interests of MM to move to the other nursing home as soon as a bed became available. The differences of opinions between parties centre around what is to happen in the lead up to that move. MM made it very clear during the hearing that he is very unhappy with his current accommodation but is happy to move to the other nursing home. Unfortunately there is no way of knowing when that move will occur. Meanwhile MM is keen to move back to CP's home and care. The Public Advocate strongly recommended that there was a need for further exploration of the possibility of a short-term move to CP's home while MM waited on a suitable bed becoming available at the other nursing home.
35 Given the need for a referral to an occupational therapist for an assessment of the suitability of CP's home for MM whose health has deteriorated quite significantly since he left her care some months ago, and the fact that the applicant, who is the next of kin and is resistant to the possibility of such a move, may not be willing to make a referral for the assessment, the Public Advocate recommended a short order appointing an independent guardian to explore all the feasible accommodation options, both short and long-term, and to facilitate any move when it occurs.
36 The Tribunal adjourned for a short period and returned with a decision to appoint the Public Advocate for a period of six months with the function of deciding on accommodation, that is, where and with whom MM might live. The Public Advocate requested that a contact function be added to the order. She explained her reasons for the request was her concern that "people have been denied the ability to take [MM] out and there needs to be a clear direction as to who has that authority". The Tribunal accepted this argument and added the contact function to the order giving the authority to decide what contact, if any, MM might have with others.
37 As it was then quite late in the day and MM was clearly unwell and in pain but keen to be present and involved in any discussions about
(Page 15)
- administration of his estate, it was decided to adjourn the hearing of the application for administration to a later date.
38 Because of concerns outlined in the application about the possible inappropriate withdrawal of approximately $7000 from MM's bank account, prior to adjourning, the Tribunal satisfied itself in a brief discussion with the parties present that there was no ongoing risk of this continuing to occur.
Second hearing - administration
39 This hearing was attended briefly by MM and a social worker from the hospital. Due to his frailty and ill health, MM and the social worker left after a short time. Other attendees were the solicitor for the applicant, the applicant, the family accountant, the son of MM, the Public Advocate, the solicitor representing MM, IN and WN, the sister and brother-in-law of MM, JD the sister of MM's deceased wife and her husband CD, GS, friend of MM and CP, friend and ex-carer.
40 Prior to leaving the hearing MM advised the Tribunal that, if an administration order was to be made, he wanted the applicant and his son to be appointed as his administrators because "they are old enough to carry the burden". He said that he would "put [CP] in" to run the Family Trust. At the previous hearing MM had indicated that he wanted the applicant and his brother-in-law to be appointed administrators.
41 All those at the hearing agreed that MM does not have the capacity to make reasonable decisions for himself in respect of his finances. It was further agreed that there was a need for the appointment of an administrator to manage the personal accounts and financial affairs of MM and to exercise his rights as a shareholder in the family company.
42 The decision to be made was what powers an administrator should have and who was suitable and willing to act as administrator.
43 There was lengthy discussion and clarification of the complex Family Trust and the family company which is trustee for the Family Trust. MM is the managing director of the family company and both the children are directors. MM is also the nominated guardian of the family company. The term "guardian" is used here to refer to its use in the company document and not in the sense of a guardian under the GA Act. The consent of the company guardian is required to do certain things including the distribution of income from the company. Even with
(Page 16)
- plenary powers, an appointed administrator would need a direction from the Tribunal to exercise the power of the guardian.
44 The solicitor representing MM informed the Tribunal that she had been instructed by MM that he was keen to ensure that "the trustee can't be varied", "the trust can't be vested" and "that any beneficiary loan accounts…are not diminished in any way" particularly in respect of MM. She believed that it was in the best interests of MM to have an independent party appointed as administrator to ensure that his interests were protected. The solicitor said that she would be happy with the joint appointment of the daughter and the brother-in-law of MM as plenary administrators but with some limitations of their power to protect the integrity of the trustee company.
45 There was some discussion about the effectiveness of a written undertaking from the administrators, to the effect that, if appointed, they would not vary the terms of the trust. The applicant agreed to such an undertaking. This was deemed to be acceptable to other parties, some of whom said they saw no need for such an undertaking as the applicant, with her brother, had been running the company very effectively, and in MM's best interests, for some years since illness made it impossible for him to continue to do so.
46 The son informed the Tribunal that he did not wish to propose himself as administrator but would be quite happy with the appointment of the applicant and the brother-in-law as joint administrators.
47 The Public Advocate advised the Tribunal that the appointment of the applicant and the brother-in-law had been the expressed wish of MM, who was keen for the appointment to remain within the family.
48 The Tribunal adjourned briefly to examine the Trust Deed and to make its decision which was to appoint the applicant and the brother-in-law jointly as plenary administrators. The joint administrators then made an application to the Tribunal for the authorisation to exercise the powers that were previously vested in MM in his capacity as guardian of the trustee company.
Findings and Reasons
Capacity
49 It was clear from the evidence of the applicant, the medical evidence and information provided at the hearing that MM is not capable of making reasonable decisions in respect of some aspects of his lifestyle, most
(Page 17)
- particularly decisions about his accommodation and contact with others. Similarly, in respect of making reasonable decisions and managing any aspect of his financial affairs MM is dependent on others, for these matters and has been for some time. The Tribunal is satisfied that MM is a person for whom orders can be made.
Need and best interests
51 With respect to the application for guardianship, it is clear from both the information provided prior to, and during the hearings, that the conflict and disagreement between the various parties who are significant in MM's life has resulted in some decisions being made which are not in his best interest. Given that there are decisions to be made in the first instance about the most appropriate place of residence for MM both in the long-term and the short-term, and there are concerns about inappropriate decisions being made in the past as to whom he may have contact with, there is a need for an independent decision-maker to be appointed.
52 In respect of the need for an administrator, it is clear from the information provided to the Tribunal that MM has a large and complex Estate which has been managed for some years in an appropriate way by the applicant with the support of others. The Tribunal finds that it is in MM's best interests to allow the applicant to continue in the role of financial manager with the support of the brother-in-law as joint administrator.
Wishes of the represented person
53 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 accepts that MM is keen to have the issue of his accommodation resolved as quickly as possible. The Tribunal finds that the only way this will occur is by the appointment of a person independent of MM and his family and friends.
54 With respect to the administration of his Estate, MM expressed the wish at the first hearing that the applicant and his brother-in-law be jointly appointed to administer his Estate. At the second hearing he said that he wanted the applicant and his son to be jointly appointed with his friend, CP, to take over running the Family Trust.
(Page 18)
55 The Tribunal accepts that MM had expressed on several occasions to various parties that he wanted the management of his Estate to remain in the family. The Tribunal is of the opinion that MM's initial expressed preference, that he wanted the applicant and his brother-in-law to be jointly appointed to administer his Estate is the preferred option especially given that the son had no wish to be appointed.
Decision
56 The Tribunal considered all the evidence available prior to, and at the hearings, and is satisfied that MM is a person for whom orders could be made.
57 The Tribunal is satisfied that it is in MM's best interests, that a guardianship order be made and therefore makes the following order:
The Public Advocate be 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; and
(c) To determine what contact, if any, the represented person should have with others and the extent of that contact.
The order is to be reviewed by 30 July 2006.
58 A short order was made because it is likely that the accommodation and contact issues will be resolved within a short period of time.
59 The following administration order was made:
1. The applicant and the brother-in-law be appointed joint plenary administrators of the estate of the represented person with all the powers and duties conferred by the Act.
2. The administrators are authorised to exercise all the powers previously vested in the represented person in his capacity as guardian of the Family Trust.
3. This order is to be reviewed by 1 March 2011.
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- I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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