MS and YS
[2008] WASAT 72
•3 APRIL 2008
MS and YS [2008] WASAT 72
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 72 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2092/2007 | 17 DECEMBER 2007 | |
| Coram: | MR M ALLEN (SENIOR MEMBER) MS J STANTON (SENIOR SESSIONAL MEMBER) MS V O'TOOLE (SENIOR SESSIONAL MEMBER) | 3/04/08 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for guardianship order dismissed Order made appointing joint administrators | ||
| B | |||
| PDF Version |
| Parties: | MS YS |
Catchwords: | Guardianship and administration Applications by daughter for appointment of guardian and administrator for elderly mother Mother and daughter estranged for many years Mother suffering from psychiatric illness and dementia Finding that proposed represented person is a person in respect of whom guardianship and administration orders could be made, but is not in need of a guardian because informal arrangements in place are sufficient to meet her needs in relation to guardianship Finding that informal arrangements, including an enduring power of attorney (EPA), are not adequate to meet the needs of the proposed represented person in relation to her financial affairs Financial affairs not straight forward as proposed represented person has considerable assets and income, and is the sole trustee of and is beneficiary under, a discretionary family trust EPA revoked and attorney under that power together with a member of the proposed represented person's extended family appointed as joint plenary administrators Administrators also authorised to exercise the power vested in the proposed represented person as trustee of the discretionary trust |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 43(1), s 64(1), s 72(1), s 119, Sch 2 Mental Health Act 1996 (WA) |
Case References: | Re MM (2001) 28 SR (WA) 320 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MS and YS [2008] WASAT 72 MEMBER : MR M ALLEN (SENIOR MEMBER)
- MS J STANTON (SENIOR SESSIONAL MEMBER)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)
- Applicant
AND
YS
Represented Person
Catchwords:
Guardianship and administration - Applications by daughter for appointment of guardian and administrator for elderly mother - Mother and daughter estranged for many years - Mother suffering from psychiatric illness and dementia - Finding that proposed represented person is a person in respect of whom guardianship and administration orders could be made, but is not in need of a guardian because informal arrangements in place are sufficient to meet her needs in relation to guardianship - Finding that informal arrangements, including an enduring power of attorney (EPA), are not adequate to meet the needs of the proposed represented person in relation to her financial affairs - Financial affairs
(Page 2)
not straight forward as proposed represented person has considerable assets and income, and is the sole trustee of and is beneficiary under, a discretionary family trust - EPA revoked and attorney under that power together with a member of the proposed represented person's extended family appointed as joint plenary administrators - Administrators also authorised to exercise the power vested in the proposed represented person as trustee of the discretionary trust
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 43(1), s 64(1), s 72(1), s 119, Sch 2
MentalHealth Act 1996 (WA)
Result:
Application for guardianship order dismissed
Order made appointing joint administrators
Category: B
Representation:
Counsel:
Applicant : Mr DR Williams QC with Mr W Chessnut
Represented Person : Mr P Fraser and Mr A Di Francesco
Solicitors:
Applicant : Murphett Legal
Represented Person : Ilberys Lawyers
Case(s) referred to in decision(s):
Re MM (2001) 28 SR (WA) 320
(Page 3)
Summary of Tribunal's decision
1 The Tribunal considered an application by a daughter (MS) for the appointment of a guardian and administrator for her elderly mother (YS). YS and MS have been estranged for many years and YS has suffered from paranoid schizophrenia for many years. An application by MS in 2002 for the appointment of an administrator for YS was refused in 2003 by the former Guardianship and Administration Board.
2 The Tribunal was satisfied that by reason of YS's chronic mental illness and dementia she is a person in respect of whom both guardianship and administration orders could be made. Nevertheless, the Tribunal was satisfied that the existing informal arrangements were sufficient to deal with all matters that a guardian was likely to be called upon to deal with and, accordingly, YS was not in need of a guardian.
3 YS's financial circumstances were not straight forward. She has personal assets in excess of $1 million as well as being the trustee of, and a beneficiary under, a discretionary family trust established many years ago by YS and her now late husband. MS was at one time a beneficiary under the terms of the trust deed but there is now conflict as to whether she remains a beneficiary. The potential conflict in relation to the administration of the trust, plus the need for decisions to be made concerning the sale or lease of YS's residence indicated that some form of external administration of YS's financial affairs was required.
4 The Tribunal considered that an existing enduring power of attorney, under which YS appointed a friend (BM) to manage her affairs, was not sufficient as it did not seem to enable the attorney to act as an ex officio trustee of the trust and the Tribunal considered that there was a need for involvement by a member of YS's extended family in the administration of her affairs.
5 Accordingly, the Tribunal dismissed the guardianship application but made an order appointing as joint administrators BM and a nephew of YS's late husband. The joint administrators were granted plenary powers and the Tribunal also authorised the administrators to exercise the power vested in YS in her capacity as a trustee of the discretionary trust. The Tribunal also revoked the existing enduring power of attorney in favour of BM. The Tribunal considered that the order should be reviewed after 18 months, that being a sufficient period to establish whether the
(Page 4)
- administrators could work together, and to allow the foreseeable decisions to be made.
Background
6 These proceedings concern an application made by MS for the appointment of a guardian and an administrator for her mother, YS, pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act).
7 YS was born in December 1930 and at the time of the hearing was almost 77 years of age. She has been a widow since early 2002. It was not in dispute at the hearing that YS has had a long association with mental health services in this state.
8 In mid-2002 MS applied to the then Guardianship and Administration Board (the Board) for the appointment of an administrator for YS under the GA Act. At a hearing in March 2003 a three member board of the Board had the benefit of reports from several psychiatrists (Dr CL, Dr NF and Dr AA) and a social worker (GP) as well as considerable documentary material relating to the family circumstances of MS and YS, and their deteriorating relationship over many years. In July 2003, the Board delivered its decision and reasons, concluding that YS did suffer from a psychiatric condition, namely paranoid schizophrenia. However, the Board concluded that, although YS's condition was complex, it agreed with the assessments of the various medical practitioners that YS's mental disorder did not diminish her ability to understand her financial circumstances or to manage her own financial affairs. The Board concluded that the presumption of capacity as set out in s 4(2)(b) of the GA Act had not been displaced and dismissed the application.
9 It was also not in dispute at the hearing that in the years since that application was dealt with YS had continued to suffer from the same mental illness, spending periods of time in hospital by way of treatment for it.
10 The present application was made to the Tribunal in October 2007 by MS at a time when YS was again an inpatient being treated for her mental illness. In her application, MS stated that she made it because a social worker at the hospital who was involved in YS's care had approached her and recommended that the application be made. MS proposed in her application that she be appointed as both guardian and administrator for YS, either acting alone or acting jointly with the Public Trustee and the Public Advocate.
(Page 5)
Statutory framework and issues to be determined
11 Section 43(1) of the GA Act provides that the Tribunal may appoint a guardian for a person if it is satisfied that the person concerned:
(a) has attained the age of 18 years;
(b) is
(i) incapable of looking after his own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to his person; or
(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c) is in need of a guardian,
..."
12 Section 64(1) of the GA Act provides that an administration order can be made in respect of a person if the Tribunal is satisfied that the person:
"(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate, ..."
13 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.
14 Section 4(2) of the GA Act sets out principles that must be observed by the Tribunal when dealing with proceedings under that Act. In summary, these principles are:
(Page 6)
- a) The primary concern shall be the best interests of the person the subject of the proceedings;
b) Every person is presumed to be capable of looking after his own health and safety, managing his own affairs, and making reasonable judgments in respect of matters relating to his person and his estate until the contrary is proven;
c) Orders should not be made if the needs of the person could be met by other means less restrictive of the person's freedom of decision and action;
d) A plenary guardian should not be appointed if the appointment of a limited guardian would be sufficient to meet the needs of the person concerned;
e) An order appointing a limited guardian or an administrator shall be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action;
f) In considering any matter, the Tribunal shall as far as possible seek to ascertain the views and wishes of the person concerned as expressed at the time or as gathered from the person's previous actions.
15 The issues for the Tribunal to determine in the proceedings are whether, having regard to the above statements of general principle, the requirements for the making of a guardianship or administration order are made out and, if they are, who should be appointed as guardian or administrator and with what functions and powers.
Consideration
"Capacity" - s 43(1)(b) and s 64(1)(a)
16 It is apparent from the material relating to the 2002 proceedings before the Board, and from the recent reports from medical practitioners involved in YS's care and treatment at the hospital at which she was an inpatient at the time of the present hearing, that YS has suffered from a psychiatric condition for many years.
17 In a report dated 29 October 2007 Dr TS, a medical officer at the hospital, reported that YS suffered from chronic paranoid schizophrenia.
(Page 7)
- This fluctuated according to YS's compliance with medication, noting that YS had a history of over 30 years of suffering from this condition with relapses when noncompliant with medication. Dr TS expressed the opinion that YS was not capable, at that time, of making reasonable decisions about personal health care, her living situation and her financial affairs, nor did she have the capacity to make a valid enduring power of attorney (EPA). Dr TS noted that YS's current treating team had not observed her between episodes, and that YS was exhibiting paranoid ideation and suspiciousness towards the nursing staff and treating team at the hospital.
18 In a report made on the day of the hearing Dr SC (who is a psychogeriatrician at the hospital) reported that he had known YS for two months, that she suffered from chronic paranoid schizophrenia with dementia, possibly of the early frontal-temporal type. Dr SC thought that the impairment was of a progressive type but needed further investigations to be undertaken. There is evidence, however, of cognitive deterioration in assessment results from 2004 and 2007 indicating the progressive nature of the impairment. Dr SC expressed the opinion that YS was incapable of making reasonable decisions about personal health care, living situation and financial affairs as well as being incapable of executing a valid EPA.
19 A social worker at the hospital, Mr SS, provided a report to the Tribunal that YS was at the time of the report (30 October 2007) presenting as confused although she was able to follow instructions and did not get lost. At times the content of her discussions were influenced by her illness. He thought that YS appeared capable of managing daytoday budgeting decisions but would need help with large amounts. He thought that YS's assets are at risk because she has property and money in bank accounts and would benefit from assistance in getting her finances in order.
20 At the hearing YS informed us (in response to a question) that she thought the proceedings were about whether she had stolen her daughter's money and that she strongly believed that she was fully capable of making all sorts of decisions for herself and needed no assistance in that regard. She thought that she had done well in managing her financial affairs with the benefit of advice from an accountant and a financial advisor.
21 A friend of YS, BM, informed us that he had been associated with YS for some years and that in late 2006 (when YS was again an in-patient at the hospital) Mr SS had suggested that consideration be given to assisting YS in
(Page 8)
- managing her financial affairs and that an EPA should be considered. He agreed that at the time YS did need assistance in managing her affairs and he had agreed to be appointed as attorney because there was no one else available and prepared to take on the role. An EPA had been prepared by YS's solicitors and executed on 21 December 2006, soon after YS had been discharged from hospital.
22 BM said that since the making of the EPA his only involvement in YS's financial affairs had been in relation to day-to-day matters such as the paying of bills, although he had arranged for some of her money to be deposited in a term deposit. BM also said that he had been involved in discussions about where YS should live when she was discharged from hospital in late 2006 and he had been involved in the making of arrangements for her to move from her residence in Thornlie to a residential village - where YS had resided for the last 12 months.
23 YS told us that when she was discharged from hospital she would go back to living at her village, although she subsequently expressed some doubt about that - saying that she thought she would need to spend some time at her Thornlie house overseeing repairs that were needed before the property could be sold.
24 It is apparent from the documentary material filed in the proceedings that YS has considerable assets, consisting of bank accounts, a share portfolio and a superannuation account, as well as her former residence, which is of considerable value. In all, these amount to over $1 million. In addition, YS is the trustee of and a beneficiary under a discretionary trust established many years ago (1978) by YS and her late husband, and which has in the past owned several farming properties and other assets. Originally, a corporation was the trustee of the trust but in 2004 YS exercised her power as appointer of the trust to appoint herself as sole trustee, and the corporation was deregistered in 2006.
25 Although YS has suffered from the effects of her mental illness for many years it is not clear to what degree the illness impairs YS's ability to make reasonable decisions about her financial affairs and matters concerning her person. As noted, in 2002 the Board was not convinced that there had been sufficient impairment to justify the making of an administration order. Mr Williams QC identified for the Tribunal the differences between the various medical opinions expressed in 2002 and those expressed in the present proceedings, noting the emergence of dementia in the years since 2002 and that, at the present time, the medical and social work opinions were that YS's psychiatric condition did impair her decision-making ability.
(Page 9)
26 SS gave evidence that he thought YS was a potentially vulnerable person because she was wealthy and very generous with her money. He gave as an example of her generosity an attempt made by YS to pay for a trip to the United Kingdom for another patient at the hospital. In addition, in an affidavit sworn on 11 December 2007 and filed in the proceedings, another friend of YS, Mr SO, said that in recent years YS had "insisted" that her late husband had, (prior to his death) wanted to give SO a share ($65,000) of the proceeds of the sale of a farming property (a contention that MS said was entirely without foundation) and in 2003 YS had attempted to have her bank establish a superannuation fund of $40,000 for him - which he had refused to accept. In 2005 he had accepted from YS a gift of a motor vehicle valued at approximately $2,500 and a gift of $12,000 cash that YS had deposited into his bank account without his prior knowledge.
27 On the evidence outlined above we are satisfied that the presumption of capacity referred to in s 4(2) of the GA Act is rebutted. YS suffers from both a psychiatric condition (paranoid schizophrenia) and dementia, and she has a mental disability for the purposes of the GA Act. We are satisfied that these conditions impair her ability to make reasonable judgments about her financial affairs. In addition, although s 43(1) of the GA Act does not require a causal connection between a mental disability and the preconditions for the making of a guardianship order, we are satisfied that YS is incapable in the ways referred to in that subsection and that there is a connection between those inabilities and her current illnesses. In the circumstances we are satisfied that YS is a person in respect of whom both guardianship and administration orders could be made, and we note that this is a position held also by Mr C on behalf of the Public Advocate at the hearing.
Section 43(1)(c) and s 64(1)(b) - need for a guardian or administrator
28 Apart from meeting the "capacity" tests set out in s 43(1)(b) and s 64(1)(a) of the GA Act, the person concerned must also be in need of a guardian or administrator, that requirement being read in the light of the principles set out in s 4(2) of the GA Act referred to above.
29 In Re MM (2001) 28 SR (WA) 320 at 330, a full Board of the Guardianship and Administration Board concluded that the "need" referred to in s 43(1)(c) and s 64(1)(b) of the GA Act:
(Page 10)
- "... means the 'need' for someone to have formal legal authority to make decisions on behalf of the represented person in order to resolve issues relating to the personal affairs of the represented person or to manage and protect the financial estate.
However, ... [t]he mere fact that a person has a disability that makes him unable to make reasonable decisions does not automatically mean that the person is 'in need of a guardian' or 'in need of an administrator'. Such a need might not exist ... if there is some other statutory provision which gives legal authority for the decisionmaking in question (cf s 119) or if there is in fact no live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for this Board to intervene in the life of the represented person by making a formal order ...
[T]he phrase 'needs of the person' as it appears in [s 4(c) and] s 4(d) of [the GA Act] involves a different test. The 'needs' there described are of wide import and encompass all the wants and necessaries of the person."
30 In relation to the possible need for a guardianship order for YS, the areas of possible decisionmaking identified at the hearing were limited to longterm accommodation needs (and possibly access to services) and future medical treatment.
31 In relation to accommodation, SS informed us that he and others from the hospital had found the residential village accommodation for YS at the time of her hospital admission in late 2006 because they did not want YS to return to her former residence. The treating team had liaised with BM and other friends of YS about the move and they supported it. The only opposition to moving into the village had come from YS herself.
32 SS said that a recent ACAT assessment done for YS had concluded that she was in need of lowlevel residential care, which meant that if she returned to her village there would be a need for some kind of residential home care package of services to assist her on a daytoday basis. As an alternative, it might be appropriate for YS to move into a hostel that could provide these services and SS understood that BM had already made some inquiries on behalf of YS at possible care facilities. If a hostel became available a decision would need to be made about that possible move or, if YS returned to the village, a decision would need to be made about the services.
(Page 11)
33 In relation to consenting to medical treatment, SS told us that on both of her two most recent hospital admissions YS had initially been treated as an involuntary patient under the MentalHealth Act 1996 (WA) but that it had been possible to treat her as a voluntary patient for the final part of both those admissions. In relation to various medical health issues, including a fractured femur in 2006, YS had been able to give consent to her treatment for herself.
34 There was some discussion at the hearing as to whether s 119 of the GA Act would provide a workable alternative means of providing consent that may be needed for treatment. MS, as YS's nearest relative, might fall within s 119(3)(d), but it seemed that (through no fault of her own) MS has not been able to maintain a close personal relationship with YS. On the other hand, BM is a person who has maintained a close personal relationship with YS in the sense contemplated by s 119(3)(a) - in that he has maintained frequent personal contact (at least weekly) and a personal interest in YS's welfare (including regular liaison with hospital personnel and making efforts to organise future accommodation for YS.
35 All the parties at the hearing, including the representative of the Public Advocate, acknowledged that the current arrangements in relation to guardianship matters seemed to be working adequately in YS's interests and these arrangements were a less restrictive alternative that appeared to be meeting her needs.
36 In the circumstances we are not satisfied that YS is in need of a guardian and an order should not be made.
37 In relation to YS's financial estate the position is less clear. As noted above, YS has substantial assets invested in various ways which may, from time to time, require decisions to be made about whether to maintain those investments in those forms or in those proportions. In addition, YS's former residence apparently requires some repairs and then decisions will need to be made as to whether to sell or lease that property and, in either case, how to invest any proceeds.
38 Most importantly, and as noted above, in 1978 YS and her late husband established a discretionary family trust. YS and her husband were defined as the A class beneficiaries and, having survived her husband, YS has the power to appoint new trustees. She exercised that power in 2004 to remove the former trustee and appointed herself as the new trustee.
(Page 12)
39 It appears to be the case that the trust's only asset at the moment is a bank account containing approximately $120,000. However, the most recent income tax return for the trust submitted to the Tribunal (for the year ended 30 June 2006) shows that the trust earned gross interest of $5,136 and had other income of $5,510 that was described in the tax return as being "distribution from trusts, less nett capital gain and foreign income" (see exhibit P to the affidavit of BM sworn 11 December 2007). The total income of the trust ($10,646) in that year appears to have been distributed to YS, as appears from YS's personal income tax return for the year to 30 June 2006 (exhibit Q to BM's affidavit). In that financial year YS had total income from all sources for taxation purposes of $61,480.
40 Mr Williams QC on behalf of MS submitted to us that YS is a very vulnerable person who suffers from a chronic mental illness that has severely impacted upon her ability to maintain a relationship with her family. She is vulnerable also because of her considerable wealth and is open to exploitation by nonfamily members who may wish to gain access to her money. It was submitted that it would be in YS's best interests to have an administrator who is an independent person who could manage YS's affairs in a way that would ensure that the affairs were handled appropriately and at the same time remove any shadow of suspicion that may fall upon the friends who have become involved in the management of her finances.
41 Mr Fraser on behalf of YS submitted that there is no evidence to indicate that YS's financial affairs have been mismanaged or are in danger of exploitation - and that there is no reason why the current informal arrangements should not continue.
42 There was considerable discussion at the hearing as to whether the existing EPA, pursuant to which BM was authorised by YS "... to do on my behalf anything that I can lawfully do by an attorney" without any conditions or restrictions, was a sufficient mechanism by which YS's needs in relation to her financial affairs could be met. BM said that he, as YS's attorney, had done little in a formal sense using his authority under the EPA. Rather, his practice was to discuss all daytoday financial matters with YS and to help her make decisions and carry out her wishes. No major strategic financial decisions had needed to be made since his appointment as attorney.
43 Mr C on behalf of the Public Advocate said that he preferred to see the EPA remain in place as a less formal way of dealing with YS's financial affairs because it was in accord with YS's wishes. However, Mr C recognised that
(Page 13)
- questions might arise as to whether the trust situation could be adequately dealt with by BM as attorney under the EPA. Mr Fraser acknowledged that there may be problems if BM attempted to exercise the powers of a trustee as an ex-officio trustee by virtue of the EPA. Attention was drawn at the hearing to par (h) of Sch 2, Pt B, par (h) of the GA Act. By virtue of s 72(1) of the GA Act, the Tribunal may by order authorise an administrator to exercise a power vested in a represented person in the character of a trustee. Accordingly, the powers exercisable by YS as a trustee of the family trust could be exercised by an administrator if the Tribunal so authorised.
44 In this context, it is important to note that potential exists for future conflict to arise in relation to the administration of the trust. Exhibit F to BM's affidavit of 11 December 2007 is a copy of the trust deed. Clause 2 of the schedule to the trust deed sets out the beneficiaries of the trust. Apart from the class A beneficiaries referred to above (YS and her late husband) the trust deed also defines those who are to be class B, C and D beneficiaries. Class B beneficiaries are the children, grandchildren and further issue of YS and her late husband, and class C beneficiaries are the spouses for the time being of class B beneficiaries, any company in which a class B beneficiary holds shares and any trust which, in the opinion of the trustee, is a trust for the benefit of any class B beneficiary. MS and her children would therefore be class B beneficiaries and MS's husband and any company or trust connected with MS might also be class C beneficiaries.
45 The copy of the trust deed that is exhibit F to BM's affidavit has the definitions of class B, C and D beneficiaries crossed out and a notation made in YS's handwriting appears beside that in the following terms:
"1983 District Court meeting cancels all these classes only beneficiaries now are two A class directors."
46 In his affidavit, BM (at pars 120 - 123) says that he understands from YS that these hand written amendments relate to a District Court action in or about 1983 in which a claim was made against the trust by MS, that the action was resolved by a payment from the trust to MS, and that the amendments to the schedule reflect an agreement between the trust and MS that the class B, C and D beneficiaries would be removed by consent from the trust - with the result that the only beneficiaries remaining would be YS and her late husband.
(Page 14)
47 In an affidavit sworn on 14 December 2007, MS stated (at pars 42, 46 and 47) that the court action did not involved the trust. Rather, the proceedings arose because YS had claimed unjustified tax deductions by claiming MS had been employed as a fulltime farm manager on a substantial salary, when that was not the case. Taxation documentation in MS's name, but in YS's handwriting, was obtained and the proceedings were brought in order that YS should pay an outstanding taxation liability levied on MS. Further, MS said that she had held the trust deed for some months during 2001 at the request of her father before his death and no handwritten change had been made to the trust deed at that time.
48 It is not necessary for the Tribunal to try to determine what the facts are surrounding the events described above. Rather, it is sufficient to note that there is considerable potential for future conflict regarding how the trust should be administered and who are the potential beneficiaries.
49 We have concluded that YS's assets are considerable, their management is not straight forward, there is potential for future conflict regarding that management of the trust, and there is reason to believe that YS is at least vulnerable to exploitation - if only because of her apparent generosity. Having regard to what we consider to be her best interests we consider that the current EPA does not provide a sufficient means of managing her financial affairs for the foreseeable future and that an administration order is the appropriate means to achieve that objective. We consider that an administration order should be made and that the EPA should be revoked.
Who should be appointed as administrator?
50 Mr Williams QC submitted that YS's circumstances are such that it is highly desirable that a family member be involved in the administration of her financial affairs. As noted above, the application lodged by MS nominated herself acting alone or with the Public Trustee, but at the end of the hearing Mr Williams submitted that an alternative arrangement could be for two other members of YS's family (Mr FE and Mr EE) be appointed as joint administrators or, as a further alternative, that BM and FE be appointed as joint administrators.
51 As has already been noted, YS made it quite clear at the hearing that she thought that she did not need an administrator but that, if she did, she preferred BM to continue to perform the sort of role that he has performed in the recent past, rather than any member of her (or her late husband's) family. When asked whether she could identify any member of her extended family whom she might consider as a suitable appointment, YS identified FE, who is her late husband's nephew.
(Page 15)
52 It was apparent to us from the evidence given at the hearing and from the extensive documentation lodged with the Tribunal that a major cause for concern on the part of MS and other members of YS's extended family is that she has established a new circle of friends following her husband's death and that they have concerns regarding the potential for those friends to take advantage of YS. Whether those concerns are valid or not, we have no hesitation in accepting that MS and the other family members are motivated by a desire to see that YS is not exploited and that they interpret (rightly or wrongly) as indicators of the potential for exploitation the evidence regarding YS's desire to confer gifts on SO and that the treating team at the hospital have now on two occasions recommended that applications be made under the GA Act.
53 A considerable part of the family's concern is that they are suspicious of the various descriptions given by BM and SO of their dealings with YS and her late husband over many years. In the end, we do not think that it is helpful to try to determine whose version of the contact between YS and BM and SO is preferable. In the case of BM, we are satisfied that he remembers YS and her late husband from many years ago, when BM was only a child and his parents owned a property not far from a property owned by YS and her husband. Equally, we consider that there was a gap of many years when YS and BM had no or very little contact and that the current closer contact arose only in recent years after BM offered his assistance in the sale of livestock following the death of YS's husband and the sale of a farming property. In the case of SO, we accept that he was employed by YS and her husband over many years on an irregular basis but, again, a closer contact has arisen only in recent years.
54 What is also apparent is that, as verified by SS, BM has become involved as a friend in most aspects of YS's social life and that she has faith and trust in him.
55 On the other hand, it is understandable that MS and other members of YS's extended family have the concerns that they do, bearing in mind that YS's current financial position is due in no small part to the efforts made by her late husband. Mr Fraser described the situation of the family as "fractured" but we accept the contention made on behalf of MS that any fracturing has been from the direction of YS alone and may be in large part attributable to her chronic mental illness. We consider that, notwithstanding YS's view that she does not wish to have anything to do with her
(Page 16)
- daughter or her larger family, that it would be in her best interests to encourage a closer connection with her family and that one way of doing this would be to provide the family with a means of participating in the management of YS's affairs. Although YS may find the prospect unattractive, such involvement would enable the family to have information concerning YS's affairs and such a greater understanding may help the family have confidence that YS is not being financially exploited. Equally, the involvement of a family member may mean that YS will come to appreciate that MS is not motivated by a concern that YS has "stolen" MS's money.
56 In all the circumstances we think that BM should be appointed as one of two joint administrators. Clearly, BM has the trust of YS and she wishes his involvement to continue. However, we believe that the second joint administrator should be a member of YS's extended family. We do not consider that it should be MS because of the distress that may cause YS and because of the real possibility of there being a conflict of interest - if MS as administrator were to be called to make decisions in relation to the trust in circumstances where she may benefit from any decision as to who the possible beneficiaries of the trust are.
57 Rather, we consider that the other joint administrator should be FE, who is a person well known to MS and YS - having associated closely with the family all his life and having worked for YS and her late husband at various times. He is, as noted above, the only family member that YS would consider as a possible appointment to assist in the management of her financial affairs.
58 Both BM and FE have consented to be appointed as administrators. They are not known to each other, but with goodwill on both sides there would seem to be no reason why they should not work together given their shared concern for the best interests of YS. If it turns out that they cannot work together then it may be necessary for the Tribunal to become further involved, but that is a risk that we consider to be worth running in the circumstances.
59 We consider that the joint administrators should be granted plenary powers and the power to exercise YS's powers as trustee of the trust. The existing EPA should be revoked and the orders should be reviewed by no later than 30 November 2009. They can, of course, be reviewed earlier upon the application of the administrators or any other interested party.
(Page 17)
Orders
60 The Tribunal therefore orders:
61 In matter GAA 2094 of 2007:
1. The guardianship application is dismissed.
62 In matter GAA 2092 of 2007:
1. That BM and FE are appointed joint plenary administrators.
2. The enduring power of attorney by which YS appointed BM to be her attorney is revoked.
3. The administrators are authorised to exercise the power vested in YS in the character of a trustee of the discretionary family trust.
4. This order will be reviewed by 30 November 2009.
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M ALLEN, SENIOR MEMBER
0
0
2