MGH - [2013] WASAT 142

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MGH [2013] WASAT 142

MEMBER: MS F CHILD (MEMBER)

HEARD: 21 JUNE 2013

DELIVERED : 21 JUNE 2013

PUBLISHED : 4 SEPTEMBER 2013

FILE NO/S: GAA 1946 of 2013
GAA 1947 of 2013

BETWEEN :MGH
Represented person

Catchwords:

Guardianship and administration - Applications for appointment of guardian and administrator by estranged children who propose that estate be secured until death of represented person and probate granted - Represented person with terminal illness - Applications not for purpose of Guardianship and Administration Act 1990 (WA) - Appointment of longterm partner as guardian to consent to treatment to avoid ambiguity, and appointment as administrator consistent with what is understood to be his wishes

Legislation:

Electoral Act 1907 (WA)
Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 64, s 110Z(D)

Result:

Partner appointed guardian and administrator

Summary of Tribunal's decision:

The Tribunal appointed the long-term partner of a man who was diagnosed with a terminal illness as his guardian for medical treatment decisions and as the administrator of his estate. His two daughters had applied for their appointment. Their stated purpose for the applications included their proposal that they preserve his estate so that they would later be able to challenge his will which they believed made no provision for them.
The Tribunal determined that the man did need a guardian to ensure there was no ambiguity about who had authority to make treatment decisions for him, as he was gravely ill. The Tribunal also determined that he needed an administrator of his estate to meet his financial management needs in his lifetime. The proposals of the daughters were not consistent with the wishes of the man and not consistent with the purposes of the Guardianship and Administration Act 1990 (WA), which is to provide for the best interests of a person in their lifetime.

Category: B

Representation:

Counsel:

Represented person : N/A

Solicitors:

Represented person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Applications were filed with the Tribunal on 23 May 2013 pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act) for the appointment of a guardian and administrator for MGH (represented person) by his daughters, VM and JG (applicants).
The applicants say that the represented person has brain cancer and a mental illness. They say that his carer and partner, FP, had taken him out of hospital and proposed a 'death bed marriage'. The applicants say they have concerns about the possible mismanagement of the estate of their father by FP following the sale of his property in May 2013. Written submissions were received from the applicants, from MH, their brother, and from FP.
The Tribunal may make guardianship and administration orders if satisfied that the person is a person for whom the orders can be made and there is a need for the orders. Section 43(1)(b) of the GA Act provides that to appoint a guardian, the Tribunal must be satisfied that the represented person is incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of matters relating to his person, or is in need of oversight care or control in the interests of his own health and safety or for the protection of others, and is in need of a guardian.
Section 64 of the GA Act provides that to appoint an administrator, the Tribunal must be satisfied that the represented person is unable, by reason of a mental disability, to make reasonable judgments about any or all of his estate, and is in need of an administrator of his estate.
These provisions are subject to principles in the legislation set out at s 4 of the GA Act, which provides that there is a presumption that people can make their own decisions about their person and about their financial affairs, unless there is evidence to the contrary. The principles also state that orders should only be made if there are no less restrictive means of meeting the represented person's needs, and that any orders that are made should be made in the least restrictive way possible. In dealing with any matter under the GA Act, the Tribunal must attempt to ascertain the wishes of the represented person. The primary obligation of the Tribunal in dealing with matters brought under the GA Act is to act in the best interests of the represented person or proposed represented person. If the Tribunal decides orders should be made, it must consider the suitability of any proposed appointee for appointment consistent with the criteria set out in the GA Act.
The applications were heard on 21 June 2013. The Tribunal heard from both applicants, (VM and JG), the partner of the represented person (FP), the represented person's brother (DH) by telephone, and from the represented person's cousin and executor of his will (TB), and from the representative of the Public Advocate.
Orders were made on that day and brief oral reasons given for the orders made at the conclusion of the hearing. The applicants later sought written reasons for the decisions of the Tribunal.
The following are the reasons of the Tribunal delivered at the conclusion of the hearing and edited for clarity and to remove names and any identifying information consistent with the requirements of the GA Act and the practice of the Tribunal in GA Act matters.
In respect of these applications filed by the applicants on 23 May 2013 regarding the represented person, the Tribunal is satisfied that the represented person is a person for whom a guardian and an administrator can be appointed. I base that finding on the reports of Dr GJ, a neurosurgeon, and Dr DC, a general practitioner. Both their reports, as I referred to earlier in the hearing, have indicated that the represented person is not able to make judgments about his personal healthcare, his living situation or his financial affairs. Both doctors also agree that he is not able to give an enduring power of attorney. Dr GJ refers to a very restricted life expectancy of the represented person. Nonetheless, I do find that he is in need of an administrator, and I do find he is need of a guardian to make treatment decisions on his behalf.
I have heard from the parties this afternoon: from the applicants; from the represented person's partner, FP; his brother DH, from TB, who is the cousin of the represented person and the executor of his will; and also from the Public Advocate. The parties have filed a number of submissions in this matter: the original application including submissions from the applicants; the medical guides; material from MH, the son of the represented person; earlier submissions from the applicants; material from FP; and the medical notes from [names redacted] hospitals. The Public Advocate's report was provided to the parties.
In dealing with the question of the administration application, it is apparent from the medical evidence that the represented person cannot make judgments about his finances. He does have financial affairs to be managed. Things need to be done on his behalf. He has bills that need to be paid. FP's evidence is that she has been paying those bills herself. It is appropriate that the represented person's resources and finances be used to meet his needs. Someone will need legal authority to deal with this on his behalf.
The medical evidence is that the doctors both say that the represented person is now unable to give an enduring power of attorney. This was attempted earlier. However, the doctors now agree it is not possible, and therefore a formal appointment of an administrator is required. The applicants raise various concerns about the management of the affairs of the represented person, perhaps at least since the sale of his house property in May 2013. They say that they are questioning the interim management of the estate. I acknowledge that they are completely open and frank about the reasons for this. In the material provided by the applicants, they say that they intend to contest the will of the represented person and they say that the reason for this is that there is a history of very significant abuse and neglect of them in their childhood and young adulthood by their father. They say that they were not supported at that time by their father, and because of this, they intend to contest the will because of a sense of injustice, as one of them puts it.
It is proposed by them that the daughters of the represented person manage his affairs until his passing and probate is granted. This is supported by their brother, MH.
The intention of the GA Act is to provide for the management of the affairs of a person in their lifetime. Issues in relation to the deceased estate of a represented person are not matters for this Tribunal. The applicants say that the concerns about the estate arose from communication by FP that it was intended that she and the represented person marry. The allegations of financial mismanagement on the part of FP are said by VM, one of the applicants, to be only 'supposition'. There certainly are suspicions and anxieties, and because of the applicants' sense of injustice about the history, they say they want to preserve the estate for the purposes of any future claim they might make against the deceased's estate.
There is no evidence to support that FP has not made decisions in the best interests of the represented person or, in fact, that she has not acted at his direction in respect of the proceeds of sale of the property. There was no enduring power of attorney in place. What is said is that there was an agreement by the represented person to pay out FP's mortgage, and that was done. The balance of the funds is now in an account which will need to be documented for the Public Trustee. Addressing the needs of the represented person in his lifetime is the focus of any guardian or administrator; to manage the affairs of the represented person and to meet his needs. The applicants raised concerns about various expenditures of FP, such as the payment of air fares for DH, the brother of the represented person, to travel to see him. These are obviously concerns of the applicants, but there is no evidence to support any view that FP has not acted appropriately. What is suggested is that either the Public Trustee or the applicants be appointed. The applicants say that they should be appointed. Their brother supports their appointment because he says they will act with integrity for the purposes of preserving the estate until probate is granted.
That is not the purpose for the appointment of an administrator. An administrator is to step into the shoes of the represented person and to deal with their estate for the purpose of meeting the represented person's needs in their lifetime. What happens to the estate after the represented person dies is a matter for an executor, and if there is a conflict about the deceased estate, eventually the Supreme Court. The purpose of an administration order is to focus on the needs of the person and to address those needs in his lifetime.
I am going to appoint FP as the administrator of the represented person's estate. I find that such an appointment is consistent with the wishes of the represented person as far as it is possible to ascertain them from his actions. It is understood that FP has the necessary skills to manage the estate. The estate is not complex. It involves the represented person's interest in their jointly owned property. It is understood that there is cash, and there may be other assets, but it is not a complex estate. FP's background shows that she has the necessary skills to undertake that task. The Public Advocate canvassed the notion of the appointment of the Public Trustee with various parties, and that is supported by some. I do not find it necessary that the Public Trustee be appointed in the circumstances that the estranged children of the represented person now find it necessary to protect the estate for the purpose that they very frankly have put to preserve the estate for any claim that they might make against the will of the represented person when he passes away.
The children of the represented person will find it reassuring that the Public Trustee provides oversight of the management of the estate by administrators, because administrators are required to file accounts with the Public Trustee, and for those accounts to be examined. The administrator is required to file statutory declarations with the Public Trustee setting out what is in the estate when the appointment is made, and then to report against that when the Public Trustee calls for a set of accounts.
I find it is consistent with the represented person's wishes that FP be appointed, and I consider this is consistent with their longterm relationship that is in existence. It is not in dispute that there has been a long-term relationship between the represented person and FP. The applicants now raise an issue as to the nature of the relationship, but the applicants both say that they have been estranged from their father for many years. .
The represented person's daughter,VM, has recently renewed contact. His other daughter, JG, says that she is not going to have any contact with her father for her own reasons and it is not for me to make any comment about that, but simply to consider the suitability of persons proposed for appointment. The long-term estrangements of the applicants from the represented person, for whatever reason, do raise a concern as to whether they would be able to discharge the functions of a guardian or an administrator to deal with the wishes of the represented person because of the lack of recent knowledge about his wishes as expressed or as manifest through his actions.
The long-term estrangement and the purpose for which the application has been brought means that I must find that the applicants are not suitable for appointment.
In relation to the question of the need for a guardian, it was put by the Public Advocate that there is no need for a guardian because s 110Z(D) of the GA Act provides a less restrictive alternative to the appointment of a guardian. It is the preferred position under the legislation, as I set out at the beginning in the principles of the GA Act, that if there is a less restrictive alternative to the appointment of a guardian or an administrator, the Tribunal should not make an order.
The intent of this legislation is not to intrude on a person unnecessarily. However, I find that there is a need for the appointment of a guardian for the represented person. There is a need for a formal appointment because there is a question raised in the minds of the applicants, or at least in JG's mind, about the nature of the relationship between FP and the represented person. It is not in the best interests of the represented person that there be any ambiguity about this in respect of his healthcare. In his current situation, the gravity of his health, the sensitivity of the decisions that might need to be made about his healthcare, including palliative care, it cannot be the case that there should be any ambiguity or possible delay in making decisions for him if there was a dispute about FP's relationship to the represented person. There are numerous references in the medical notes to FP as the spouse, the carer, and the wife. However, it would not be in the represented person's best interests if there was any doubt, so to put that beyond doubt I appoint FP as guardian for the purposes of making treatment decisions. Both the applicants and TB acknowledge that the care of the represented person by FP has been in their words 'marvellous' or 'amazing'. They are very satisfied with her care so I believe that they will be satisfied that she can continue in the role of decisionmaking in relation to medical treatment decisions for the represented person. However, even if they are not, I think the focus must be on the interests of the represented person in what may be his last months of life; that the focus must be on his interests and to make the decisions that are in his best interests.
The applicants and MH, their brother, put very compelling material before the Tribunal as to what they say they have experienced, and that is acknowledged. However, these are not matters that can be dealt with in this forum. The questions before the Tribunal are in relation to guardianship and administration of the represented person. If decisions about the represented person need to be made after his death, such as has been raised in relation to his funeral arrangements, that is a matter for the executor or executors appointed under his will. That that person or those persons are his personal representatives and will give effect to his will unless it is challenged. If there is a challenge as has been forecast, that then will be a matter for the parties to seek legal advice about their positions and their proposed entitlements, and the prospect of success in litigation and the costs. Ultimately, those matters will be determined by the Supreme Court.
The purpose of the GA Act is not to resolve these disputes prior to the death of the represented person. The focus must be on the best interests of that person in their lifetime, irrespective of how that person may have acted in the past and what they have done. Ultimately, the focus must be on the best interests of the represented person.
The formal orders are that in the matter of applications by VM and JG, I am satisfied, for the reasons I have given, that the represented person is unable, by reason of a mental disability, of make reasonable judgments about all of his estate and he is in need of an administrator of his estate and that need cannot be met by other less restrictive means, and I hereby appoint FP as the plenary administrator. Although everyone has been told that the represented person has a very restricted life expectancy, I am going to make these orders for five years, that is the longest they can run, and if the represented person passes away before the end of that time, these orders cease and have no effect and his will come into effect. As soon as the represented person passes away his will is in effect and his executor acting under the will, even before the grant of probate, can deal with his affairs. These orders exist only for his lifetime. I am going to make the order reviewable on or before 21 June 2018.
In the matter of the application for the appointment of a guardian for the represented person, I am satisfied, based on the medical evidence before me, that the represented person is incapable of looking after his own health and safety, unable to make reasonable judgments in matters relating to his person and is in need of oversight and care in the interests of his own health and safety and he is in need of a guardian, for the reasons I have set out. I appoint FP of [address deleted] as his limited guardian for the purposes of making treatment or health care decisions, and that is simply to put beyond doubt, that there is someone with that authority to make decisions to ensure that there is no delay or ambiguity about the care of the represented person at this extremely difficult time for all of the family.

Orders

On an application for the appointment of an administrator for the represented person:
1.FP of [address deleted] is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The represented person is not capable of making judgments for the purpose of complying with the provisions of the Electoral Act 1907 relating to compulsory voting.

3.This order is to be reviewed by 21 June 2018.

On an application for the appointment of a guardian for the represented person:
1.FP of [address deleted] is appointed limited guardian of the represented person with the following functions:
(a)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;

2.This order is to be reviewed by 21 June 2018.

I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER