LMcA and Anor and AJ and Anor
[2006] WASAT 12
•20 JANUARY 2006
LMcA & ANOR and AJ & ANOR [2006] WASAT 12
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 12 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1409/2005 | 21 SEPTEMBER 2005 | |
| Coram: | MR E LEIPOLDT (SENIOR SESSIONAL MEMBER) | 20/01/06 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Administration orders made. | ||
| B | |||
| PDF Version |
| Parties: | LMcA BH AJ RCJ |
Catchwords: | Administration Guardianship and Administration Act 1990 (WA) Application Need Enduring power of attorney Obligations of donee Capacity of donee |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 4(1), s 4(2)(b), s 64(1)(a) |
Case References: | Nil Nil |
Orders | In all these circumstances the Tribunal determined that there was a need to appoint administrators for AJ and RCJ and made the following orders.,In the matter of AJ:,1. The Public Trustee of 565 Hay Street Perth, be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.,2. The enduring power of attorney dated 18 April 2004, by which AJ appointed RCJ to be her attorney be revoked.,3. The administrator is directed to liaise with BH with regard to the development of a management plan and its ongoing administration.,4. This order is to be reviewed by 21 September 2010.,In the matter of RCJ:,1. The Public Trustee of 565 Hay Street Perth, be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.,2. The administrator is directed to liaise with BH with regard to the development of a management plan and its ongoing administration.,3. This order is to be reviewed by 21 September 2010. |
Summary | AJ, an elderly woman, had appointed her son, RCJ, as donee of her enduring power of attorney in 2004. RCJ has been very supportive to his mother, for a number of years, in the role of primary carer. The demands of this role may have exacerbated his own mental wellbeing. In the face of both AJ's and RCJ's closely intertwined complex financial affairs and their incapacity to manage their own finances, various debts were incurred, including to the nursing home in which AJ resides. An investment was made in a company that subsequently went into receivership. Both AJ and RCJ were put at risk of losing their remaining assets and AJ of losing her nursing home placement. The Public Trustee was appointed as plenary administrator for both AJ and RCJ. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LMcA & ANOR and AJ & ANOR [2006] WASAT 12 MEMBER : MR E LEIPOLDT (SENIOR SESSIONAL MEMBER) HEARD : 21 SEPTEMBER 2005 DELIVERED : 20 JANUARY 2006 FILE NO/S : GAA 1409 of 2005
- GAA 1420 of 2005
- BH
Applicants
AND
AJ
RCJ
Respondents
Catchwords:
Administration Guardianship and Administration Act 1990 (WA) Application Need Enduring power of attorney Obligations of donee Capacity of donee
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(1), s 4(2)(b), s 64(1)(a)
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Result:
Administration orders made.
Category: B
Representation:
Counsel:
Applicants : N/A
Respondents : N/A
Solicitors:
Applicants : N/A
Respondents : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 AJ, an elderly woman, had appointed her son, RCJ, as donee of her enduring power of attorney in 2004. RCJ has been very supportive to his mother, for a number of years, in the role of primary carer. The demands of this role may have exacerbated his own mental wellbeing. In the face of both AJ's and RCJ's closely intertwined complex financial affairs and their incapacity to manage their own finances, various debts were incurred, including to the nursing home in which AJ resides. An investment was made in a company that subsequently went into receivership. Both AJ and RCJ were put at risk of losing their remaining assets and AJ of losing her nursing home placement. The Public Trustee was appointed as plenary administrator for both AJ and RCJ.
Introduction
2 LMcA, director of nursing of Craigwood Green Nursing Home, applied for an administration order for AJ, mother of RCJ. BH, cousin of RCJ, lodged a second application for an administration order, for RCJ. The Tribunal dealt with these applications for both these parties in the same hearing as their affairs were closely intertwined.
3 AJ executed an enduring power of attorney (EPA) in which she appointed her son, RCJ, as donee. The application for AJ was brought out of concern that accommodation accounts for AJ, and other bills, had not been paid by her son RC.
4 The application for RCJ was brought out of concern that he could not manage his own financial affairs and was at risk of losing his remaining estate, and adversely affect his health and wellbeing.
5 AJ has been diagnosed with various disorders, including cognitive impairment.
6 RCJ has been diagnosed with borderline intellectual functioning and agitated depression with anxiety.
7 Present at this hearing were RCJ; JH, barrister for BH, an applicant for RCJ, first cousin, and closest next of kin after RCJ's mother; MD from the Public Trustee's office; and DW, from Perpetual Trustees. AJ had been excused from attending, due to her age and her medical condition. The applicant for AJ was unavailable.
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8 Applicant LMcA did not indicate in her application who she sought to be appointed for AJ as administrator. Applicant BH sought for the Public Trustee to be appointed administrator for RCJ and supported the appointment of the Public Trustee also for AJ.
Background
9 AJ is a 90-year-old woman who has been diagnosed with a progressive cognitive impairment and who has ischaemic heart disease, hypnoatraemia, diabetes and foot ulcers. Reports indicated that AJ was not capable of managing her own finances.
10 She resides in Craigwood Green Nursing Home where her son RCJ visits her on a regular basis, and who was described in LMcA's report as extremely attentive to his mother's needs and was her primary carer for some years before AJ's admission to this nursing home. The demands of this caring role were significant.
11 RCJ is a 51-year-old man who has been diagnosed with borderline intellectual functioning, agitated depression with anxiety and compulsive spending impulse control disorder. His excessive spending from his own resources and of his mother's, had placed him in financial dire straits and put his mother's accommodation placement at risk.
12 Reports showed that RCJ did not have capacity to make his own reasonable decisions about his financial affairs. However, his prognosis was good in the long-term, conditional upon his acknowledgment of the problem and acceptance of appropriate assistance.
13 BH and RCJ had no objections to the appointment of the Public Trustee as plenary administrator for AJ.Nor did any other parties present.
14 RCJ initially objected to the appointment of the Public Trustee to manage his affairs, but accepted it in the course of the hearing. All parties present supportedthe appointment of the Public Trustee as plenary administrator for RCJ.
Capacity
15 The Tribunal must consider the issue of capacity as a precursor to the consideration of application for orders relating to an adult person.
16 Section 4 of the Guardianship and Administration Act 1990 (WA) ("the Act") states:
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- "(1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(2) ...
(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."
" ... 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 ... "
Evidence
18 In making its judgment about capacity of the represented persons, the Tribunal relied on the following documents.
19 With regard to AJ,reports were to hand from Dr HA, dated 2September 2005, and from LMcA, director of nursing, dated 8May2005. Dr HA considered AJ incapable of managing her financial affairs, her living situation and her personal health care. Nor could she make an EPA. Dr HA did not indicate a diagnosis but stated the results of a Mini Mental State Examination (MMSE) with a score of 21/30.
20 LMcA stated that "AJ had a cognitive impairment which [limited] Mrs [AJ's] ability to make reasoned decisions. She has been dependent on her son [RCJ] to manage her financial affairs for the past four years."
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21 BH, AJ's nephew, agreed that AJ was not capable of managing her finances and her son RCJ did not object.
22 With regard to RCJ, Dr JN's report of 27 August 2005, shows that he had seen him for a period of three months. His diagnosis has already been stated above as borderline intellectual functioning and agitated depression with anxiety with compulsive spending impulse control. RCJ's long-term prognosis is good. In referral letter to a Dr W, dated 31 March 005, Dr JN stated in part:
"RCJ is in a dire financial situation, as you are aware […]. To protect RCJ from further financial damage due to his incapacity to handle complex transactions and his compulsive spending, in discussion with his cousin, an application to the State Administrative Tribunal has been made. […] With some hindsight, if he had mental health service, especially social worker input in the past, he would have had lesser financial damage. Please refer him to the local mental health service."
23 In his report to the Perpetual trustees dated 6 June 2005, Dr NJ describes RCJ as depressed, as having extreme anxiety and unable to work.
24 KP, a Centrelink psychologist, in her undated report, assessed RCJ as of borderline intellectual functioning, "having difficulty with complex tasks and [tending] to become confused when information is difficult for him to deal with".
25 Evidence given by RCJ himself, his cousin BH and DW confirms RCJ's profligate spending. For example, he used a sum of $100 000 derived from an inheritance in the period of 10 months with no obvious assets to show for it. At the time of AJ moving into the nursing home and while RCJ was donee of AJ's EPA some $60 000 was outstanding in credit card debt. At the time of the hearing, some $10 000 in a credit card debt was still outstanding and a dental bill for work on his mother's teeth of $1000 had remained unpaid. Unpaid accounts to the nursing home had accumulated to some $13 000 before RCJ paid these from his own superannuation funds.
26 Until intervention by BH and DW in August 2004, neither RCJ nor AJ had an income and all costs of living were met from their estates. This occurred despite RCJ being appointed donee of his mother's EPA in April that year. BH, with assistance from DW were successful in their applications for Centrelink pensions for both.
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Findings
27 Upon this evidence, the Tribunal is satisfied that s 4 and s 64(1)(a) are met and that both AJ and RCJ are persons for whom an administration order could be made.
28 This evidence adversely reflects also on RCJ's capacity of fulfilling his obligations as a donee of his mother's EPA.
Need
29 The Tribunal can only make an order if the needs of the person in respect of whom an application is made could not, in the opinion of the Tribunal be met by other means less restrictive of the person's freedom of decision and action.
Evidence
30 The evidence as to the question of need is as follows.
31 It is obvious that the lives and finances of AJ and RCJ had been closely intertwined for some years. AJ had put her trust in RCJ, leading to the execution of the EPA with RCJ as donee, and RCJ had been her sole carer for a number of years prior to AJ moving into the nursing home.
32 With regard to AJ, LMcA, in her application, referred to her outstanding accommodation account, which placed AJ's residence at the nursing home at risk. In her report of 8 May 2005, she referred to RCJ's inability to manage AJ's finances.
33 BH, in his evidence at the hearing, mentioned unpaid accommodation fees having accumulated to $13 000 before being paid from RCJ's superannuation funds. Two debts were still outstanding, that is some $10 000 on a Westpac credit card and a $1000 dental bill. Further BH advocated that the burden of management of his mother's finances was too much for RCJ and detrimental to his health.
34 BH gave evidence that he was a witness to the EPA and has assisted with its execution. AJ had been insistent at the time that RCJ be the donee. Four months later, BH became aware of AJ and RCJ being in a financial crisis. AJ and RCJ had advanced $300 000 to property development company Magenta Nominees, which had subsequently been put into receivership. This fact occasioned AJ and RCJ to have to sell their property in Booragoon to clear their debts. RCJ then used some
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- $100 000 derived from an inheritance from an aunt, for "sustenance and other expenses for both himself and his mother within a remarkably short period of time" (transcript, page 12), a period of some 10 months. Until BH intervened with assistance of his friend DW from Perpetual Trustees, AJ nor RCJ had an income and were living off their assets. BH and DW subsequently succeeded in obtaining a Centrelink pension for both, a disability support pension for RCJ and an aged pension for AJ. During his time as EPA, donee RCJ had used some of his mother's funds to survive. RCJ had used much of his superannuation to clear his mother's, and his, debts and had only some $60 000 to $70 000 left in superannuation. BH was concerned that these funds and the remaining home at Bibra Lake, AJ's former residence and RCJ's present residence, was at risk. Further, BH was concerned that these complex affairs were putting RCJ at further risk of breakdown of his health. Their complexity, including investigation of the possibility of recovery of the amount invested with Magenta Nominees, required the management by the Public Trustee. In the event of appointment of the Public Trustee for RCJ, BH wished to continue to advocate for RCJ and for AJ. He proposed that he would like to see RCJ continue to manage some of his personal expenses.
35 All of the evidence heard and received by the Tribunal confirmed this situation for AJ and RCJ, with no opposing views expressed.
Findings
36 The Tribunal finds that there is a need to appoint administrators for both AJ and RCJ.
37 With regard to AJ, payment of her accommodation accounts has led to her increased vulnerability due to putting her accommodation placement at risk. Furthermore, she has incurred substantial debts. The management of her affairs also involves likely complex attempts at recovery of funds from a company in receivership.
38 With regard to RCJ, his health and wellbeing would be further at risk if an administrator were not appointed in the circumstances of his complex financial affairs and the difficulties he faces. He would also be at risk of losing his few remaining assets without such assistance.
Wishes of the represented person
39 The Tribunal is required "as far as possible, to seek to ascertain the views and wishes of the proposed represented person as expressed, in
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- whatever manner, at the time, or as gathered from the person's previous actions … ".
40 AJ's wishes were not known with regard to any of these matters. RCJ had no objection to the appointment of an administrator, namely the Public Trustee, for his mother's affairs. RCJ initially expressed reservations about the appointment of the Public Trustee as administrator of his estate but acquiesced in the knowledge that BH would be designated as a person that the Public Trustee should liaise with. Further, he was aware that under the powers of the proposed plenary order, the administrator could act flexibly in having RCJ manage part of his estate, depending on his abilities at the time.
Conclusion
41 It is not entirely clear to the Tribunal, which debts are RCJ's and which are his mother's, nor to what extent their finances are joint and separate. What is clear, is that AJ's and RCJ's finances and personal best interests have been closely intertwined, and that their best interests are in jeopardy.
42 Given evidence that neither AJ, nor RCJ, are capable of managing their finances, that the EPA has not been acted upon in a way that is in AJ's best interests; and in view of the complex and intertwined financial difficulties that both AJ and RCJ find themselves in, it is in their best interests that independent administrators are appointed for both.
Orders
43 In all these circumstances the Tribunal determined that there was a need to appoint administrators for AJ and RCJ and made the following orders.
44 In the matter of AJ:
1. The Public Trustee of 565 Hay Street Perth, be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. The enduring power of attorney dated 18 April 2004, by which AJ appointed RCJ to be her attorney be revoked.
3. The administrator is directed to liaise with BH with regard to the development of a management plan and its ongoing administration.
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- 4. This order is to be reviewed by 21 September 2010.
45 In the matter of RCJ:
1. The Public Trustee of 565 Hay Street Perth, be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. The administrator is directed to liaise with BH with regard to the development of a management plan and its ongoing administration.
3. This order is to be reviewed by 21 September 2010.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR E LEIPOLDT, SENIOR SESSIONAL MEMBER
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