LL and PL
[2008] WASAT 85
•18 APRIL 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: LL and PL [2008] WASAT 85
MEMBER: MS D DEAN (MEMBER)
HEARD: 7 MARCH 2008
DELIVERED : 18 APRIL 2008
FILE NO/S: GAA 268 of 2008
BETWEEN: LL
Applicant
AND
PL
Represented person
Catchwords:
Application for administration - Capacity to make reasonable judgments - Need for an administrator - Need for an independent decisionmaker
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 64
Result:
The Public Trustee is appointed plenary administrator for one year
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented person : Self-represented
Solicitors:
Applicant: Self-represented
Represented person : Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
An application for administration was made by LL, the Thai wife of PL who suffered a debilitating stroke while living in Thailand. At the time of his stroke PL was estranged from LL and living with another Thai woman who left him after the stroke. LL arranged for appropriate hospital treatment in Thailand and PL's subsequent repatriation to Australia at a cost of $35,000. This is currently a debt to the Department of Foreign Affairs and Trade.
PL's estate consisted of a caravan in which he and LL lived in a Perth caravan park and where LL continued to live, two cars, one of which had a debt of $17,000 and a large credit card debt. At the time of the hearing neither PL nor LL were in receipt of any income.
The Tribunal was provided with evidence from PL's sister, Mrs R, that LL was unable to read and write English and in Mrs R's view would therefore not be suitable to take on the role of administrator. Mrs R did not propose herself as administrator. LL proposed herself as administrator and confirmed that she could not read or write English and that she relied on others to read documents and explain their contents to her.
The Tribunal found that, given the complexity of the problems in relation to the estate at the time, it was in the best interests of PL that the Public Trustee be appointed administrator to negotiate with the Department of Foreign Affairs and Trade in relation to the repatriation debt and to liaise with the necessary organisations in relation to the car and credit card debts and Centrelink in relation to any benefits to which PL may be entitled.
The appointment was made for one year.
Background
An application for administration was made by LL, the Thai wife of PL who suffered a debilitating stroke in Thailand. LL stated in her application that she knew few details of the estate as PL controlled all aspects of their finances.
These reasons relate to a decision that was made by the Tribunal at the hearing of an application for administration made by the wife of the represented person and have been prepared in response to a written request from the solicitor representing the applicant.
Evidence provided to the Tribunal prior to the hearing
In addition to the written application the following written information was provided to the Tribunal prior to the hearing:
•A report from Dr R who said that PL suffered a stroke and as a result is "unable to speak or comprehend". "The prognosis is not good". Dr R assessed PL as incapable of making reasonable decisions in relation to his financial affairs and incapable of executing an enduring power of attorney (EPA). Dr R also reported that PL should not attend the hearing as attendance would be detrimental to his health and he would have nothing to contribute.
•A report from Ms K, hospital social worker, who provided the following information. PL was admitted to the hospital from a hospital in Thailand where he was living with his Thai wife to whom he has been married for ten years. PL sustained a "large left hemisphere stroke and right hemiplegia". He "appears to recognise his wife but is aphasic and unable to respond other than what appears to be facial recognition of his wife when she visits". They appear to have a positive relationship and she is able to calm him down. PL is "able to follow a one stage command but unable to talk or follow more than one instruction given at a time". PL needs his wife to be appointed plenary administrator of his estate.
•A letter from Mrs R, sister of PL, who lives in the United Kingdom (UK). Mrs R raised "concerns" she has regarding LL, wife of PL being appointed administrator of her husband's estate. These concerns relate to the fact that LL is illiterate, has limited English and if appointed administrator would seek advice from her son from her first marriage who has a conflictual relationship with PL. Mrs R stated that PL and LL had separated prior to him having the stroke with PL not intending to seek a reconciliation. Mrs R proposed that it would be in PL's best interests that an independent administrator be appointed.
Hearing
The hearing was attended by LL and SW, friend of LL. Mrs R attended the hearing by telephone from the United Kingdom.
The Tribunal heard from SW that although PL has improved a little in some of his physical and cognitive functioning since the medical reports were provided to the Tribunal some weeks prior to the hearing, he is not expected to recover to the point where he will be able to live independently or to take on management of his financial affairs.
LL informed the Tribunal that PL has only one bank account and this is in his name only. He has two cars on one of which he owes several thousand dollars. LL does not drive and the two cars are registered in PL's name. PL also owns a caravan in which he and LL lived in a Perth caravan park and where LL continues to live. PL's worker's union is currently paying some of LL's living expenses including rent at the caravan park.
Prior to the couple departing for Thailand, where the stroke occurred, PL had resigned from his job as an electrician and is currently not in receipt of any income. No application has yet been made for a Centrelink benefit.
LL explained to the Tribunal that she and PL have a history of separations and reconciliations. They had separated recently in Thailand and he had been living with another woman at the time he had the stroke. He had been having a long term on again off again relationship with the other woman which had, in the past, precipitated other separations and reconciliations between LL and PL.
LL said that the other woman is a prostitute who was being paid by PL resulting in him acquiring large credit card debts. Once he had the stroke PL could not access his money and, according to LL, the other woman was no longer interested in him. She contacted LL who used her own money to pay PL's account at the hospital and arranged for him to be repatriated to Australia. Repatriation was arranged via the Australian Department of Foreign Affairs and Trade (the department) and cost approximately $35,000. This debt is now owed to the department. LL believes she is now responsible for this debt and has no money with which to pay it.
LL acknowledged that she does not read and write English and as a result, had some difficulties with authorities in Thailand when arranging the repatriation of PL to Australia. She said that if appointed administrator she would get her son and friends to help her by reading the accounts and explaining to her what they mean and how to pay them. Mrs R advised that PL has a conflictual relationship with LL's son and would not want him involved in managing his estate.
SW explained that in order to overcome the difficulties LL is experiencing in Australia paying accounts she is currently being assisted by a community based support organisation.
Legislation
The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act).
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 ‑
(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 [s] 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."
Section 64 of the GA Act provides for the appointment of an administrator. Section 64(1) states:
"(1)Subject to [s] 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under [s] 40 ‑
(a)is unable, by reason of a 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…"
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint ‑
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made."
Findings and reasons
Capacity
The Tribunal had adequate medical evidence, as well as evidence provided at the hearing, to make the following findings in regard to PL's capacity to make reasonable decisions for himself.
As the result of a stroke PL has a severe cognitive impairment and is unable, by reason of a mental disability, to make reasonable judgements in respect of matters relating to his estate and is therefore a person for whom an administration order can be made.
Need and best interests
As set out in the GA Act, the appointment of an administrator requires the Tribunal to find there is a need for an order.
In this case the Tribunal finds that there is a need for the appointment of an administrator to negotiate with the department in relation to the $35,000 repatriation debt; to negotiate with the bank in relation to the large credit card debt; to negotiate with the finance company in relation to the monies owed on one of the cars; to arrange for the sale of the cars if appropriate; to apply to Centrelink for benefits for which PL may be eligible and to pay any ongoing costs such as accommodation which may be incurred by PL in the future.
Having found there is a need for an order the Tribunal must ascertain if the needs of the person can be met by any means less restrictive of the person's freedom of decision and action.
Based on the evidence of the medical treating team and evidence provided at the hearing, the Tribunal finds that PL no longer has the capacity to execute an enduring power of attorney which is a less restrictive alternative to making an administration order. This leaves the Tribunal with no alternative other than making an administration order.
PL's bank account, credit card and other assets are all held in his name and cannot be accessed, or in the case of the cars, be sold, without the appointment of an administrator with formal authority to do so.
The Tribunal must make its decision in what it believes to be the best interests of the person. In this case, the Tribunal considered the appointment of LL, but finds that being illiterate in English would make it difficult for LL to manage the complexities currently associated with PL's estate, particularly in relation to the $35,000 repatriation debt. By her own admission LL, if appointed administrator, would be reliant on others to read documents and to explain the contents to her. The Tribunal is of the view that this would not be in the best interests of PL as it would not necessarily result in his estate being managed in his best interests.
Wishes of the represented person
While the Tribunal endeavours to ascertain and take into account, where possible and appropriate, the wishes of the represented person, it is not always possible to do so. In this case, it is difficult for the Tribunal to ascertain the wishes of PL who did not attend the hearing and is reported to have been estranged from his wife at the time of his stroke. Moreover the Tribunal heard that the ten year marriage had been unstable for some time prior to the final separation in Thailand with several separations and reconciliations occurring between the couple over some time. The Tribunal also heard from the sister that PL was in a conflictual relationship with LL's son who she proposed could help her informally if she was appointed administrator.
The Tribunal was provided with information from Ms K that PL currently appears to have a positive relationship with his wife who, by all accounts, is devoted to his care and well being.
Evidence was provided that the assets of the couple are held in the name of PL only and that LL has had no part in the management of the couple's finances. It is not clear why this is so but it may indicate that PL did not want LL to be involved in financial decision making, possibly because of her limited English and inability to read and write in English or possibly for some other reason unknown to the Tribunal. Either way he apparently did not want her to be the financial decision maker in the family.
Decision
The Tribunal finds that there is no less restrictive alternative to making an administration order and further finds that it is in the best interests of PL that his estate be managed by an administrator with the skills required to engage in what may be complex negotiations and liaison with the various parties to rationalise the estate of PL. The Tribunal appointed the Public Trustee plenary administrator for a period of one year.
It is envisaged that once the repatriation debt issue has been resolved, the car and credit card debts have been resolved and Centrelink benefits accessed it may be appropriate for LL to take on the role of administrator either alone or jointly with another willing and suitable person.
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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