KRL - [2010] WASAT 187

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: KRL [2010] WASAT 187

MEMBER: MS F CHILD (MEMBER)

HEARD: 18 AUGUST 2010

DELIVERED : 21 DECEMBER 2010

FILE NO/S: GAA 1686 of 2010

BETWEEN: KRL
Represented Person

Catchwords:

Guardianship and administration - Review of guardianship order - Application for the appointment of an administrator Enduring power of attorney revoked by the donor - Need for an administrator - Appointment of former donee of Enduring power of attorney Remuneration of the administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(2)(f), s 43(1)(b)(iii), s 43(1)(c), s 64(1), s 64(1)(a), s 64(1)(b), s 51, s 65, s 68(1), s 68(1)(c), s 68(1)(d), s 70, s 76, s 76(1), s 77, s 106, s 110B, s 110K, s 104, s 117, s 118, s 118(1)
State Administrative Tribunal Act 2004 (WA)

Result:

Guardianship order confirmed
Administrator appointed
Remuneration ordered

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

FG and WHR [2009] WASAT 102
Gibbons v Wright (1954) 91 CLR 423
JW [2005] WASAT 249
PG and KRL [2010] WASAT 30
Re E (1993) 12 SRWA

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal appointed an administrator of the estate of an elderly woman with a diagnosis of cognitive impairment following an application made by the Public Advocate.
The Tribunal had dismissed an application for the appointment of an administrator made the year before because an enduring power of attorney which had been executed by the woman in 2006 was operating to meet her need for financial management of her estate. However, after the appointment of the Public Advocate as the woman's guardian, the woman had, with the assistance of friends, revoked the enduring power of attorney.
Having considered the medical evidence before the Tribunal, the Tribunal found that the woman was unable, by reason of a mental disability, to make reasonable judgments about her estate and that she needed an administrator because she had an extensive estate which could not be managed informally. All parties, including the woman herself, agreed she needed assistance with the management of her estate. As the woman was a widow and had no family living in Western Australia, her accountant, who had been one of the attorneys appointed under the enduring power of attorney, was appointed the plenary administrator of her estate. The Tribunal considered that, despite the revocation, this appointment was consistent with the wishes of the woman in respect of the management of her financial affairs.
The appointed administrator sought remuneration for the administration of the estate. Remuneration was ordered because of size of the estate.

Reasons of the Tribunal

These written reasons relate to determinations of the Tribunal made on 18 August 2010 regarding KRL (represented person) under the Guardianship and Administration Act 1990 (WA) (GA Act) and are produced following a request from the appointed administrator made in a letter dated 8 October 2010 for clarification of whether the revocation by the represented person of her enduring power of attorney by a document dated 26 May 2010 was valid.
The request for clarification can be seen in the context of a declaration of the Tribunal dated 7 October 2010, that an enduring power of guardianship made by the represented person dated 26 May 2010 is invalid. That decision, in GAA 2530/2010, is not dealt with in these written reasons as the matter was determined by the Tribunal constituted by another member.
Although brief oral reasons for the determinations made on 18 August 2010 were given at the conclusion of the hearing, these written reasons address the question raised by the appointed administrator in her letter of 8 October 2010 and also give a determination on the reserved decision regarding remuneration of the administrator.

Background

The background of the appointment of the Public Advocate as guardian of the represented person is set out in the reasons of the Tribunal published as PG and KRL [2010] WASAT 30. The Public Advocate was appointed on 13 November 2009 as guardian for the represented person to determine, amongst other functions, where she was to live due to conflict about that decision amongst friends and family members of the represented person. The appointment of an independent guardian was determined to be in the best interests of the represented person.
At that time, an application for the appointment of an administrator of the represented person's estate was dismissed. The Tribunal was satisfied that there was no need for the order because there was an enduring power of attorney in place by which the financial affairs of the represented person were managed. This was found to be a less restrictive means for the management of her estate than the making of an administration order. The enduring power of attorney had been made by the represented person in 2006 and had appointed her accountant, PG, and her niece, LK, who lived outside Western Australia, as her joint and several attorneys. The power was styled to be in effect immediately on its execution and continued notwithstanding the donor's subsequent loss of capacity.
The Tribunal had listed a review of the guardianship order made on 13 November 2009 for hearing on 14 June 2010 when documents were submitted, both signed by the represented person and dated 26 May 2010, appointing enduring guardians pursuant to s 110B of the GA Act and the second document revoking the enduring power of attorney she had executed in 2006.
The review hearing was adjourned and the Public Advocate directed to make an application for the appointment of an administrator for the estate of the represented person. In the interim, PG was appointed the plenary administrator pursuant to s 65 of the GA Act. This order can be made where the Tribunal considers that a person may be a person for whom an order can be made and there is a need for immediate provision for the protection of the person's estate.
Both the review of guardianship order and the application for the appointment of an administrator were determined on 18 August 2010.
The hearing was attended by the represented person, the delegated guardian of the Public Advocate (guardian), PG, and a number friends of the represented person, including PF, who said he has assisted with the execution of the documents on 26 May 2010, and two persons who stated that they had been appointed as her enduring guardians. The niece of the represented person appeared by telephone conference. At the hearing, the Tribunal appointed PG as the administrator of the estate of the represented person and confirmed the appointment of the Public Advocate as limited guardian.
An application was later filed by the Public Advocate on 26 August 2010 seeking a declaration as to the validity of the enduring power of guardianship. As noted, that matter was determined on 7 October 2010 with a declaration that the instrument was invalid.

Legislative framework

To appoint a guardian, or on review of a guardianship order, the Tribunal must be satisfied, as stated in s 43(1) of the GA Act, as follows:
(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,
…
To appoint an administrator for the represented person, the Tribunal must be satisfied that the represented person is a person for whom such orders can be made; that the represented person is unable, by reason of a mental disability, to make reasonable judgments about her estate (s 4(1)(a) of the GA Act) and is in need of an administrator of her estate (s 4(1)(b) of the GA Act).
These provisions are subject to s 4 of the GA Act which sets out the principles which the Tribunal must observe in all proceedings commenced under the GA Act.
The principles state that the primary concern of the Tribunal must be the best interests of the represented person; that every person shall be presumed to be capable of looking after their own health and safety, and of making reasonable judgments in respect of matters relating to their person, managing their own affairs and making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal. The principles include that orders should not be made if the needs of the person in respect of whom the application had been made, could, in the opinion of the Tribunal, be met by means less restrictive of that person's freedom of decision and action. Any order made should be in terms that impose the least restriction possible in the circumstances on the person's freedom of decision and action. In considering any matter under the GA Act, the Tribunal is bound to attempt to ascertain the wishes of the person as expressed or gathered from that person's previous actions.

Medical evidence

For the purposes of the review of the guardianship order and the application for the appointment of an administrator, the Tribunal received medical and other reports.
From one report received, it is clear that a doctor, who was not the represented person's regular general practitioner, was consulted by friends of the represented person and a referral for assessment to Dr TM, a consultant physician, was arranged. This referral occurred without the consent of the Public Advocate, who is the represented person's guardian with the authority to consent to her medical treatment.
Dr TM provided a report to the general practitioner dated 10 March 2010 of an assessment of the represented person he conducted when she was accompanied by MC, a friend and long time neighbour. MC did not attend either hearing before the Tribunal in June or August 2010.
Dr TM notes:
Regarding her current situation, she was unclear about a couple of important points. She could not recall the arrangement for her niece to be given enduring power of attorney other than saying it was the idea of her accountant and her niece's solicitor. She appeared to be clear about her major assets.
In conclusion, I believe she has very reasonable cognitive function for her 93 years and I did not feel that she has dementia. She could not manage more complex matters. Nevertheless, she is clear about her desire to try and return home, and at this point, I am not convinced that this is out of the question. I feel it would be reasonable for her to have a further ACAT assessment with a view to considering whether a discharge from [residential care facility] is possible. She is not happy with the current arrangement as to who is her guardian, and with her niece having enduring power of attorney, but did not immediately suggest to me an alternative. I believe this is a further issue which requires exploration.
The report from Dr MC, Consultant Physician, Department of Rehabilitation and Aged Care, dated 28 July 2010, which followed an assessment of the represented person on 22 July 2010, notes the following:
With regards to [the represented person] being able to organise her finances independently, I do not feel that she would be capable of this. I do not feel that she understands an Enduring Power of Attorney and its implications. I would not deem her competent to arrange one at this time or in the future. Although she did discuss an alternative she remained extremely indecisive as to what she should arrange.
With regards to making decisions about her personal health care I feel she is capable. She is happy with her current living situation but would be unable to manage her finances without support.
Earlier, the doctor noted that the represented person was:
… unable to explain what an Enduring Power of Attorney was or the implications surrounding this. She was also unable to inform me of her assets and the full extent of her finances. She does however remain persistent and consistent with the fact that she is not keen on her niece having an Enduring Power of Attorney and would like to have her niece removed from the Enduring Power of Attorney. She is happy with her solicitor continuing with this role, but feels that it would be more beneficial for more than one person to manage her finances. She did indicate that she would prefer two friends to have a possible involvement in her financial management. However she was unable to recall the name of one of these friends despite being a friend for a number of years. She does not feel she is able to trust anyone completely which is a concern for her. She feels that she has lost control of her finances, which grieves her. She does not feel she is being in any way financially abused and would prefer that money was never mentioned. She believes the guardianship decision and the Enduring Power of Attorney were organised at a time when she was very unwell and possibly under the influence of analgesia medication. She feels her finances and its organisation exhausts her.
Dr MC's report refers to the represented person's niece and solicitor, holding an enduring power of attorney. The name referred to in the report is that of PG, the represented person's accountant. At the time that assessment was undertaken however, the represented person had, by letter dated 26 May 2010, revoked the enduring power of attorney.
A medical report dated 24 May 2010 by Dr SB, the represented person's general practitioner who had known her for six months, gives the opinion that the represented person is incapable of making reasonable decisions in relation to her personal health care, her living situation or financial affairs and is incapable of giving an enduring power of attorney.
The primary carer guide dated 20 May 2010 completed by the facility manager notes a 'mild cognitive impairment' and 'significant conflict between the represented person's "EPA's" and her longterm friends and neighbours'. The report notes the represented person 'needs assistance' with financial decisions and supports the need for the appointment of a guardian.

Review of the guardianship order

The Tribunal made findings about the need for the appointment of a guardian for the represented person in the decision made in November 2009 reported as PG and KRL.
At [30] [31], those reasons state:
Based on the reports of Dr F and Dr H and the OT assessment which are before the Tribunal, I find that the represented person is a person who is in need of oversight and care in the interests of her own health and safety, and she is therefore a person for whom a guardianship order can be made.
The Tribunal accepts the submissions of the Public Advocate that the represented person is in need of a guardian to make decisions, not only because she has what Dr H described as an impairment of executive functioning, but because she is under pressure because of the gravity of the decision before her to return to her own home or to enter residential care. This was apparent in her own statements.
On review, the circumstances facing the represented person are substantially the same as when the guardianship order was first made; there is dispute about where she should live between her close friends and her niece and accountant who were the former attorneys appointed under the enduring power of attorney. There is also a lack of cooperation and a level of distrust between the parties. The represented person is reported to continue to give different views to different people about the question of whether she should remain living in the residential care facility or should return to her own home with support services. At the commencement of the review hearing, she expressed the wish to return home. This was consistent with the view expressed to Dr TM in March 2010 when accompanied by her neighbour, MC, to the appointment, but contrasts to her views reported by Dr MC, less than a month before the hearing, and according to the guardian, in contrast to the view she had consistently expressed previously. The guardian submits that the represented person had been 'coached' for the hearing.
Whatever the position, the represented person is highly vulnerable and in need of independent advocacy to ensure, to the extent possible, that her wishes, whatever they are found to be, are given effect to, consistent with the proper protection of her health and safety (s 51 of the GA Act).
Although, according to Dr MC's report, the represented person is capable of making decisions about her personal health care, she is frail and indecisive. She is vulnerable and dependent on others for many of her activities of daily living and needs care and assistance. She is in need of oversight and care in the interests of her own health and safety (s 43(1)(b)(iii) of the GA Act). She can make some decisions but needs assistance and oversight in the making of those decisions and remains a person for whom a guardian may be appointed.
The represented person remains in need of a guardian pursuant to s 43(1)(c) of the GA Act because of the ongoing conflict about decisions about where she is to live. There is no less restrictive means by which her needs can be met. The execution of the enduring power of guardianship (EPG), without reference to the existing guardianship order, reflects the lack of communication between the parties. There being no application regarding the EPG before the Tribunal, it cannot be dealt with in the present proceedings.
Given the ongoing conflict, there is noone suitable for appointment as guardian. The Public Advocate is reappointed because of the need for a guardian for the represented person independent of the conflict between those close to her.
The order under review is amended to include the function to determine the contact the represented person has with others. It is not in the best interests of the represented person that there be inconsistency about the doctors she sees or a lack of communication or coherence in planning or arrangements for her medical care, as occurred when she was taken to a new doctor for assessment without the consent of the guardian or coordination with her regular general practitioner.

The revocation of the enduring power of attorney and the powers of the Tribunal

The enduring power of attorney dated 1 March 2006 by which the represented person appointed her accountant, PG, and her niece, LK, jointly and severally to be her attorneys, was not subject to any conditions and was to continue in force notwithstanding the subsequent legal incapacity of the donor. The witnesses were two solicitors.
The enduring power of attorney was revoked by a typed document prepared for the represented person and said to be made pursuant to s 104 of the GA Act. The document is dated 26 May 2010 and signed by the represented person and witnessed by a pharmacist and pharmacy assistant.
A friend of the represented person, PF, states that the represented person 'willingly revoked' the enduring power of attorney and that he had assisted her. He states that PG had capably managed the estate of the represented person as an accountant, as distinct from an attorney (T:38, 18.08.10). He had not appreciated that the enduring power of attorney was in effect from its execution. He agrees that a person who is not capable of executing an enduring power of attorney is not capable of revoking one.
Whether the represented person was, in fact, competent to make the revocation is the question put by the administrator.

In dealing with the document executed by the represented person as a revocation of the enduring power of attorney, the provisions of the GA Act and the general law must be applied.
There is a presumption of capacity in law which is mirrored in the principles of the GA Act, as set out at s 4; that persons are presumed capable of making reasonable decisions about their person and their estate until that presumption is rebutted by evidence to the satisfaction of the Tribunal.
The starting position is that a person is presumed to be capable of executing a document. The common law test of mental capacity was summarised by the High Court of Australia in Gibbons v Wright (1954) 91 CLR 423 (Gibbons v Wright) at 438 as follows:
… the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.
…
In the case of making an enduring power of attorney, the requirements for capable execution are summarised in the doctor's guide sent to doctors by the Tribunal. These are that the donor understand the nature and extent of her estate, that the enduring power of attorney will give the attorney complete authority to deal with the estate, that, whilst capable, the donor may direct the attorney and may revoke the power, and that, as the attorney's stewardship will not be monitored or audited as a matter of course, in choosing an attorney, the donor is placing a high level of trust in the attorney.
To capably revoke an enduring power of attorney, applying the Gibbons v Wright formula, the represented person is required to understand, when explained to her, the authority given to her attorneys, and that, by signing the revocation document she was taking that authority away and the consequences of doing so.
It is accepted that there is a question about whether the represented person did understand the nature and effect of the revocation. She did not remember the revocation when asked to discuss her affairs with Dr MC a few months later. PF, her friend who assisted with the revocation, did not fully appreciate the role PG played. Because he did not know the legal relationship created by the enduring power of attorney (that it was in effect from its execution), he could not assist to explain the effect of the document for the revocation of the enduring power of attorney and its consequences to the represented person.
That being said, the Tribunal has the powers set out in the enabling act, in this case the GA Act, and under the State Administrative Tribunal Act 2004 (WA). In contrast to the powers of the Tribunal to declare the validity of an EPG found in s 110K, the Tribunal does not have any declaratory powers in the GA Act in respect of enduring powers of attorney, other than to declare an enduring power of attorney to be in force under s 106 of that Act. There is no provision in the legislation which allows the Tribunal to declare the validity or invalidity of an enduring power of attorney or the revocation of one. Such a declaration might be made by the Supreme Court.

Appointment of the administrator

Turning to the decision of the Tribunal to appoint an administrator of the estate of the represented person, as noted above, a previous application for the appointment of an administrator made in 2009 was dismissed because the represented person had an enduring power of attorney in place which she had executed in 2006.
For the purpose of determining the present application for the appointment of an administrator, the relevance of the revocation of the enduring power of attorney on 26 May 2010 is that it has removed the less restrictive alternative to the appointment of an administrator of the estate of the represented person.
In his report of March 2010, Dr TM comments that the represented person had a 'reasonable knowledge of her assets' but states the represented person was 'unclear about a couple of important points' and 'could not manage more complex matters'. By July 2010, Dr MC notes that the represented person could not 'inform [the doctor] of her assets and the full extent of her finances' and could not manage her finances independently. In May 2010, Dr SB gives the opinion that the represented person could not make reasonable judgments about her estate and could not capably execute an enduring power of attorney.
Taking this evidence as a whole, the Tribunal concludes that the represented person does suffer an impairment of her cognition and her memory, and is a person for whom an administration order may be made, in that she is unable, by reason of that impairment, of making reasonable judgments about her estate.
It is argued by her friend, PF, that the represented person's estate is straightforward, that she has a number of small shareholdings and term deposits and a house property, and she receives a pension income. While the estate is not complex the represented person herself agrees that she needs assistance. PF agrees that the represented person likes to have assistance with her financial affairs.
It is apparent that the represented person has relied on the assistance of others for some years. Both PF in the past, and more recently her accountant, PG, have assisted her with her financial affairs. I accept the evidence of Dr MC that independent management of her finances is now beyond her. In the absence of an enduring power of attorney, which was previously found to be a less restrictive alternative to the making of an administration order, the represented person is in need of an administrator of her estate.
It is said the represented person would like to have input into the decision-making, but this is countered by the report from Dr MC which states that the represented person would 'prefer that money was never mentioned' and 'feels her finances and its organisation exhausts her'.

Appointment of an administrator

When appointing administrators, the Tribunal must be satisfied of the willingness of any proposed administrator to take on that role, the ability of the appointee to act in the best interests of the represented person and that the appointee is otherwise suitable to act as the administrator of the estate of that person (s 68(1) of the GA Act).
The Tribunal is directed to take into account, as far as is possible, the compatibility of the appointee with the represented person or with any guardian, and whether the appointee will be able to perform the functions proposed to be vested in the administrator.
The Tribunal is bound to have regard to the wishes of the represented person under the principles of the GA Act as expressed or gathered from past actions.
It is accepted that the represented person has expressed differing views to different people about a range of matters and she may have changed her mind about some issues over time. However, she created an enduring power of attorney in 2006 when there is no evidence that she lacked capacity to make that choice. Although the revocation of the enduring power of attorney in May 2010 was said to have been done willingly by her, in July in the report of Dr MC, it was reported that the represented person was happy with PG as her attorney but not with her niece, because she believed her niece to be young, and the represented person did not feel she had a business mind to manage finances.
PG proposes herself for appointment and advises that she has been the represented person's accountant since 2001 and attorney since 2006. The choice by the represented person for the involvement of PG in her finances appears to be one of longstanding. The administrator says she is familiar with the role and obligations of an administrator as she has already been appointed an administrator for another represented person. She has also been sent by the Public Trustee documents and information in relation to the estate of the represented person, as she had been acting under a s 65 order since the adjournment in June 2010.
The Tribunal finds the accountant and former donee of the enduring power of attorney suitable to be appointed, in that she is able to perform the functions and, through her statements, has shown a commitment to working in the best interests of the represented person, a preparedness to consult with the represented person and work with the guardian. As the long-term accountant, she is familiar with the estate and, through her professional qualifications, has the necessary skills required for the administration of the estate and to meet the reporting obligations of the Public Trustee.
The orders were set for review in August 2012.
The question of remuneration was reserved pending a submission by the administrator. Unfortunately, the decision on remuneration has been delayed.

Remuneration of the administrator

The authority in the GA Act for the fixing of remuneration is contained in s 117, which provides:
(1)The State Administrative Tribunal may fix remuneration or a rate of remuneration and order that the same be paid to an administrator out of the estate of the represented person if the Tribunal considers that, because of the size or complexity of the estate or both, remuneration should be paid to the administrator.
(2)A guardian, and except as provided in subsection (1) an administrator, shall not receive remuneration for services rendered to the represented person.
(3)Nothing in this section
(a)prevents the Public Trustee from receiving remuneration under the Public Trustee Act 1941; or
(b)limits the operation of section 16 of this Act or section 39, 87 or 88 of the State Administrative Tribunal Act 2004.
(4)Subject to subsection (3)(a), a corporate trustee shall only be entitled to commission in respect of the capital of the estate of a represented person to the extent that the State Administrative Tribunal expressly allows.
Section 118 of the GA Act provides:
(1)An administrator may reimburse himself for or pay out of the estate of the represented person all expenses reasonably incurred in or about the performance of his functions.
(2)A guardian is entitled to receive from the represented person such expenses as are reasonably incurred in or about the performance of his functions and are allowed by the State Administrative Tribunal, either generally or in any particular case.
(3)If expenses to which a guardian is entitled under subsection (2) are not paid, he may recover them as a debt due in a court of competent jurisdiction.
In Re E (1993) 12 SRWA (Re E), at 246, the Full Board of the then Guardianship and Administration Board (Board), when considering the remuneration of an administrator, said:
We observe from the provisions of this section that the Board has no authority to fix remuneration or a rate of remuneration and order the same to be paid where the size or complexity of the estate or both do not justify such a course.
The Board considered the other subsections of that provision, and also confirmed that the duties to be performed by the administrator in s 70 of the GA Act were relevant to the consideration of remuneration.
The Board considered that s 76 of the GA Act was relevant, as it provides that an administrator may employ agents. Section 76(1) of the GA Act provides:
An administrator may, instead of acting personally, employ and pay an agent, whether a solicitor, accountant, bank, stockbroker or other person, to transact any business or do any act required to be transacted or done in the management or administration of the estate, including the receipt and payment of money, and the keeping and audit of accounts.
The Board also noted that, under s 118(1) of the GA Act, an administrator may reimburse herself from the estate of the represented person all expenses reasonably incurred in the administration of the estate.
In Re E, the Board considered alternative fee bases, namely hourly charges and income-based charges, and accepted, in that case, that a capital-based percentage fee was the most appropriate basis for remuneration of the administrator, a trustee company.
In coming to that conclusion, the Board accepted the submission that:
… charging by way of hourly charges is fundamentally problematical in terms of its openended nature so that it is likely to lead to an unknown quantum of cost.
In the present case, the estate of the represented person as reported to the Public Trustee consists of income from a war widow's pension, and superannuation and dividends, assets of approximately $700,000 cash, shares of $1.8 million and a house property (which is currently vacant) and household contents. The represented person has no liabilities reported. Estimated income is reported in the order of $176,700.81. Estimated annual expenditure totals $189,573.60 which includes $36,000 approximately to residential care fees and a further $5,000 for other items, pharmacy $1,200, personal expenses of $12,000, gifts for the nieces and the sisters of the represented person of $20,000 and $21,000 respectively, donations to charity $6,000 and accountant fees of $36,000.
In the administrator's detailed submission dated 31 August 2010, she provides background of her contact with the represented person; she notes that she has had a professional relationship with the represented person as her accountant since October 2001. The tasks previously undertaken by the administrator as accountant for the represented person are summarised as a review of the represented person's papers on a quarterly basis; payment of bills; explanation of matters where required; working out finances; making gifts to charity as well as to surviving sisters and nieces; preparation of taxation return; and, if she needed legal assistance, to arrange for her solicitor to visit her.
The administrator submits that there is nothing complex in the estate. However, time is incurred in the frequent explanations given of financial matters to the represented person. The administrator states she works at the pace of the represented person to change and simplify matters. She proposes to further simplify the estate by the reduction in the number of bank accounts.
In support of her proposal for remuneration, the administrator submits that when the represented person was admitted to hospital in July 2010 (it is understood that the date in the administrator's submission is an error, as the represented person was admitted to hospital in July 2009), she visited the represented person at her request (and that of her niece) and was asked to undertake matters on the represented person's behalf, including to speak to her doctors, as the represented person did not always understand them. The administrator advises that the represented person told her 'that she would pay me for my time as she has in the past' at her charge-out rate of $260 per hour.
The administrator says an agreement was reached that she would charge her full rate for accounting, finance, taxrelated matters and matters relating to the enduring power of attorney, and charge the represented person half that rate for everything else. Other personal tasks which were undertaken on behalf of the represented person and charged at the lower rate include the purchase of special foods and toiletries, Christmas presents and so on.
The submission of the administrator is that she be remunerated on the following basis:
•Prior to 1 July 2010, at the rate of $260 per hour for duties as a plenary administrator and $130 per hour for other duties;
•From 1 July 2010, at the rate of $273 per hour for duties as a plenary administrator and $136 per hour for other duties;
•From July 2011, the rate being increased by 5% to $286 per hour for duties as a plenary administrator and $243 for other duties.
In invoices sent both to the Tribunal and to the Public Trustee dated 31 August 2010 for the period 1 June to 30 June 2010, the administrator has billed for seven hours six minutes for administration duties at $260 per hour, totalling $1,846, and five hours 42 minutes is charged for 'other' at the rate of $130 per hour, totalling $741. Total charges for the period $2,587 plus GST of $258.70, bringing the total charged for the period to $2,845.70.
For the period 1 July 2010 to 31 July 2010, the administrator has billed for six hours 12 minutes for administration duties at $273 per hour, totalling $1,692.60 and 'other' at $136 per hour, totalling $979.20. Total charges for the period $2,938.98 plus GST of $267.18, bringing the total charged for the period to $2,938.98.
In determining whether remuneration can be ordered and, if so, the rate of the remuneration, although the evidence of the administrator is accepted that the estate is not a complex one, the Tribunal is satisfied that the estate is sufficiently large to warrant remuneration to be ordered under s 117 of the GA Act.
The Tribunal can only order the remuneration of an appointed administrator. An order pursuant to s 65 of the GA Act is dated 14 June 2010, which effectively appointed an administrator on an interim basis. An administration order was made on 18 August 2010 which followed a declaration made under s 64(1) of the GA Act that the represented person is incapable of making reasonable judgments about her estate. From that time, the represented person was incapable of entering into any contract, including the fee agreement (s 77 of the GA Act).
The fees sought by the administrator prior to her appointment as administrator (from 1 June 2010 to 14 June 2010) may be treated as debt to the estate. The payment of such a debt would be subject to close scrutiny by the Public Trustee on examination of the accounts submitted because it is a payment by the administrator to herself.
The fee agreement arguably applies until the declaration made on 18 August 2010.
The fee agreement entered into by the represented person while in hospital and prior to applications being made in the Tribunal does not determine of the rate of remuneration ordered by the Tribunal. The determination of remuneration is at the discretion of the Tribunal and is made having regard to the size and complexity of the estate and the nature and complexity of the tasks undertaken by the administrator. The represented person's past practices and arrangements might be a guide but they are not determinative.
Remuneration of an administrator can only be for the administration of the estate of the represented person. An administrator is authorised to manage the financial and legal affairs (in respect of the estate) of the represented person. The types of functions which may be given to an administrator are set out in Sch 2 Pt A of the GA Act and illustrate the type of authorities exercised. These duties are described in layperson's terms in the Private Administrators' Guide, sent to all appointed administrators by the Public Trustee. The tasks largely involve financial decisionmaking.
The rate of $260 per hour was the rate charged by the administrator as an accountant for financial management tasks, such as review of investments planning and taxation returns, which are tasks involved in the administration of the estate. The lower rate charged reflects work undertaken by the administrator for the represented person which was in the nature of personal services, such as shopping. These other services do not relate to the financial management or administration of the estate and cannot therefore be the subject of an order for remuneration.
In respect of the time taken in the administration of the estate, the administrator states that the estate is not complex. She is an accountant and it would be expected that she would have in place systems for the financial management tasks she outlined in her submission. In the billings for the period 1 June 2010 to 31 July 2010, only a portion of the very detailed description of activities could be said to relate to the administration of the estate, such as the payment of accounts, updating financial statements, review of investments and completion of forms for the Public Trustee.

According to the administrator, time is incurred in the frequent explanations given of financial matters to the represented person. An example to which she refers in one of her submissions is the need, in her view, to vary the bank account arrangements for the represented person. The administrator states she is delaying this task until she can discuss it with the represented person. This is, in my view, a misunderstanding of the role of the administrator, which is to make decisions which the represented person has been found to no longer be capable of making for herself. So, for example, if it is, in the judgment of the administrator, in the best interests of the represented person that banking arrangements be varied to secure a better rate of interest or to reduce the number of accounts or to reduce fees, the administrator should undertake this task without delay, as she is entitled and required to do.
Clearly, in her frequent contacts and discussions with the represented person, the administrator is making an effort to reassure the represented person by keeping her informed about the administration of the estate. However, judgment must be exercised in relation to this, given the diagnosed short-term memory problems of the represented person and the comment noted in Dr MC's report; that the management of her finances exhausts the represented person. It may be appropriate for the administrator to seek advice from Dr MC or the guardian as to the extent the represented person should be involved in these matters and whether such discussions are in her best interests.
Time charging is, for the reasons recognised in Re E, inappropriate because of the openended nature of the charging. In this case, the annual estimate of the charges is $36,000, which is too high, given the size and nature of the estate.
The Public Trustee was asked to submit an estimate of the fees which the Public Trustee would charge. In total, the annual fees estimated to be charged by the Public Trustee, if appointed the administrator of this estate, were: personal administration fee of $9,822; asset management fee of $9,417, which includes the represented person's home of $1,511, and the external investment fee of $8,360. A total fee estimated by the Public Trustee is $27,599, with the addition of $1,511 for the property if the represented person remains in the residential care facility, the total being $29,110 per annum.
Another comparison is found in a case reported as JW [2005] WASAT 249. In that case, professional accountants were appointed administrators of an estate having an approximate value of $7.5 million. The estate was large and had some complexity in relation to the range of assets managed by the administrators, including a large share portfolio and real property, and the ongoing financial support of the disabled adult children of the represented person. Remuneration of $34,000 per annum to include portfolio management, taxation and all other services as administrators was ordered.
In the case of FG and WHR [2009] WASAT 102, remuneration was ordered of private administrators of an estate valued at just over $1.5 million. In that case, the administrators were not professionals but the Tribunal decided that the size and complexity of the estate, which included investments which regularly fluctuated in value and which required close monitoring and scrutiny (at [39]), warranted remuneration. Remuneration was ordered in the amount of $3,000 per year.
As can be seen, the rate of remuneration varies with the nature of the estate under management. In the present case, the estate is not a complex one, and the range of assets includes a house property and term deposits and shares. The shares appear not to be traded. The existence of the vacant house property in the estate adds a degree of complexity, and time is necessary for the management of that asset. Until a decision is made by her guardian about whether the represented person can return to live there, an additional allowance should be made for the management of that part of the estate.
As noted in dealing with any proceeding commenced under the GA Act, including determining the rate of remuneration under s 117, the Tribunal is required to have regard to the principles set out in s 4(2) of the GA Act, in which the primary concern of the Tribunal shall be the best interests of the represented person. That section also refers to s 4(2)(f), which provides that when considering any matter relating to the represented person, the 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.
Based on this consideration, the Tribunal has accepted that it is consistent with the past actions of the represented person that PG be appointed to act as the administrator of her estate. However, the Tribunal is not satisfied that the rate of remuneration proposed by the administrator is warranted given the stated lack of complexity in the estate. Although there must be some recognition of the long-term relationship, this does not justify the charging proposed by the administrator.
Given that the administrator is a professional accountant, the management of such an estate would not present challenges in the financial sense. The rate of $260 per hour is the rate previously charged by the administrator for accounting work. This level of remuneration is not appropriate for a bookkeeper which, it must be said, some of the duties of the administrator amount to this type of work, for example updating financial records. On the other hand, the role of the administrator goes beyond the provision of the services of an accountant (or a bookkeeper) to the exercise by the administrator of her own judgment as to the best interests of the represented person. The fee previously charged by the administrator is a guide to the rate of remuneration ordered by the Tribunal.
Given the lack of complexity, four hours per month at the rate of $260 per hour would be sufficient for the administrator to undertake tasks necessary for the administration of the estate. For the reasons above, an additional amount for the management of the vacant property of the represented person will be ordered. The fee charged by the Public Trustee of $1,511 is a useful guide.
For the reasons given, the rate of remuneration of the administrator is fixed as the following:
•Up until the declaration of the represented person's incapacity pursuant to s 64(1) of the GA Act which occurred on 18 August 2010, the fees for time charged (for administration of the estate only) are allowed.
•From 18 August 2010, the Tribunal's order reflects the four hours per month allowed.

Orders

On review of a guardianship order dated November 2009, the order is revoked and a guardianship order is substituted for it:
1.The Public Advocate be appointed as the limited guardian 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;
(c)subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of the represented person;
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)to determine the services to which the represented person should have access.

This order to be reviewed by 18 August 2012.
2.On an application by the Public Advocate for the appointment of an administrator, PG appointed administrator of the estate with all the powers and duties of a plenary administrator.
3.Remuneration of the administrator is ordered in the following terms:
1)For the period 14 June 2010 to 18 August 2010, $2,990 (being 3.5 hours part of June, six hours for July and two hours for part of August 2010).
2)For the period 18 August 2010 to 18 August 2012, $12,480 per annum with an additional payment of $1,511 per annum while the house property of the represented person is retained as an asset of the estate.

This order to be reviewed by 18 August 2012.

I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER