MT - [2018] WASAT 80 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   MT [2018] WASAT 80
MEMBER:   MS F CHILD (MEMBER)
HEARD:   30 MAY 2018
DELIVERED          :   10 AUGUST 2018
FILE NO/S:   GAA 1231 of 2018
MATTER:   MT
Represented Person
NT
Interested Party

Catchwords:

Guardianship and administration - Enduring power of attorney - Appointed donees in conflict regarding the management of the estate of the donor - Potential conflict of interest of one donee - Incapacity of donor - Need for administrator of the estate - Factors to be considered in the appointment of administrator - Need for independent administrator - Public Trustee appointed as administrator - Enduring power of attorney revoked

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 64, s 64(1), s 68, s 68(2)(b), s 97(1)(b), s 107, s 107(1)(a), s 108(1a), s 110M, Sch 2 Pt B
State Administrative Tribunal Rules 2004 (WA), r 26, r 54

Result:

Public Trustee appointed administrator
Enduring power of attorney revoked

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Interested Party	:	Ms C Hettiarachchi

Solicitors:

Represented Person	:	N/A
Interested Party	:	Five Star Legal

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

Holt and Another v Protective Commissioner (1993) 31 NSWLR 227

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These are the reasons for the decision made on an application brought to the Tribunal under the Guardianship and Administration Act 1990 (WA) (GA Act) in respect of MT.
MT is a widow and a resident in an aged care facility (Facility). She has two sons AT and NT. The sons are appointed under an enduring power of attorney (EPA) made by MT on 18 September 2017 by which she appointed NT and AT jointly and severally as her attorneys.

Proceeding before the Tribunal

AT filed an application with the Tribunal on 10 April 2018 pursuant to s 110M of the GA Act. Section 110M applies to enduring powers of guardianship. MT does not have an enduring power of guardianship.
The application was listed for directions on 27 April 2018. Both AT and NT attended the directions hearing. MT did not attend this hearing or the final hearing on 30 May 2018.
In the directions hearing AT explained that his application to the Tribunal arose from his concern about the nonpayment of the Refundable Accommodation Deposit (RAD) required by the Facility into which MT had moved in September 2017 which he said NT had agreed to pay. AT said that he and NT were appointed under an EPA but could not agree how the RAD should be paid. NT said that there was no agreement. Both agreed that the Public Trustee could be appointed in the interim until the matter was finally determined by the Tribunal.
Given the conflict between the attorneys and the medical evidence which indicated MT suffered cognitive impairment the Tribunal determined that MT may be a person for whom an administration order may be made and in light of the uncertainty about the management of her estate that there was a need to make immediate provision to protect her estate.
The following orders were made at the directions hearing:
1.This proceeding is taken to have been commenced under s 40 of the Guardianship and Administration Act (1990) (WA) (GA Act) for the appointment of an administrator of the estate of [suppressed] rather than s 110M of the GA Act.
2.The application is adjourned to 12pm on 30 May 2018 at 565 Hay Street, Perth, Western Australia.
3.The Public Advocate is requested to investigate the following matters and provide a written report at least three days prior to the hearing:
(a)Whether the proposed represented person is in need of an administrator;
(b)Whether the enduring power of attorney dated 18 September 2017 provides a less restrictive alternative to the making of an administration order;
(c)What are the views and wishes of the proposed represented person regarding the issues arising in this proceeding; and
(d)All other matters the Public Advocate considers relevant.
4.Pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) Public Trustee is authorised to exercise the functions of a plenary administrator with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA) to protect and secure the following part of the estate of the proposed represented person:
(a)The residential property of the proposed represented person at [suppressed], Western Australia; and
(b)the bank account of the proposed represented person.
At the request of NT's solicitors, further orders were made on 16 May 2017 granting access to NT to inspect all documents filed with the Tribunal in this matter.
NT takes issue with the failure of AT as applicant to comply with r 26 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) because of the failure to provide a copy of the application to NT. Pursuant to r 54 of the SAT Rules, r 26 does not apply to proceedings brought under the GA Act. .
At the final hearing both AT and NT attended and NT was legally represented. The Public Advocate's representative attended and provided a written report of the investigation referred by the Tribunal which had involved interviewing all of the parties including MT. The proceeding was then adjourned to enable the parties to file and exchange further written submissions. The Tribunal ordered that the matter would then be determined without further hearing

Evidence and material before the Tribunal

The following material was filed in this proceeding:
1.the original application by AT filed 10 April 2018;
2.a copy of an EPA dated 18 August 2017;
3.report of Dr W dated 9 April 2018;
4.report of the Facility Manager of the Facility where MT resides dated 24 April 2018;
5.copy of the 'My Support Plan' dated 4 July 2017;
6.copy of the Department of Human Services Financial Information Service Record of Interview conducted 3 May 2018;
7.report of the Public Advocate dated 21 May 2018;
8.report of the Public Trustee dated 29 May 2018;
9.submissions and email communications from AT dated 11, 17 April, 13, 28 June and 3 July 2018; and
10.submissions and email communications from and on behalf of NT dated 28 May, 14 and 18 June and 5 July 2018.
In addition to the written material the Tribunal heard from AT and NT and NT's representative and from the Public Advocate's investigator at the hearing on 30 May 2018.

Legislation

Section 4 of the GA Act provides:
(1)In dealing with proceedings commenced under this Act the   State Administrative Tribunal shall observe the principles set out in this section.
(2)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.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)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.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) 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.
(6)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.
(7)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.
Section 64(1) of the GA Act states:
Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(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,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c)        a person to be the administrator; or
(d)        persons to be joint administrators[.]
Section 68 of the GA Act sets out the criteria the Tribunal must consider in the appointment of an administrator of an estate:
(1)An administrator (including a joint administrator) shall be
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2)The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4)The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.
In respect of an EPA, s 107(1) of the GA Act sets out the obligations on attorneys appointed under an EPA:
(1)The donee of an enduring power of attorney
(a)shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure;
(b)shall keep and preserve accurate records and accounts of all dealings and transactions made under the power;
(c)subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and
(d)shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal.
Penalty applicable to paragraph (b): $2 000[.]
Section 108(1a) of the GA Act provides that when the Tribunal appoints an administrator of an estate and the continued operation of an EPA would be inconsistent with the functions of the administrator it shall revoke the EPA.

Administration application

When considering the application for the appointment of an administrator of the estate of MT, the threshold question is whether the presumption of capacity has been set aside by the evidence and whether the Tribunal can find that MT is unable by reason of a mental disability to make reasonable judgments about her estate.
The report of Dr W dated 9 April 2018 refers to the 'My Support Plan' assessment and gives the opinion that MT has a cognitive impairment. The doctor's opinion is that MT has a progressive condition and that she is incapable of making judgments about financial and personal matters.
The Facility Manager, who is a registered Nurse, of the Facility in which MT lives, in her report dated 24 April 2018 states that MT does not appear to be able to make financial decisions or forward plan. The Facility Manager refers to the 'My Support Plan' assessment in 2017 which reportedly shows impairment in MT's cognition and gives the opinion that MT seems unable to make decisions in her best interests and has an impairment in her memory.
In the 'My Support Plan' assessment dated 4 July 2017, MT is reported to have a RUDAS score of 16/30. RUDAS is a cognitive assessment which is reportedly sensitive to persons whose first language is not English. A score of 16/30 is understood to indicate a moderate cognitive impairment. Qualitatively MT was reported to require supervision with cooking and that her son managed all her finances and bill paying.
The Public Advocate's investigator reports he interviewed MT at the Facility and that she was unable to confirm her date of birth, where she is currently living and how long she has been there. She did not know if she was taking medications despite taking a number of medications. When asked questions about her property and finances she directed the investigator to speak to her sons. She was unable to confirm when the EPA was executed or any details about it. The investigator reports that during the interview MT mentioned AT more than NT but appeared to trust that her sons will act in her best interests. The investigator concludes that MT presents with little knowledge and insight into her personal and financial matters and requires assistance.
NT challenges the report of the Public Advocate's investigator and asserts that more information and more meaningful responses would have been gained had an interpreter been used to conduct the interview because of MT's limited English. However, no issue is taken by the parties with the medical and other allied health reports. In his submission NT states that MT has 'short term memory loss'. AT makes the same statement in his application. All parties agree that now MT cannot make decisions about her financial affairs.
The Tribunal is satisfied that the presumption of capacity is set aside and that MT is unable by reason of a mental disability described as cognitive impairment or shortterm memory loss, to make reasonable judgments about her estate. She is therefore a person for whom an administration order may be made.
The next question is whether MT is in need of an administrator of her estate or whether her needs may be met less formally.
When considering whether a proposed represented person is in need of an administrator of her estate there must be consideration of whether there are less restrictive alternatives available to meet her needs.
MT executed an EPA on 18 August 2017 appointing her sons AT and NT as joint and several attorneys. An EPA may generally be considered a less restrictive option for the management of the financial and legal affairs of a person who has lost capacity.
AT reports that he has been operating on the EPA to pay the necessary accounts of MT. However, he says that he and NT have been unable to resolve the issue of the payment of the RAD required by the Facility where MT is resident and has brought the application to the Tribunal because of his concerns about the management of his mother's affairs.
When considering whether an existing EPA can be a less restrictive alternative to the appointment of an administrator the Tribunal must consider whether the EPA is operating to meet the needs of the donor.
AT says that when MT entered residential care NT agreed to pay the $350,000 RAD required by the Facility but he has not done so.
AT says that NT built a house on the back half of MT's property in 2008. According to the material before the Tribunal the development was made subject to conditions which have not been fulfilled and a caveat was lodged by the local government authority in 2010. The property has not been subdivided and the title remains in the name of MT. Proposals for sale or subdivision of the property to realise funds to pay the RAD are not agreed by AT and NT as the attorneys.
The Public Advocate's investigator reports that MT has been a permanent resident of the Facility since September 2017. The investigator reports that once the property of MT becomes an assessable asset (two years after her entry into aged care) that her care costs will increase significantly and her pension will be reduced.
The investigator's report includes further details of other property developments undertaken by NT.
The Financial Information Service record of interview submitted by AT sets out four scenarios for the management of MT's finances at the expiration of the exemption period of two years. The only scenario where there is not a shortfall of income over expenditure for MT is scenario 4 which is favoured by AT. NT favours scenario 3 which involves subdivision of MT's property and gifting the second title to NT.
NT is reported to have agreed to pay the current Daily Accommodation Payment charged by the Facility for MT. Email correspondence from NT dated 15 June 2018 NT notes that a payment was not made. This was explained due to incorrect banking details being given. The agreement to pay appears to have occurred only after the proceedings commenced in the Tribunal.
In his submission NT says that when he proposed to build on MT's land in 2008 that MT signed loan documents to help him obtain necessary finance. NT says that the reason MT gave consent for him to build on her property was that he will inherit that area of the property after her demise (Submission filed 28 May 2018 para 2.4).
In a later submission filed on 13 June 2018 NT says that the land was gifted to him by MT. The two positions put by NT regarding MT's property appear to be inconsistent.
NT says that when asked to pay the RAD 'upfront' he 'agreed to do whatever he can'. However NT says that following his latest financial review he is not confident that he will be able to do so (Submission para 6). In the submissions put to the Tribunal for NT regarding this matter it is said that NT is keen to financially secure the future of his adult daughters.
The need for the payment of the RAD and the failure of the attorneys to agree about fundamental decisions for the estate of MT demonstrates that the EPA cannot work effectively for the management of MT's estate.
An additional consideration is that s 107 of the GA Act sets out the obligations of attorneys appointed under an EPA. Those obligations include to act with reasonable diligence to protect the interests of the donor (s 107(1)(a) of the GA Act ).
An attorney cannot allow his own interests to conflict with the interests of the donor or prefer the interests of others including those of his children. In this case there is a significant risk that the interests of NT are or may come into conflict with those of MT. There are also risks to the estate of MT including matters identified by AT and in the Financial Information Service report of loss of pension income and further interest accruing on the unpaid RAD.

In these circumstances the recommendation of the Public Advocate's investigator that the EPA be revoked is accepted.
The Tribunal finds that the EPA is not a less restrictive alternative for the management of MT's estate and that MT is in need of an administrator of her estate.

Wishes of MT

It is submitted for NT that the Tribunal should 'directly interrogate' MT or analyse the contents of her will.
It is submitted that:
… analysing the contents of the will is imperative in ascertaining the final views and wishes of [MT] to arrive at the best possible outcome for her estate. It is also a vital piece of information in preserving the tenure and/or devolution of her property at [address suppressed] which consists the majority of her estate.
(Submission 13 June 2018 paras 5.3 and 3.3)
The Tribunal did not take up the proposal that MT be interrogated by the Tribunal preferring to follow the adopted practice of referral of the question of gathering the views and wishes of the proposed represented person (who is unlikely to attend a hearing) to the Public Advocate for investigation.
The Public Advocate, the independent statutory officer, has functions under the GA Act to seek to advance the best interests of the represented person at hearings, to present to the Tribunal any information that is relevant to the hearing and report on any investigation referred (see GA Act s 97(1)(b)(i)(ii)(iii)).
The Tribunal accepts the evidence of the Public Advocate's investigator that MT presented as requiring assistance to manage her finances, as this is consistent with the primary carer and the medical reports. It also accepts the observation of the investigator that MT appeared to trust her sons to act in her best interests and that her wish is that if orders are made that her sons be appointed.
In respect of NT's submission that the Tribunal require the will of MT to be filed, the Tribunal did not find it necessary to view the will of MT to determine this application. The Tribunal does not accept the submission that analysing the will of MT would assist the Tribunal in arriving at the best possible outcome for MT's estate.
The role of the Tribunal is to determine the application before it, that is, the application for the appointment of an administrator of MT's estate in her lifetime. The terms of MT's will are not relevant to the questions of whether MT is a person for whom an administration order may be made or whether she needs an administrator of her estate.
The terms of a will may be relevant to the question of who may be appointed the administrator (see for example s 68(2)(b) of the GA Act). In addition, the appointment of an executor in an unrevoked will may provide guidance to the Tribunal as to the wishes of a proposed represented person for an appointment of an administrator. In this case as noted, the Tribunal is satisfied that the wishes of MT are clear in this regard as expressed to the Public Advocate's investigator and can also be gathered from her appointment of her sons as her attorneys in the 2017 EPA.

Who should be appointed administrator

In submissions by NT filed on his behalf on 28 May 2018 he asserted that an administration order was not needed and the EPA was sufficient to meet the needs of MT's modest estate. However, in submissions filed 13 June 2018 NT concedes that the conflict between the attorneys cannot be resolved and that he does not oppose the appointment of the Public Trustee.
The Tribunal considered the appointment of AT as administrator of the estate as proposed by the Public Advocate's investigator as an alternative to the possible appointment of the Public Trustee.
The Tribunal is satisfied that AT has acted and will act in the best interests of MT.
AT identified the requirement for the payment of the RAD for MT and has attempted to negotiate with NT without success. AT brought the application to the Tribunal in an effort to resolve the impasse with NT with regards to that payment. He is identified as the primary carer of MT in the 'My Support Plan'. AT has demonstrated his ability to work with the Public Trustee to continue the payments of personal accounts for MT.
AT's appointment would also be consistent with MT's expressed wishes and a less restrictive order.
The material filed by the parties including copies of text messages between the sons of MT makes clear the level of conflict between them. The messages contain abusive comments from NT directed at AT regarding the decisions required to be made in the management of MT's estate. The material also refers to lack of communication and apparently deteriorating relationships in the wider family. AT's appointment will likely increase the existing conflict between the sons of MT who both maintain regular contact with her. That conflict might also act as a barrier to the timely resolution of payment of the RAD.
The other consideration is whether AT would be able to perform the functions required in the management of this estate. The estate is a modest one but there is an obvious complication of the building on MT's land by NT. There is a caveat on the land lodged by the local authority. There are competing scenarios set out in the Financial Information Service record of interview which require consideration and the financial arrangements for residential aged care to navigate.
It is of some concern that AT does not refer to and appears not to have sought legal advice or assistance in respect of these matters.
In Holt and Another v Protective Commissioner (1993) 31 NSWLR 227, Kirby P as he was then, weighs up the factors which might be considered in the appointment of a family member or the Protective Commissioner as manager of the estate of a protected person. (The Protective Commissioner plays a similar role to that of the Public Trustee of Western Australia when appointed an administrator of an estate under equivalent legislation in New South Wales).
The identified advantages of the appointment of the Protective Commissioner were enumerated as follows at 242:
(i)the manifest independence of his statutory office;
(ii)the advantages of a dispassionate and neutral approach where there is potential for family conflict and sharply divided views concerning the best interests of the protected person;
(iii)the expertise of his staff, their experience in managing estates, the know how accumulated by them over time and their impeccable reputation; and
(iv)the security provided to the estate against loss or damage[.]
The advantages of appointment of AT as a family member which include his devotion to MT's best interests, the administration of the estate being free of fees and the personal contact that he would have with MT as her administrator are outweighed in this case in the Tribunal's judgment by the experience, expertise and neutrality of the Public Trustee.
Although the Tribunal must ascertain the wishes of MT, the primary obligation is to act in her best interests. While accepting that MT would prefer AT to be her appointed administrator, given the complexity of the circumstances and the conflict between the sons regarding the property of MT the Tribunal considers that her best interests are served by the appointment of an independent administrator with the requisite skills and knowledge together with independence from family conflict.
Unfortunately MT has a progressive condition and will need a substitute decisionmaker in the longerterm. However, once the issue of the property is resolved the administrator of the estate will be straightforward and AT might propose his appointment as administrator. The order should be reviewed in three years to consider that possibility.
While as noted the Tribunal did not require a copy of the will to determine the application, access to the will of MT may assist the administrator in the clarification of the extent of the estate given the apparently inconsistent positions put by NT regarding the property of MT. It may also be relevant to the administrator in determining whether further orders might be sought by the administrator under paragraph (e) of Sch 2 Pt B of the GA Act for the purposes of preserving the tenure and or devolution of MT's property as asserted by NT.

Orders

For the reasons given the Tribunal makes the following orders:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The enduring power of attorney dated 18 August 2017 by which MT appointed NT and AT to be her attorneys, is revoked.
3.Pursuant to Sch 2 Pt B cl (f) of the Guardianship and Administration Act 1990 (WA) AT must, if it is in his possession, provide a copy of the will of the represented person to the Public Trustee of Western Australia within 14 days of the date of this order.
4.The administration order is to be reviewed by 31 July 2018.

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