MPM - [2018] WASAT 59

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   MPM [2018] WASAT 59
MEMBER:   MS F CHILD (MEMBER)
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   21 MAY 2018
FILE NO/S:   GAA 326 of 2018
BETWEEN:   MPM
Represented Person

Catchwords:

Guardianship and administration - Application for legal costs from the represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) - Costs application by applicant brother - Allegation of financial abuse and misappropriation of assets by adult children of woman with diagnosis of depression and dementia - Interim emergency order made to protect the estate - Admissions by daughter acting under an enduring power of attorney of transfers of funds to herself - Appointment of Public Trustee as administrator - Appointment of guardians - Applicant for costs acting in the best interests - Application may not have been made but for the legal advice and assistance obtained by the applicant - Costs order made

Legislation:

Guardianship and Administration Act 1990 (WA), s 16(4), s 107, s 109(1)
State Administrative Tribunal Act 2004 (WA), s 87(1)

Result:

Costs allowed

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

LC and JS [2007] WASAT 127
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302

REASONS FOR THE DECISION OF THE TRIBUNAL:

These reasons relate to the determination of an application for the costs of the applicant to be paid from the estate of the represented person, MPM, pursuant to s 16(4) of the Guardianship and Administration Act (1990) (WA) (GA Act).

Background

The applicant for costs, is the brother of MPM, a woman with a diagnosis of dementia and depression. The applicant made applications in January and February 2018 for orders under the GA Act for intervention in an enduring power of attorney (EPA) executed by the represented person which appointed her daughter as attorney and for orders appointing the Public Advocate as guardian and the Public Trustee an administrator of the represented person's estate.
The applicant alleged that property of the represented person had been misappropriated by her daughter and her son with large transfers of funds to them and that her estate was at risk. The Tribunal was told that despite living with her daughter, receiving pension incomes and substantial funds from an inheritance that the represented person had needed financial assistance for food and other essentials.
The applicant, through his legal representative, sought an emergency order for the protection of the represented person's estate by an order which appointed the Public Trustee to secure the estate of the represented person prior to the applications being finally determined. The applicant advised that the house property of the represented person had been sold by the daughter and settlement was imminent.
The daughter who held the EPA opposed the orders being made.
The medical evidence before the Tribunal reported that the represented person had a diagnosis of dementia. The opinion of the geriatrician, Dr C who had assessed the represented person during a hospital admission was that the represented person was not able to make reasonable decisions about her person or her estate. The medical opinion was not challenged by any of the parties.
In the course of the hearing of the applications in March 2018, the daughter was shown the banking records of the represented person submitted by the applicant, which showed numerous transfers from the represented person's bank account to the daughter's account.
The daughter made admissions that she had undertaken the transfers as she had access to the represented person's account through online banking and had transferred funds from her mother's bank account into one of her own accounts.
The bank statements showed that on many occasions there were several transfers by the daughter within the one day sometimes totalling hundreds of dollars and then on following days the pattern would be repeated. The incidents of transfers of funds of the represented person by the daughter to her own account shown in the represented person's bank statements are too numerous to itemise in these reasons.
The daughter gave no plausible explanation for these sometimes daily transfers of funds which she agreed had occurred both during the time when she was appointed under the EPA from the 2 August 2017 and before that time while she was the carer of the represented person, including a period when her mother had been in hospital.
The daughter said that she had been the represented person's carer for approximately two years when her mother had come to live with her following her discharge from hospital. The daughter reported that the represented person had felt unsafe in her own home because of the aggressive and abusive conduct of her son.
In respect of the total amount of funds withdrawn or disbursed from the represented person's estate, the daughter challenged the calculation that there had been a loss to the represented person's estate of some $450,000 but agreed that the amount transferred from the estate may be have been $250,000.
The daughter accepted that transfers from the represented person's estate to her own account had only ceased following the Public Trustee securing the represented person's bank account following urgent representations made by the applicant's solicitor that an emergency order was required to protect the estate.
The Tribunal, having determined that the represented person is a person for whom orders may be made and that orders were needed, appointed a long-term friend of the represented person as her limited guardian to make decisions for the represented person in respect of her accommodation, medical treatment and the services to which she should have access.
In light of the level of conflict between the parties and existence of a violence restraining order (VRO) which had been granted to the represented person against her son in mid-2017, the Public Advocate was appointed as limited guardian to determine the contact the represented person should have with others.
The Public Trustee was appointed the plenary administrator of the represented person's estate with direction to ascertain the extent of her estate and to investigate the management of the estate and the potential misappropriation of funds of the represented person and to consider what further action should be taken.
In addition to the orders appointing guardians and the appointment of the Public Trustee as administrator of the estate, the Tribunal revoked the EPA which had appointed the daughter and ordered her to file with the Tribunal and serve on the applicant records of accounts kept by her as attorney.
In making the orders intervening in the EPA under s 109 (1) of the GA Act, the Tribunal found that the applicant had a proper interest in bringing the application for intervention in the EPA as the brother of the represented person concerned for her welfare and because of the serious allegations made regarding misappropriation of the represented person's funds and other mismanagement of her estate by the attorney.
The Tribunal determined that the attorney had breached her duty (set out in s 107 of the GA Act) to act with reasonable diligence to protect the interests of the represented person, the donor of the EPA, by her failure to protect the represented person's interests by her mismanagement of the estate and the transfers to herself of funds of the represented person.
The Tribunal determined that orders appointing guardians and an administrator were required, having regard to the extensive material filed and the evidence given at the hearing that the needs of the represented person both for her welfare and personal decision-making and protection of her estate had not been met by the arrangements that had been in place with her daughter identified as her next of kin and acting as her attorney under the EPA.
At the conclusion of the hearing counsel for the applicant foreshadowed that an application for the payment of the applicant's legal costs pursuant to s 16(4) of the GA Act would be made.

Costs application

Section 16(4) of the GA Act provides:
The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.
Previous decisions of the Tribunal have identified the need to read s 16(4) of the GA Act in light of s 87(1) of the State Administrative Tribunal Act 2004 (WA) which provides that the starting point in respect of costs is that parties to proceedings before the Tribunal bear their own costs. See for example LC and JS [2007] WASAT 127(LC and JS).
In LC and JS the Tribunal enumerated a nonexhaustive list of factors which if present might give rise to the exercise of the discretion in s 16(4) of the GA Act to order that the represented person pay another party's legal costs.
Of the factors identified in LC and JS, I consider that the following are relevant to the present case:
•The unlikelihood that the applications would have been made to the Tribunal, with the represented person benefiting from the protection of the orders, had not legal advice being sought by the applicant;
•The serious allegations that the represented person was suffering from abuse and that legal advice and representation was required to present a reasoned case to the Tribunal in a timely manner; and
•The significant conflict between the parties which is of such a magnitude that it was unlikely they could present a coherent case to the Tribunal in respect of the history and needs of the proposed represented person without legal assistance.
The Tribunal accepts the submission that had the applicant not had the legal advice and assistance he sought following his concern for the represented person's circumstances and had enquiries not been made on his behalf by his solicitor in respect of the financial affairs of the proposed represented person that it is unlikely that the applications would have been made at the time they were filed if at all.
The identification of the need to seek an urgent order by the applicant's solicitor prior to the applications being determined, to protect the proceeds of sale of the represented person's house, which had been sold by her attorney, resulted both in the securing of the proceeds of sale by the Public Trustee and the securing of the represented person's bank account. This order prevented the continuation of the frequent large transfers of funds from the represented person's account to the daughter's account. Had that order not been sought and made it is highly likely, based on her admitted prior conduct, that further funds of the represented person would have been dissipated by the attorney.
The investigations undertaken on behalf of the applicant and the gathering of financial and other records of the represented person from third parties put evidence before the Tribunal that might not have been provided had those investigations not been conducted. This material included financial records from banks and from the Department of Veteran's Affairs which showed the significant diminution of the represented person's estate from which the mismanagement of the represented person's affairs by the attorney could be inferred. This together with the admitted conduct of the attorney reinforced the need for the appointment of an administrator of the estate.
In addition, to these matters there is a high level of conflict between the applicant brother and the adult children of the represented person as evidenced by abusive social media posts made by both the son and the daughter in response to the applicant bringing the applications to the Tribunal. The son of the represented person is reported to have been aggressive and abusive to the represented person such that she sought a VRO against him in mid-2017. The son attended the hearing and reported that he had recently been released from prison. The daughter is alleged to misuse illicit substances and also to have tried to prevent contact between the represented person and the applicant while the represented person was living in the daughter's home. In these circumstances in addition to the reasons given above it was appropriate and of assistance that the applicant was legally represented.
The Tribunal considers that the application for costs should be allowed in all these circumstances. The Tribunal is satisfied the applicant brother acted in the best interests of the represented person in bringing the applications to the Tribunal. The emergency order which prevented further loss to the estate in particular may not have been made but for the legal advice and assistance he received.
It has been previously decided that the Tribunal's determination of costs to be awarded should be approached in a broad and relatively robust fashion; see Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008]WASAT302 at[67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010]WASAT125(S) at[49].
Approaching the task of determining this application in this way I have taken into account the volume and relevance of financial and other material filed, the written submissions filed on behalf of the applicant in respect of the applications made, the interim orders sought including the emergency order and orders for the production of documents from third parties, (which supports the submission that lengthy investigation of the circumstances of the represented person was undertaken on behalf of the applicant). I consider that in all these circumstances the amount of the costs claimed is reasonable.

Order

1.Pursuant to s 16(4) of the Guardianship and Administration Act1990 (WA), the Public Trustee, the administrator of the estate of the represented person, pay to the applicant $5,500 from the estate of the represented person being the legal costs incurred by him in the proceedings brought by him under the Guardianship and Administration Act 1990 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
9 JULY 2018