MCZ
[2005] WASAT 164
•8 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MCZ [2005] WASAT 164
MEMBER: MS F CHILD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
HEARD: 10 MAY 2005
DELIVERED : 8 JULY 2005
FILE NO/S: GAA 192 of 2005
BETWEEN: MCZ
Represented Person
PFI
Applicant
Catchwords:
Guardianship and administration Administration Need for an administrator Misappropriation of funds by donee of enduring power of attorney
Legislation:
Guardianship and Administration Act 1990 (WA), s 64(1), s 107
Result:
Public Trustee as plenary administrator
Category: B
Representation:
Counsel:
Represented Person : N/A
Applicant: Selfrepresented
Solicitors:
Represented Person : N/A
Applicant: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MCZ
MEMBER: MS F CHILD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
HEARD: 10 MAY 2005
DELIVERED : 8 JULY 2005
FILE NO/S: GAA 192 of 2005
BETWEEN: MCZ
Represented Person
PFI
Applicant
Catchwords:
Guardianship and administration Administration Need for an administrator Misappropriation of funds by donee of enduring power of attorney
Legislation:
Guardianship and Administration Act 1990 (WA), s 64(1), s 107
Result:
Public Trustee as plenary administrator
Category: B
Representation:
Counsel:
Represented Person : N/A
Applicant: Selfrepresented
Solicitors:
Represented Person : N/A
Applicant: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
An application under the Guardianship and Administration Act 1990 (WA) ("the Act") was lodged with the Tribunal on 17 March 2005 seeking the appointment of an administrator for Mrs MCZ ("the represented person").
At the hearing on 10 May 2005 the Tribunal determined that Mrs MCZ was a person for whom an administration order could be made and appointed the Public Trustee as her plenary administrator for a period of five years.
The applicant for the appointment of the administrator was the director of nursing of St Michael's Care Facility in which the represented person has been resident since 2002.
In the application the applicant advised that she was aware that an enduring power of attorney had been executed by the represented person on 12 March 2002 by which the represented person had appointed MML as the donee of her power of attorney ("the donee").
Present at the hearing were the represented person, her sister, the donee, her daughter, the applicant and the deputy care manager of the care facility.
Before the Tribunal can make orders for the appointment of an administrator for the represented person it must be satisfied that the represented person is incapable by reason of a mental disability of making reasonable judgements in respect of matters relating to all or any of her estate and is in need of an administrator for her estate (s 64). The Tribunal must also consider whether the needs of the represented person could be met in a less restrictive way than by the making of an administration order.
Capacity
In respect to the question of the capacity of the represented person, the Tribunal received a report from Dr Paulien de Boer dated 2 March 2005. In that report Dr de Boer stated that the represented person had a diagnosis of dementia and that she had first recognised the represented person's cognitive impairment on her admission to the nursing home and that her condition was progressive. Dr de Boer considered that the represented person was incapable of making decisions in respect to her financial affairs and not capable of executing an enduring power of attorney. She reported that the represented person's mini mental state examination was 22/30 on 16 April 2002 and 19/30 on 25 November 2004.
The report of the deputy care manager of St Michael's, Ms Sinclair‑Lane stated that the represented person suffered "major depression, cognitive impairment and mild/moderate dementia and forgetfulness".
Based on the report of Dr de Boer and the evidence of the applicant and deputy care manager, the Tribunal found that the represented person was a person for whom an order could be made pursuant to s 64(1)(a) of the Act in that she was incapable by reason of her cognitive impairment of making reasonable judgements in respect of matters relating to all of her estate.
Need
In relation to the question of need for an order, as is required under s 64(1)(b), the applicant stated in her application that there was a need for an administrator as the represented person's financial management was at risk should the arrangements with the current enduring power of attorney remain in place.
The application stated that:
"In July/August 2004 St Michael's senior staff met with both the proposed represented person and the enduring power of attorney [sic], [MML] on several occasions to discuss the financial issues. The EPA [sic] herself alerted us to a $9000 withdrawal in August 2003 and her concern long‑term of being able to meet the accommodation care fees for the proposed represented person. It was disclosed that monies had been used for the EPA's [sic] personal family use, however when raised as an issue with the proposed represented person, she stated it was a gift."
Evidence given at the hearing confirmed that the represented person's house had been sold in mid 2003 and the proceeds of sale invested on her behalf by the donee. When asked about her estate it was clear that the represented person had no recollection of the details of the sale of her property and had no understanding of the extent or nature of her estate. She seemed unaware of the extent of withdrawals from her bank accounts by the donee.
The sister of the represented person, the donee and her daughter did not accept that the represented person had cognitive impairments. The sister stated that the represented person "knows what she wants" and "is stubborn".
Included with the application to the Tribunal was a document submitted by the applicant which was said to be a summary of transaction details on the savings bank account of the represented person ("the transaction summary").
Prior to the hearing the transaction summary was sent with a copy of the application to the donee, with a covering letter dated 24 March 2005 from the Tribunal seeking her response and asking that she bring all relevant documents including receipts to the Tribunal hearing of the application. The donee did not respond to that letter.
The donee did not bring documents to the hearing as requested. She did not provide a copy of the enduring power of attorney nor did she have documents related to the term deposit of the represented person. Some bank statements on the savings account of the represented person for the first three months of 2005 and a photocopy of the enduring power of attorney dated 12 March 2002 were provided to the Tribunal by the applicant.
In the hearing when presented with a copy of the transaction summary the donee readily agreed that the document represented a true record of the bank statements which she had provided to the nursing home staff in 2004.
The transaction summary runs from 17 March 2003 to 29 April 2004. The document shows a series of withdrawals from the represented person's account including several for many thousands of dollars. For example withdrawals in a five day period in September 2003 were made totalling $10 500 (including one withdrawal of $9000) and withdrawals for the month of April 2004 totalling $12 180.80 and other expenditure $540.35 in that month. The income shown on the transaction summary is recorded as Centrelink pension varying between $433.75 to $407.27 per fortnight. The only other income for the transaction summary period is shown as $297.26 interest.
When questioned about the transactions the donee acknowledged that the summary was an accurate record of the transactions on the represented person's account and confirmed that many of the withdrawals were for her own use. She stated that she had not kept receipts of expenditure of the represented person's funds.
The donee also stated that she had taken the represented person shopping for clothing and that some of the transactions shown would reflect expenditure on the represented person.
This part of the evidence was contradicted by the deputy care manager of St Michaels who stated that the represented person had not been taken shopping from the nursing home since Christmas 2003.
Allegations were also made by the donee and the donee's daughter who attended the hearing that money of the represented person had been stolen in the nursing home.
The applicant stated that no complaint had been made to her of monies stolen from the represented person and that she as the director of nursing at the nursing home would treat such an allegation very seriously and investigate it should it be made.
In relation to the $9000 withdrawn from the represented person's account by the donee said to be used by her to pay her husband's tax bill, the deputy care manager stated that the donee had said to her in July or August 2004 that this money had in fact been paid towards her Myer card account. This was denied in the hearing by the donee although she accepted that she had made the withdrawal and had used the money for debts.
Where there is a conflict between the evidence of the applicant or the deputy director of care and that of the donee, the Tribunal prefers the evidence of the applicant and the deputy director of care.
The donee related that she had drawn on the represented person's term deposit on more than one occasion as the funds in the represented person's savings account had dwindled following withdrawals. When questioned she was unable to give an account of the number of transfers made to the savings account or of the balance of funds remaining in the term deposit.
The applicant stated that the transaction summary provided with the application shows that at least $86 000 of the represented person's funds was expended in the period covered by the transaction summary. The donee acknowledged further expenditure by her of the funds of the represented person for her own use since the application had been made.
The donee's daughter confirmed that the donee had used money of the represented person for her own use but stated that this had been with the approval of the represented person. She stated that on each occasion that a withdrawal was made, that the permission of the represented person was sought. She also stated that the represented person had said that the donee could use the represented person's ATM card. The sister stated that the represented person had given gifts of $2000 to one sister and $1000 to another and had wanted to help the donee financially.
While it is accepted that the donee may have believed that the represented person wanted to help her financially, the evidence that permission was sought for each withdrawal of funds of the represented person is not accepted by the Tribunal. The donee acknowledged that she had made withdrawals since the application had been made. She also stated during the hearing that she had not seen the represented person for some months and so it is unlikely that permission was sought for those withdrawals. The Tribunal does not accept the explanation of the daughter of the donee that permission had been sought for withdrawals on each occasion including withdrawals made at Burswood Casino.
Later in her evidence, the daughter of the donee stated that her mother was experiencing financial problems, had been under pressure from her brother and had used money of the represented person to pay debts and purchase furniture.
The sister of the represented person confirmed that the represented person had wanted in the past to see statements of her bank accounts but had complained that the donee had not brought them in to her in the nursing home. The sister stated that she had on more than one occasion been asked to request that the donee bring in statements to the represented person.
On the evidence of the applicant, the donee's own evidence and that of her daughter and the deputy care manager, the Tribunal found that the funds of the represented person had not been applied to the needs of the represented person but had been directed to the donee and to members of her family. Although an accurate figure of withdrawals was not available as the donee had not brought the recent bank statements to the hearing as requested, it appeared that over half of the estate of the represented person had been expended in the period covered by the transaction summary. The failure of the donee to maintain records or to keep receipts means that the only payments of any significance which could be said with any certainty to have been made on behalf of the represented person were the nursing home fees and the applicant reported that at times those payments had been in arrears.
Having considered the way in which the bank accounts of the represented person had been managed by the donee, the Tribunal found that there was a need for an administrator to be appointed for management of the represented person's estate. The represented person could not do this herself and the arrangements she had put in place for management of her estate while apparently competent through the execution of an enduring power of attorney had not operated in her best interests.
The obligations of a donee of an enduring power of attorney are set out in s 107 of the Act. The applicant stated in her evidence that at her meeting with the donee in July or August of 2004 she had explained those obligations to the donee.
The Tribunal found on the evidence of the donee herself that the donee had failed to exercise the power with reasonable diligence to protect the interests of the donor by making large withdrawals of the represented person's funds to apply to her own needs. It seems she had continued to do this even when the director of nursing had explained her obligations as donee and in the face of her own concern about her inability to meet the needs of the represented person for accommodation costs in the future due to the diminution of the estate.
Again on her own evidence the donee had failed to keep and preserve records of all transactions made pursuant to the power as she was obliged to do under the Act.
Although the represented person expressed the wish that the donee "continue to help her", to give effect to this expressed wish would not be consistent with the proper protection of the estate of the represented person. The Tribunal found there was a need for the appointment of an independent administrator to protect what remained of the represented person's estate and to apply it to meet her needs in both the long and short term.
The orders made by the Tribunal were for the appointment of the Public Trustee as administrator for a period of five years. The enduring power of attorney dated 12 March 2002 by which the represented person appointed the donee as her attorney was revoked.
The administrator was directed to investigate the management of the estate of the represented person from 12 March 2002 including transactions made pursuant to an enduring power of attorney executed on 12 March 2002 by which the represented person appointed MML as donee of the power of attorney, including the sale of the house property of the represented person and subsequent dealings on the estate including the investment or disbursement of the proceeds of sale.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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