NB - [2023] WASAT 88 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   NB [2023] WASAT 88
MEMBER:   MS C SADLEIR, MEMBER
HEARD:   12 APRIL, 19 JUNE AND 22 AUGUST 2023
DELIVERED          :   26 SEPTEMBER 2023
FILE NO/S:   GAA 605 of 2023

DL
Applicant
NB
Represented Person

Catchwords:

Mental disability – Vulnerability to scams

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(7), s 4(3)(d), s 40, s 64(1)(a), s 65, s 68(3)

Result:

Private plenary administrator appointed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Represented Person	:	Mr J Jo

Solicitors:

Applicant	:	In Person
Represented Person	:	Rebus Legal

Cases referred to in decision:

FY [2019] WASAT 118
XYZ (Guardianship) [2007] VCAT 1196

REASONS FOR DECISION OF THE TRIBUNAL:

Background

NB and LB have been married for some 57 years and have raised six children. They worked hard and achieved much in their lives and careers. NB holds bachelor's degrees in Music and Speech Pathology. LB worked for many years as a builder. They are now retired and receive the aged pension.
LB and NB's children hold concerns for LB and NB's financial security. In the past, NB and LB have been bankrupt twice and, apart from that, their children say they have never achieved financial stability. They are a supportive family; NB and LB have helped their children out financially and their children have reciprocated by loaning them sums of money.
The family's greatest concern is the fact that, in recent years, the couple has fallen victim to several scams which has led to them losing tens of thousands of dollars.
This concern was heightened given the couple are the main joint beneficiaries of the estate of NB's mother, LA, who died in 2022; they are to receive the balance of the estate funds – some $450,000.
While some estate funds (about $255,000) were advanced to LB and NB to pay out credit card debt and loans given by family members,[1] the remainder of the estate funds (about $450,000) have to date been withheld by the executor of the estate (LB and NB's daughter, MB) due to concerns it would be given to scammers.
[1] With a further $30,000 paid to the Public Trustee to pay outstanding debt after their appointment pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) (GA Act).
All family members were concerned that with the rate of spending, LB and NB will be left with nothing for their future financial security; they are no longer willing to subsidise the couple's spending. MB gave evidence that she believed LB and NB had spent about $65,000 between 17 November 2022 and some time in January 2023.[2] She said:
They were our concerns they kept accelerating at that amount and that was only in the short period ... no‑one wants Mum and Dad not to have a life where they can go on holidays and they can buy stuff for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: NB [2023] WASAT 88
Case: [2023] WASAT 88
Decision Date: 26 SEPTEMBER 2023

CaseChat Overview and Summary

In this matter, NB was the subject of an application seeking to revoke a prior order that appointed an administrator to manage the estate of the represented person, who suffers from a mental disability. The application was heard by the Tribunal and involved considerations of the individual's vulnerability and the appropriateness of the current administration arrangements. The legal issues centred on whether the prior order should be revoked, and if a new administrator should be appointed with specific powers and duties. The Tribunal was required to assess the individual's capacity to manage their own affairs and the necessity of continued administrative oversight.

The Tribunal examined the evidence presented, including assessments of the represented person's mental state and capacity. It was noted that the individual had been vulnerable to scams and financial exploitation in the past, which necessitated some level of oversight. The Tribunal considered the current administration order and the proposed new arrangements, weighing the benefits of continued professional management against the individual's potential for self-management. Ultimately, the Tribunal found that the represented person's vulnerability to scams justified continued administration but recognised that a more tailored approach was required.

The Tribunal revoked the previous administration order and appointed a new administrator with specific powers and duties. The new administrator was authorised to manage the estate while providing some level of financial autonomy to the represented person. The Tribunal also set a cap on annual expenditure for gifts to protect the individual's assets. The administration order was set to be reviewed within a year to ensure it remained appropriate to the individual's circumstances.

The Tribunal's orders included the revocation of the prior administration order, the appointment of a new administrator, and specific directives regarding the new administration order's scope and review schedule. This decision reflects the balance between protecting vulnerable individuals and respecting their autonomy.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal orders: Administration 1.The order made on 25 May 2023 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.2.SBN is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA). 3.The administrator is authorised to expend up to a total of $5,000 per annum on gifts on behalf of the represented person.4.The administration order is to be reviewed by 26 September 2024.