LWL
[2008] WASAT 35
•14 FEBRUARY 2008
LWL [2008] WASAT 35
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 35 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1948/2007 | 8 NOVEMBER 2007 | |
| Coram: | MR J MANSVELD (MEMBER) MS J STANTON (SENIOR SESSIONAL MEMBER) MS V O'TOOLE (SESSIONAL MEMBER) | 13/02/08 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | An administrator is appointed A guardian is appointed | ||
| B | |||
| PDF Version |
| Parties: | LWL |
Catchwords: | Guardianship and administration Represented person unable to make reasonable judgments in respect of matters relating to all or any part of his estate Represented person in need of an administrator and guardian Remuneration of the administrator Decisions about treatment and health care must be made by a person with the relevant formal authority Role of the Public Advocate Meaning of de facto relationship and its relevance to s 119(3)(b) of the Guardianship and Administration Act 1990 (WA) Can a guardian initiate divorce proceedings on behalf of the represented person? |
Legislation: | Family Law Rules 2004 (Cth), Pt 6.3 Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1)(b), s 44, s 45, s 46, s 64(1)(a), s 68, s 71(1), s 71(2), s 72(3), s 74, s 80, s 97(1), s 117(1), s 119, Pt 8 Interpretation Act 1984 (WA), s 13A(3) Marriage Act 1961 (Cth) State Administrative Tribunal Act 2004 (WA), s 78 Trustee Companies Act 1997 (WA) |
Case References: | BTO [2004] WAGAB 2 FS [2007] WASAT 202 JGN and CEN [2006] WASAT 320 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LWL [2008] WASAT 35 MEMBER : MR J MANSVELD (MEMBER)
- MS J STANTON (SENIOR SESSIONAL MEMBER)
MS V O'TOOLE (SESSIONAL MEMBER)
- GAA 2116 of 2007
- Represented Person
Catchwords:
Guardianship and administration - Represented person unable to make reasonable judgments in respect of matters relating to all or any part of his estate - Represented person in need of an administrator and guardian - Remuneration of the administrator -Decisions about treatment and health care must be made by a person with the relevant formal authority - Role of the Public Advocate - Meaning of de facto relationship and its relevance to s 119(3)(b) of the Guardianship and Administration Act 1990 (WA) - Can a guardian initiate divorce proceedings on behalf of the represented person?
Legislation:
Family Law Rules 2004 (Cth), Pt 6.3
(Page 2)
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1)(b), s 44, s 45, s 46, s 64(1)(a), s 68, s 71(1), s 71(2), s 72(3), s 74, s 80, s 97(1), s 117(1), s 119, Pt 8
Interpretation Act 1984 (WA), s 13A(3)
Marriage Act 1961 (Cth)
State Administrative Tribunal Act 2004 (WA), s 78
Trustee Companies Act 1997 (WA)
Result:
An administrator is appointed
A guardian is appointed
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
BTO [2004] WAGAB 2
FS [2007] WASAT 202
JGN and CEN [2006] WASAT 320
(Page 3)
Summary of Tribunal's decision
1 Applications for guardianship and administration were made for a 73-year-old man who had suffered two strokes.
2 The man had a large estate which included a property development. The development had stalled as the project manager owed $400 000 to the man's private company. Progress payments to contractors were unpaid and concerns were raised that building on the development was in jeopardy.
3 The property development had to be dealt with urgently and would likely require legal action.
4 The man's son and daughter proposed themselves as sole administrators. The son said he would not act jointly with his sister.
5 The man's partner proposed that she be appointed to act jointly with the man's accountant. The accountant consented to act with her but not with the man's son or daughter.
6 The Tribunal decided to appoint the man's partner and accountant as his joint plenary administrators. This was the recommendation of the Public Advocate who attended the hearing in her statutory role of advancing the man's best interests.
7 The Tribunal decided that the urgency of the situation with the property development required the business and financial experience of the accountant and accepted that the accountant was held in high regard and trust by the man. The accountant had provided accounting, taxation and business advice to the man for 12 years.
8 Although a concern had been raised about the inexperience of the man's partner in complex business matters, the Tribunal was satisfied that she could act jointly with the accountant.
9 The man's partner was appointed his limited guardian to continue to make his treatment and health care decisions.
10 The man's son was appointed his limited guardian to seek legal advice as to whether it was possible to initiate divorce proceedings against the person with whom he was still legally married but from whom he was separated.
(Page 4)
Background
11 These reasons relate to applications for administration and guardianship for LWL (represented person), a 73-year-old man who suffered a stroke in September 2007 and a further stroke in November 2007.
12 The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
13 The applications have been made by MYP, the represented person's partner.
14 The hearing for the applications was held on 8 November 2007. The represented person was not able to attend given the effects of the most recent stroke. At the time of the hearing he was a patient in a local hospital.
15 Doctor MD, a specialist in geriatric medicine, gave evidence. The hearing was also attended by MYP, SAL (daughter of the represented person), MIL (son of the represented person) and his spouse, RGL (brother of the represented person), JS (solicitor appointed on behalf of the represented person's private company), BP (the represented person's accountant), JK (friend of the represented person), and representatives of the Public Advocate and Public Trustee.
16 The Tribunal decided to appoint MYP and BP as the joint plenary administrators of the represented person's estate. The appointment is set for review in 18 months.
17 The Tribunal reserved its decision in respect of the application for guardianship but has now determined the application in the following manner.
18 MYP is appointed the represented person's limited guardian to consent to his treatment and health care.
19 MIL is appointed limited guardian with the function of seeking legal advice on behalf of the represented person in relation to whether divorce proceedings can be initiated against the represented person's spouse to whom he is still legally married but from whom he is separated. MIL is directed to seek directions from the Tribunal pursuant to s 74 of the GA Act once the legal advice has been obtained.
(Page 5)
20 The guardianship orders are set to be reviewed with the order for administration.
21 These reasons are provided pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).
The role of the Public Advocate
22 The GA Act establishes the office of the Public Advocate (see Pt 8 of the GA Act).
23 The Public Advocate is a public officer appointed by the Governor and is independent of the Tribunal.
24 Under s 97(1) of the GA Act, the Tribunal can refer any matter or question to the Public Advocate in respect of hearings before the Tribunal. The Public Advocate must seek to advance the best interests of the person who is the subject of the proceedings and to present to the Tribunal any information in her possession that is relevant to the hearing.
25 On 15 October 2007, the Tribunal referred the application for the appointment of an administrator of the represented person's estate to the Public Advocate, and asked that she investigate and report on whether the represented person was in need of an administrator, and if so, who should be appointed.
26 The Public Advocate provided a written report to the Tribunal on 2 November 2007 and attended the hearing on 8 November 2007.
Principles of the GA Act
27 The principles to be observed by the Tribunal in dealing with proceedings commenced under the GA Act are set out in s 4 of that Act.
"(1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(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 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."
The represented person's capacity (evidence and submissions)
28 The Tribunal has a report from Dr NW, advanced trainee in geriatric medicine, completed on 5 October 2007, soon after the stroke on 13 September 2007.
(Page 7)
29 In that report, Dr NW states that the represented person suffered a "lacunar stroke" which resulted in him experiencing poor judgment, orientation, calculation, construction and memory.
30 At the time, Dr NW suspected that the represented person had a pre-existing syndrome, which was exposed by the stroke. He states that the represented person had memory impairment of 12 months' duration.
31 At the time of his report, Dr NW was of the opinion that the represented person was not able to make reasonable decisions about his personal health care, his living situation (routine household decisions and accommodation issues) and his financial affairs. The represented person thought that his property was worth $1000, didn't know how he would access money, couldn't calculate and couldn't advise the details of complex financial situations.
32 Dr NW was of the view that the represented person was unable to make any contribution to a hearing but that there may be improvement in his mental state in four to six weeks.
33 Dr MD, specialist in geriatric medicine, attended the hearing. He states that the represented person suffered another stroke three to four days prior to the hearing.
"So whilst he was very disabled with a left-sided weakness and some difficulties with speech, he is now very impaired with marked difficulty with speech and communication and also with swallowing problems, together with his persisting left-sided weakness. So he's really become very - very disabled." (T:5)
34 Dr MD states that whilst the represented person can perform single-stage and two-stage commands, he is not able to express himself intelligibly. He is not certain that the represented person understands what his expenses and bills are on a regular basis, or that he knows all of his obligations. The represented person does not have precise insight into his disabilities.
35 Dr MD is of the view that the represented person cannot give clear instructions to his lawyer.
36 Dr MD says that he is not confident that the represented person will show a dramatic response to therapy; however, "time will tell".
(Page 8)
37 Dr MD has also assessed the ability of the represented person to express his wishes, and this is detailed later in these reasons.
38 There is no dispute that the represented person is unable to make personal and financial decisions for himself. There is, however, some contention about the extent of his capacity between the first and second strokes and reliability or validity of the wishes he may have expressed during that time.
The application for administration (the represented person's capacity)
39 Before the Tribunal can consider whether the represented person is in need of an administrator, it must first be satisfied that he is suffering from a mental disability, as a consequence of which he is unable to make reasonable judgments relating to all or any part of his estate (s 64(1)(a) of the GA Act).
40 A "mental disability" is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
41 A person is presumed to be capable of making reasonable judgments in respect of matters relating to his estate unless the contrary is proved to the satisfaction of the Tribunal (s 4(2)(a)(iv) of the GA Act - see above).
42 The meaning of s 64(1)(a) of the GA Act was considered by the Full Tribunal in FS [2007] WASAT 202 at [99] [110]. It was found that the operation of s 64(1)(a) requires the Tribunal to:
"… consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances." (at [110])
43 The Tribunal relies mainly on the evidence of Dr MD, which is not in dispute, that the represented person cannot communicate intelligibly and lacks understanding and insight. It is more likely than not that the represented person continues to suffer the effects of the first stroke (having suffered a second) as detailed by Dr NW in his report, and which includes poor memory, judgment and orientation and an inability to calculate.
(Page 9)
44 The Tribunal is satisfied that the represented person suffers from a mental disability - that being the acquired brain injury resulting from the two strokes.
45 The Tribunal is also satisfied that, as a consequence of the brain injury, the represented person is currently unable to engage in the cognitive process that would enable him to make reasonable judgments in respect of matters relating to all of his estate. As detailed later in these reasons, the represented person's estate is not a simple one; it currently includes a stalled property development in which it is alleged the project manager has become indebted to the represented person's private company and which requires investigation, negotiation and possible legal action.
The need for an administrator and who should be appointed (evidence and submissions)
The applicant (MYP)
46 In her written application to the Tribunal, MYP, who describes herself as the represented person's "spouse" and "partner" (the represented person is legally married to another woman but reportedly separated from her (see below)), states that there is conflict between the represented person's son, MIL, herself and the represented person over financial issues. She has attempted to resolve the conflict but has been unsuccessful.
47 In her application, MYP proposes that the "usual accountant, lawyer [and] financial advisor" or herself and the represented person's accountant, BP, be appointed the represented person's administrators.
48 In her oral evidence, MYP states that she and the represented person have been in a relationship for about three and a half years. She says that the represented person was about to take action to divorce his wife (she said he had an appointment with a lawyer for this purpose on the day he suffered the first stroke).
49 MYP says that that she has been involved at times in the represented person's business decision-making. She would do all his telephoning and go with him to meet business people (she would drive him to appointments). The represented person would discuss some business matters with her or ask for her opinion.
50 MYP says that the represented person has a residential property which is unencumbered, two properties in the same suburb that he wishes to sell and a property development which he initially wanted to sell but then decided he
(Page 10)
- would rent because of the state of the rental market.
51 MYP says that the represented person had wanted to sell his place of residence and had received an offer which he had ultimately rejected. The represented person had said to her:
"… what we could do is, we can even rent out [the residence] so that's another income for us so" - and I said we won't touch the super and we'll get the money from [the property development], so this is how it was last discussed." (T: 43)
52 MYP says she owns her own home. She has a small business from which she derives an income. The represented person has built a "granny flat" on MYP's property and it has been their dream that at a suitable time that they will live there together. MYP says she still wants it to be so.
53 In her oral evidence, MYP proposes that she and the represented person's accountant, BP, be appointed joint administrators. She will not contemplate proposing herself solely.
54 MYP says that the represented person has told her that he does not want to have much to do with his daughter, SAL. He did not want her to come to Perth when he was sick as she always caused "mischief" and he has had to give her money. She is not capable of managing her own finances and has always depended on other people. She used to "drink a lot".
The daughter (SAL)
55 In response to MYP's evidence about what the represented person allegedly said about her, SAL states that for many years the represented person would contact her and ask her to come to Perth for Christmas. He would pay for the airfare and she would support herself whilst in Perth.
56 As for her "drinking", that was a problem in her past that she has now overcome. She says she had anticipated the issue arising at the hearing and has provided the Tribunal with a report from her general practitioner who states that she is in good physical health and is not suffering from a mental illness, anxiety or any stress-related condition.
57 SAL has provided a written submission to the Tribunal which includes her curriculum vitae and a number of character references.
(Page 11)
- Her submission is that the administration of the represented person's estate should remain "within the family" and that she is the most suitable person to take on that role.
58 SAL says that she has ample experience, having previously been a director of the represented person's private company for approximately 20 years. For a time, she had cheque signing rights on the represented person's bank account and the authority to deal with lawyers, accountants and the Australian Taxation Office.
59 Her working association with the represented person commenced when she was 13 years old, and continued on and off for a period of 38 years "when the situation presented itself."
60 SAL says that she has managed caravan parks for the represented person (her curriculum vitae shows this to be from 1975 to 1980), managed a freight company of his, and managed the represented person's liquor store from 1983 to 1986 (and for the new owner from 1986 to 1989). The latter had a turnover of about $500 000 when she started and $2 000 000 by the time she resigned.
61 Whilst managing a vacation village (1995 to 1996), she also managed the strata affairs of that complex (the park had about 200 strata titled sites).
62 SAL submits that MYP does not have the business experience to be the represented person's administrator but accepts that she "… has been a constant and affectionate carer for my Father during his illness and the lead up to the stroke".
63 SAL also submits that her brother, MIL, is not suitable to act on the represented person's behalf. He is an insulin-dependant diabetic and has his own earthmoving business. SAL states that MIL has recently informed her that he has pegged some mining leases and is intending to return to prospecting for gold.
64 SAL says that MIL has worked with the represented person very briefly and "… up until a few months ago had not been on speaking terms with him due to a dispute that they had".
65 SAL states in her written submission that her younger brother, who lives in a nursing home and needs 24hour care, requires financial support from the family and that the represented person fulfilled that role until he became ill. SAL submits that provision from the represented person's estate should be made for her brother's particular needs
(Page 12)
- (MIL suggests $3000 to $4000 a year and this is supported by SAL).
66 In her oral evidence, SAL adds that since her direct experience in the represented person's financial affairs (which she said ended in the mid 1990s when she resigned to do other things and the represented person reduced his business interests to the buying and selling of real estate), she has conversed with him regularly by telephone and therefore knows how he thinks in respect of business matters.
67 SAL says that she has no current commitments (unlike MIL) and would move to Perth to undertake the role of the represented person's administrator if appointed. She proposes herself as sole administrator but will consent to joint administration with the represented person's brother, RGL, or with BP, the represented person's accountant. She also proposes herself jointly with her brother, MIL, but says that he has clearly stated he will not work with her. She will not consent to act jointly with MYP.
68 SAL questions the proposal that MYP and BP be appointed as the represented person's joint administrators. She says that MYP spends all of her time visiting the represented person at the hospital and BP "has his own office to run". She submits that an administrator should be available "on the ground" to undertake the day-to-day tasks on, for example, the site of the property development.
The son (MIL)
69 MIL says in his oral evidence that although SAL was a director of the represented person's private company, it was not she who had made "big decisions about millions of dollars". He submits that SAL was appointed a director because of the statutory requirements in respect of companies.
70 MIL says that he is familiar with the represented person's affairs because the represented person has discussed his business affairs with him in detail. Although there are "… some pretty untidy things at the moment [that] need cleaning up …" there is not a large day-to-day business to operate and he knows what the represented person owns and what he wants to sell.
71 In respect of the "untidy things", MIL adds that he is referring to the problems with the property development (see the evidence of JS below), but otherwise for the represented person's estate:
(Page 13)
- "It's not a big job of running a major business. There's [sic] a few bills to pay such as the main ones would be water rates, land tax - well land taxes, shire rates for the properties he's got and you know, the odd bills, electricity bills and stuff and the rest of it is making a few decisions about the few properties he wants to sell and the ones he wants to keep and rent out." (T:34)
72 MIL says that the represented person has a large sum in a superannuation fund that is managed by the Commonwealth Bank, and which the represented person wants to retain and grow.
73 MIL says that he has had a very good relationship with the represented person over the last number of years even though he and the represented person had a dispute over an issue for a few months last year. He has been in constant contact with the represented person, and the represented person has expressed that he would want MIL to manage his affairs.
74 MIL submits that the represented person made a sufficient recovery after the first stroke (and before the second stroke) to express his wishes.
75 MIL says that in the early 1980s he became bankrupt but that it was later "annulled", so "… you do not have to declare that".
76 MIL proposes himself as sole administrator for the represented person but will act jointly with BP, the represented person's accountant (he states that if he were appointed administrator, he would be happy for BP to remain the represented person's accountant). MIL prefers a sole appointment because:
"… I have got a business and a family and like I say, where I live, and I don't want to be running up here and on the phone all the time to get another signature on a cheque or to make a decision when I am capable of doing it anyway." (T:37)
77 MIL will not consent to act jointly with SAL.
The brother (RGL)
78 RGL submits that SAL is the most appropriate person to be appointed the represented person's administrator because of the fact that she was left in sole charge of his business when he took his third wife overseas for an extended holiday. The represented person has always been a "one man band" but he left SAL in "… full charge, which I was amazed at".
(Page 14)
79 RGL submits that SAL is extremely able and that there is no question that the represented person would trust his business to his eldest daughter.
80 RGL states in respect of MYP:
"Now, I have the utmost respect for [MYP] who has looked after my brother diligently, but I'm not sure of her business ability …" (T:37)
The solicitor (JS)
81 JS says that his involvement with the represented person and his private company commenced on 7 September 2007 when he received instructions through BP, the represented person's accountant.
82 The instructions followed BP's receipt of a letter from a project manager engaged by the represented person to administer a property development in which there is an acknowledged indebtedness to the represented person's company for a substantial sum of money (approximately $400 000).
83 JS says he arranged to meet with the represented person and BP on 11 September 2007. However, the meeting was postponed until 13 September 2007, at which time he was informed that the represented person had suffered a stroke.
84 A week later, JS says he went to the hospital to meet with the represented person, BP and MYP. He was advised then that the represented person had sustained some cognitive impairment, and on 5 October 2007, was further advised by a specialist medical practitioner that the represented person was not capable of instructing solicitors, appointing an attorney or appointing an alternate director for his private company.
85 JS states:
"… but [the represented person] did express, for what it's worth, on 20 September, that he wanted to appoint [BP] and [MYP] as joint attorneys. His instructions to [BP] were, "Well, [BP], you do whatever you think is appropriate." (T: 39)
86 JS submits that the represented person's estate is not the simple state of affairs initially characterised by MIL (but see the evidence of MIL above). In respect of the property development, it might be necessary to take legal action on behalf of the represented person's private company.
(Page 15)
- There is also the problem of the ongoing management of the building contracts and unmet progress claims of about $200 000 which could lead to a suspension of works. In that regard, JS says that he has recommended to BP that letters be sent to all people who have made creditor's claims advising of the represented person's incapacity, and advising of the current difficulty with the private company given that the represented person is the sole director and the sole holder of shares with voting rights attached.
87 JS submits that an administrator needs to be urgently appointed to take control of the shares of the private company, appoint a director and instruct his legal firm to progress the issues with the property development (the Memorandum and Articles of Association of the private company state at cl 21(b) that the office of director shall be vacated "if he become [sic] of unsound mind or is permanently incapacitated from performing his duties.")
88 As to the involvement of SAL, the represented person's daughter, in his business affairs, JS says he is not able to make a submission about the matter but has searched the records of the represented person's private company and has established that she was the company secretary from 3 March 1993 to 3 July 1996 and a director from 14 December 1991 to 3 July 1996. The represented person's son, MIL, has never been an officer of the company.
89 JS submits that BP should continue to be involved in the represented person's financial affairs. He states:
"It makes sense, to me at least, that [BP] should have some involvement in the administration of [the represented person]'s affairs. [BP] says that he has been involved in [the represented person]'s financial affairs for 12 years. At least on the occasion when I met with [the represented person] on 20 September, he certainly indicated that there is - he reposes a high degree of trust and confidence in [BP]. So I guess there are different capacities in which [BP] may be considered to be involved but it would make sense to that having been involved for 12 years in the business affairs, that [sic] he have some role. Whether that be as joint plenary administrator or that is - an alternative person were to be appointed as a plenary administrator, that there be some direction as to engaging [BP]'s firm to be involved in the administration of [the represented person]'s affairs." (T:41)
(Page 16)
The friend (JK)
90 JK says that he has known the represented person for a considerable amount of time, and in recent years, fairly intimately. JS submits that the represented person has been steadfast in his view that he does not want his daughter, SAL, to administer his affairs. The represented person has told him this alone and also with MYP present, and he says this is confirmation of what MYP has told the Tribunal.
The accountant (BP)
91 BP says that he has been the represented person's accountant for about 12 years.
92 He characterises his role as follows:
"… In that time, we've assisted him in decision-making, dealing with his compliance work, with his tax and accounting work, and various issues. I guess when there was a matter comes up [sic], when he was selling his caravan park up in [north-west town], when he was selling his caravan park, we'd give advice. Sometimes he would act independent[ly] of that advice and I think that this deal that created a bit of a pickle as well is [sic] things where he's got involved with trusting somebody, but our role was he would come to us for - when he needed help with things, or we would basically go and chase him when he needed to do certain things, meet his tax obligations and company register obligations." (T:23)
93 In a written advice to the Public Advocate, BP states that there are a number of entities used by the represented person; two private companies controlled by him and a property trust, the latter not having been used for several years. The represented person would transfer funds between the entities as he saw fit.
94 BP says that as far as he is aware, he has been appointed as joint executor with the represented person's former lawyer, of the most recent will of the represented person.
95 BP proposes that he be appointed administrator of the represented person's estate, jointly with MYP. He will not consent to act jointly with either SAL or MIL.
96 In a written submission to the Tribunal, BP states that he is a chartered accountant, registered tax agent and holds a Bachelor of Business. His accounting practice employs 16 staff. As well, he has ownership interests in three other
(Page 17)
- businesses which have a combined turnover of more than $30 000 000 and employ in excess of 100 employees.
97 BP submits that he has experience in managing his clients' financial affairs whilst they have been travelling or otherwise unable to deal with their affairs. He has a staff of people who would be able to assist him in carrying out the role of administrator, if required.
98 BP states that he would not anticipate his fees to exceed $1000 a month for carrying out the role of the represented person's administrator.
The Public Trustee
99 The Public Trustee states that if he were appointed the represented person's administrator, it would not be possible for any of his officers to be appointed a director of the private company (see the evidence of JS above for the need to have a director appointed).
100 To overcome this problem, the Public Trustee submits:
"Certainly, based on what we've heard today, if we were to be appointed, we would consider the appointment of the accountant as a director." (T:45)
The Public Advocate
101 The Public Advocate provided a written report to the Tribunal and attended the hearing.
102 In her written report, the Public Advocate describes the represented person's estate as consisting of a residential property (where the represented person lives), two other residential properties, the property development, a motor vehicle and bank funds of $382 107.91. There is a direct debit arrangement through the bank of a $20 000 loan repayment to the represented person's property trust. The represented person receives $18 000 a month from his superannuation fund.
103 This information was given to the Public Advocate by MYP and by BP.
104 The represented person was interviewed by the Public Advocate on 20 October 2007. At that interview, he clearly stated that he wanted to be discharged from hospital and return home, and that he wanted to continue to
(Page 18)
- manage his own affairs. When it was put to him that someone may need to be appointed to manage his affairs, the represented person said he would choose MIL (although in her written report, the Public Advocate stated that he said he would choose MIL and BP).
105 When asked about SAL, the represented person is reported to have said that he did not want her to have anything to do with his financial affairs.
106 The Public Advocate states that MYP was at the interview on 20 October 2007 and when she asked the represented person whether she should be involved with MIL and BP, the represented person is reported to have said "yes".
107 The Public Advocate submits that the represented person's apparent indecision on the subject of who he would want to manage his affairs, might mean that not much weight can be placed on his wishes. She refers to the evidence of Dr MD in this regard (see The represented person's wishes below).
108 The Public Advocate expresses concern at the conflict in the represented person's family in respect of who should be appointed his administrator, and that it "… makes it very difficult for anyone to be able to recommend a particular person".
109 The Public Advocate submits that appointing the Public Trustee might subject the represented person to significant fees, especially if the administrator's role includes the sale of real estate. She concludes by stating:
"… So I'm probably more drawn to considering recommending the appointment of [BP] and the joint appointment of [MYP]. I do understand that she has information about the estate and probably hasn't got a great deal of experience about dealing with those matters, but I'm very much encouraged by the fact that she is very forthright and she's willing to seek professional advice when needed.
I'm very mindful that if both are considered as joint appointments, that [sic] we have two family members who appear to be excluded somewhat[,] and I would perhaps maybe suggest to the Tribunal to consider that perhaps maybe a set of accounts be provided to both [SAL] and to [MIL] so that they have some understanding of what is occurring with their father's estate[,] and I would be supporting that an order
(Page 19)
- be made for one year and that the order be reviewed at that time." (T:47)
The represented person's wishes
110 In respect of the represented person's wishes Dr MD states:
"Well, as I said, he vacillated. He would say one name, he could say '[MIL]', then he would say '[MYP]' and then when I asked him, 'I'm not clear, which do you mean?' he tended, I have to say, to default to [MYP], but he seemed to be making some difference in terms of how he understood, for example, his building projects to be completed and I think he was saying that this would be a sort of man's job, 'but in terms of my personal care and needs, it would be [MYP]', but he did vacillate. He changed his - he didn't seem to be able to give a clear, consistent opinion as to which task he wanted which person to do." (T:9)
111 MYP, JK and the Public Advocate all state that the represented person has told them directly (to the Public Advocate after the first stroke) that he does not want his daughter, SAL, to have anything to do with his financial affairs.
112 The Public Advocate states that the represented person named MIL, MYP and BP as the persons he would have managing his affairs, but questions the weight that should be given to his wishes that were stated after the first stroke, given the assessment of Dr MD.
113 JS submits that the represented person's wishes were expressed by him on 20 September 2007 (a week after the first stroke) that he wants BP and MYP to act jointly to manage his affairs. JS further submits that BP being appointed the joint executor of the represented person's last known will also demonstrates the trust he has placed in his accountant.
114 SAL says that in respect of the represented person nominating MIL and MYP, she has noticed over a period of a year that "… what he sees in front of him is what is in his mind at the time". She also says that in her experience, the represented person had become very forgetful and that he has changed his mind on a regular basis.
115 MIL states that the represented person expressed a wish for him to manage his financial affairs.
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116 The brother of the represented person, RGL, submits that the represented person would trust his business to his eldest daughter, SAL.
The need for an administrator (the decision of the Tribunal)
117 There is common ground that the represented person is in need of an administrator of his estate. He has significant assets and in particular he has a stalled property development which, prior to his strokes, he was managing through a private company of which he is a director and the shareholder with majority voting rights.
118 Because of his incapacity, the represented person is unable to act as a director of his private company or exercise his voting rights as shareholder. From the evidence, it appears that the property development is at risk unless decisions are quickly made in respect of the indebtedness of the project manager, the payment of progress payments to contractors and otherwise sustaining the project to its completion. This will likely require the obtaining of legal advice and possible legal representation.
119 The represented person has an income from a superannuation fund which must be managed in his best interests and decisions must be made about what care he will need, the cost of that care and how it is to be funded. The financial aspects of these decisions are properly the role of an appointed administrator.
120 The represented person is still legally married to a woman with whom he lived for a short time and who has returned to live in Japan. There is evidence that, prior to his stroke, the represented person was contemplating initiating divorce proceedings (see Guardianship below). If this matter is pursued, then it is the task of an administrator to negotiate and, if appropriate, to agree to a property settlement.
121 The matters described are not able to be undertaken informally. An administration order with the requisite authority is required. The Tribunal is satisfied that the represented person is in need of an administrator.
122 The wish of the represented person to continue to manage his own estate (as expressed to the Public Advocate after the first stroke but before the second stroke), is no longer possible; as he is incapable of doing so.
123 The administrator requires plenary authority so that all aspects of the represented person's estate can be managed (s 71(1) and s 71(2) of the GA Act).
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124 The matter of the ongoing financial support of the represented person's son, who resides in a nursing home, has been raised by SAL, and is supported by both MIL and MYP.
125 The Tribunal is satisfied that the represented person would have continued to financially support his son had he the capacity to do so.
126 The Tribunal will authorise the administrators to expend up to a total amount of $4000 per annum for the comforts of the represented person's son pursuant to s 72(3) of the GA Act, which enables payments or dispositions of a charitable, benevolent or ex gratia nature to be made with the approval of the Tribunal.
127 The amount of $4000 is that which has been proposed by MIL (and supported by SAL). It is affordable by the represented person's estate and is reasonable in the circumstances of the son's residency in a nursing home.
Who should be appointed as the represented person's administrator (the decision of the Tribunal)
128 The question before the Tribunal that is the most contested is who should be appointed the represented person's administrator.
129 The primary concern of the Tribunal is the best interests of a represented person (s 4(2)(a) of the GA Act).
130 As to who should be appointed as administrator, the Tribunal is guided by the provisions of s 68 of the GA Act.
131 The proposed administrator must be at least 18 years of age (or a corporate trustee, which includes the Public Trustee), who has consented to act and who, in the opinion of the Tribunal, will act in the best interests of the represented person and is otherwise suitable to act as the administrator of the estate of that person (s 68(1)).
132 To determine the suitability of the proposed administrator, the Tribunal shall take into account, as far as is possible, the compatibility of the proposed administrator with the represented person and the guardian (if any) of that person; the wishes of the represented person and whether the proposed administrator will be able to perform the functions vested in him or her (s 68(3)).
133 The Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1997 (WA) (which does not include the Public Trustee), unless it is satisfied that there is an
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- individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of the trustee company; or the represented person has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment (s 68(2)).
134 The fact that a person is the guardian of a person does not disqualify him or her from being appointed as the administrator of the estate of that person (s 68(4)).
135 Except where she is appointed to act jointly with another person or persons, the Tribunal shall not appoint the Public Advocate as administrator unless there is no other individual or corporate trustee who is suitable and willing to act (s 68(5)).
136 After hearing all the submissions regarding proposals for the appointment of an administrator, the Tribunal has decided that it is in the represented person's best interests to appoint BP and MYP as the joint plenary administrators of his estate.
137 The Tribunal accepts the submission that BP is held in high regard and trust by the represented person, and that this has been demonstrated by the represented person's actions. BP has provided accounting, taxation and business advice to the represented person for 12 years.
138 The Tribunal is of the view that, at this crucial point in the represented person's business affairs, the business and financial expertise of BP is of critical importance, especially in relation to the problems being experienced with the property development, the viability of which is open to some doubt (there is also the complication associated with a possible property settlement with the represented person's spouse). The Tribunal has given some weight to the fact that the represented person, in an attempt, no doubt, to begin to address the issues with the property development, intended to bring BP with him when he was to meet with JS, the solicitor. This is consistent with the practice stated by BP, and which the Tribunal accepts, that although the represented person made his own decisions, he would seek the financial advice of BP when issues arose from time to time. The concern with the property development is just such an issue, is complex and requires urgent attention.
139 It might be, as MIL asserts, that once the matter of the property development is dealt with, the represented person's estate, although of significant monetary value, will become essentially one of stable property management.
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- However, from the evidence before the Tribunal, this is clearly not the situation that currently exists.
140 BP says that he will not act alone and will only act jointly with MYP. Although a question has been raised about the inexperience of MYP in complex business matters, the Tribunal is satisfied that she can act jointly with BP. It is accepted by all parties that MYP is the partner of the represented person (despite his marriage to another person) and that she has his best interests at heart. The question of the represented person's care - whether that can be given at home or is required in an aged care facility - involves decisions that have potentially significant financial implications. Given her relationship with the represented person, MYP will be able bring her understanding of his needs and wishes to the role.
141 The Tribunal accepts that the wish of the represented person has been that SAL not be involved in the management of his financial affairs. It would appear that the wish had been expressed consistently to different parties both before and after the stroke. Although not determinative of the Tribunal's decision, the wish of the represented person, expressed as it has been in respect of SAL, has been given significant weight by the Tribunal. This is not intended to convey a judgment on the ability of SAL to act as administrator; however, the Tribunal determined the need for BP to act in the represented person's current circumstances and he will not consent to act with SAL. This fact, together with the represented person's wishes, precludes her appointment.
142 In respect of the submission of MIL that he be appointed administrator, the Tribunal, again noting the need to appoint BP, is faced with the situation that BP will not consent to act with MIL. Whatever the reason for this, the Tribunal could not appoint MIL, even with his proposal that BP be retained as the represented person's accountant, because the urgency of the work to be done requires the relevant people to be able to work together immediately, in particular to deal with the stalled property development.
143 SAL has raised concerns about the ability of MIL to undertake the role of administrator and has mentioned his health, business commitments and distance from the represented person's business interests as inhibiting factors (which MIL refutes). The Tribunal has given some weight to these concerns but only in the context of the need to act quickly on the property development.
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144 The Tribunal has determined that the wishes of the represented person are respected in the decision to appoint BP and MYP as joint administrators of his estate. Dr MD has said in his evidence that the represented person would default to MYP when asked about the person whom he would want to manage his finances; however, in respect of his building projects, he seemed to be saying they would be a "man's job". The appointment of BP and MYP is not inconsistent with what the represented person expressed, even though he also nominated MIL.
145 The Public Advocate proposes that should SAL and MIL not be appointed as administrators for the represented person, they be given, in recognition of their ongoing interest in his estate, a copy of any accounts that the administrators must submit to the Public Trustee pursuant to s 80 of the GA Act.
146 The Tribunal agrees with this proposal and will so order.
147 The Tribunal has decided to set a review of the order for administration in 18 months. It might be by then that some of the complexity has been removed from the represented person's estate and a different arrangement for decision-making proposed and considered.
Remuneration for BP in his role as joint administrator
148 BP, in his role as joint administrator, will be acting in a professional capacity and is seeking to be paid for his work (MYP is not seeking remuneration). BP has submitted that his fees for the tasks of administration (excluding the other work he would normally do for the represented person such as income taxation) will not exceed $1000 a month.
149 Section 117(1) of the GA Act provides that the Tribunal may fix remuneration or a rate of remuneration and order that it 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 (for an exploration of the meaning of "size or complexity" see JGN and CEN [2006] WASAT 320).
150 The Tribunal is satisfied that the represented person's estate (as it currently presents) is large and sufficiently complex to warrant remuneration to be paid to BP. The complexity relates principally to the property development which has been discussed earlier in these reasons.
(Page 25)
151 The Tribunal accepts the proposal by BP that he be remunerated from the estate of the represented person to an amount not exceeding $12 000 per annum.
The application for guardianship (the represented person's capacity)
152 Before the Tribunal can consider whether the represented person is in need of a guardian, it must first be satisfied that he is incapable of looking after his own health and safety; unable to make reasonable judgments in respect of matters relating to his person; or in need of oversight, care and control in the interests of his own health and safety or for the protection of others (s 43(1)(b) of the GA Act).
153 The represented person is presumed to be capable of looking after his own health and safety and making reasonable judgments in respect of matters relating to his person until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b) of the GA Act).
154 The Tribunal is satisfied on the evidence (see The represented person's capacity (evidence and submissions) above) that the represented person satisfies all the limbs of s 43(1)(b) of the GA Act and is a person for whom a guardianship order could be made.
155 There is no dispute to this finding from any of the parties present at the hearing.
The need for a guardian and who should be appointed (evidence and submissions
156 At the hearing, there was general agreement between MYP, SAL and MIL on a number of the represented person's personal matters.
157 In respect of the represented person's future accommodation, that everything possible should be done to enable him to be cared for at his home and to use his financial resources for that purpose. SAL puts it this way:
"And I think, you know, I think [MYP] is the best person to care for him because she is there with him, all the time, constantly, so she has more contact with the nursing staff, doctors, et cetera. I also know that [MIL] and I - I'm sure I speak for [MIL], we both agree that [MYP] has cared for my father above and beyond the normal duty care and I think - and I know that she would not allow him to go into a home and I know that there's enough money in his estate to provide nursing care because she wouldn't
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- be able to look after him in a full capacity if he does go home. He's going to need, we presume, nursing care, so there is enough money in the estate and that is a concern of mine, that the money would be issued for that care, at whatever cost. Because the money's his, he's made it, let's care for him in the way that he would wish to be cared for." (T:61:62)
158 Regarding the treatment and health care decisions that will need to be made for the represented person, that MYP continue to make those decisions, and that she inform SAL and MIL about the represented person's ongoing care needs and medical intervention.
159 As earlier mentioned in these reasons, the represented person is still legally married to a Japanese woman who, according to RGL, has returned to live in Japan. RGL states:
"Well, I do know it's urgent because the person has left Australia, does not live in Australia, but [the represented person] didn't want to live in Japan and their marriage was a matter of weeks and she is hanging over the family's heads, in the sense of she rings up and wants some money and so on. So I think it's got to be cleared up. It's just a bit sad that it's got to be made by a - by an agent." (T:69)
160 Both MIL and SAL state that the represented person has told them individually that he would be seeking a divorce from his spouse; SAL says that she was told by the represented person several weeks before he suffered his first stroke.
161 MYP says that on the day of the first stroke, she and the represented person had an appointment to see a solicitor about the intended divorce action.
162 It is the understanding of MYP, SAL and MIL that the represented person does not currently provide his spouse with financial support.
163 RGL submits that were a guardian to be appointed to deal with the divorce, it should not be MYP because "… it would be a bit tricky for [MYP] to be that person". RGL says he proposes SAL to be the represented person's guardian.
164 MIL says he will consent to be the represented person's guardian for that purpose.
(Page 27)
The need for a guardian and who should be appointed (the decision of the Tribunal)
165 Under s 4(2)(c) of the GA Act, the Tribunal shall not make a guardianship (or administration) order if the needs of the person could, in the Tribunal's opinion, be met by other means less restrictive of the person's freedom of decision and action.
166 As to who should be appointed guardian, the Tribunal is guided by the provisions of s 44 of the GA Act. The proposed guardian must be at least 18 years of age, who has consented to act and who, in the opinion of the Tribunal, will act in the best interests of the represented person; is not in a position where his or her interests conflict or may conflict with the person's interests, and is otherwise suitable to act as the person's guardian.
167 To decide the suitability of the proposed guardian, the Tribunal shall take into account as far as is possible, the desirability of preserving existing relationships within the family of a represented person; the compatibility of the proposed guardian with the represented person and the administrator (if any) of his estate; the wishes of the represented person, and whether the proposed guardian will be able to perform the functions vested in him or her (s$44(2)).
168 Except where she is appointed to act jointly with another person or persons, the Tribunal shall not appoint the Public Advocate as guardian unless there is no other person who is suitable and willing to act (s 44(5)).
169 The Tribunal is satisfied on the evidence that the decision about where the represented person is to live, once he is discharged from hospital, will be made by his family. MYP, SAL and MIL are currently in agreement about their wish for him to be cared for at home, should that be possible.
170 A guardianship order is not required at this time to make the decision about the represented person's accommodation.
171 The decisions about the represented person's ongoing treatment and health care must, in the Tribunal's view, be made by a person with the relevant formal authority (see BTO [2004] WAGAB 2 at [20]).
172 This can be done by way of a formal guardianship order or pursuant to s 119 of the GA Act which provides a means by which consent can be given for a person's treatment (a person for whom, at the relevant time, a guardian
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- could be appointed under the GA Act) without the need for a formal guardianship order.
173 Consent for treatment can be given by a person, the first in order of priority, in a hierarchy of persons listed in s 119(3). The first person in the hierarchy is a guardian (appointed for the relevant purpose) followed by the spouse or de facto partner of the person needing the treatment (s 119(3)(a) and s 119(3)(b)).
174 The represented person is legally married but separated. MYP represents herself as his partner.
175 Under s 13A(3) of the Interpretation Act 1984 (WA), a person can be in a de facto relationship with another person even if either of the persons is legally married to someone else or in another de facto relationship.
176 Section 119(3)(b) of the GA Act on its face would seem to allow either the spouse or de facto partner to make treatment decisions.
177 It is in the represented person's best interests that there be certainty in the decision-making around his treatment and health care. There is general support for MYP to continue to make those decisions, which the Tribunal acknowledges and accepts.
178 The Tribunal therefore appoints MYP as the represented person's limited guardian to consent to his treatment and health care.
179 In making this decision, the Tribunal has no need to make a finding as to whether MYP is the de facto partner of the represented person.
180 The matter of the represented person's intention to divorce his spouse invites the question as to whether a guardian can be appointed with that function. The GA Act is silent on the matter.
181 Under s 45(3)(d) of the GA Act, a plenary guardian may not, under the Marriage Act 1961 (Cth), give consent in relation to the marriage of a minor, sign a notice of intended marriage or take part in the solemnisation of a marriage.
182 There is no mention of divorce proceedings in s 45(3) of the GA Act.
183 Under s 45(2)(g), a plenary guardian may, as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person.
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184 Under s 46 of the GA Act, a limited guardian may have such of the functions mentioned in s 45 as the Tribunal vests in him or her in the guardianship order.
185 A limited guardian, given the function under s 45(2)(g), may have the authority to initiate divorce action for a represented person by way of a case guardian (Pt 6.3 of the Family Law Rules 2004 (Cth)).
186 On the available evidence, the Tribunal takes the view that this matter is at a preliminary stage and requires, on behalf of the represented person, the obtaining of legal advice in relation to any proposed divorce action (on the understanding that action for a property settlement can take place independently of divorce proceedings).
187 The Tribunal is satisfied that MIL is the appropriate person to undertake this task. He has consented to act in this role.
188 The Tribunal appoints MIL as the represented person's limited guardian with the function of seeking legal advice on behalf of the represented person in relation to whether divorce proceedings can be initiated against the represented person's spouse to whom he is still legally married but from whom he is separated. MIL is directed to seek directions from the Tribunal pursuant to s 74 of the GA Act once the legal advice has been obtained.
189 The guardianship order will be reviewed with the order for administration.
Orders
Administration
1. BP and MYP are appointed the represented person's joint plenary administrators with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2. The administrators are authorised to expend up to a total amount of $4000 per annum for the comforts of the son of the represented person who resides in a nursing home.
3. BP, in his role as joint administrator, is authorised to be remunerated from the estate of the represented person to an amount not exceeding $12 000 per annum.
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- 4. The administrators are directed to provide SAL and MIL with a copy of the accounts required to be filed with the Public Trustee from time to time.
5. The order is to be reviewed by 8 May 2009.
Guardianship
1. MYP is appointed the represented person's limited guardian with the following function:
Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to the represented person's treatment and health care.
2. MIL is appointed the represented person's limited guardian with the following function:
(a) To seek legal advice on behalf of the represented person in relation to whether divorce proceedings can be initiated against the represented person's spouse to whom he is still legally married.
(b) The guardian is directed to seek directions from the Tribunal pursuant to s 74 of the Guardianship and Administration Act 1990 (WA) once the legal advice has been obtained.
3. The order is to be reviewed by 8 May 2009.
I certify that this and the preceding [189] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER