NB
[2023] WASAT 88
•26 SEPTEMBER 2023
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 their house and have money to spend and do whatever they want. It's just seeing the potential risk of seeing so much of it just gone in such a short period of time.[3]
[2] Paid to LB and NB from the estate of LA; ts 22.
[3] ts 22.
LB and NB have engaged the services of a lawyer, Mr Jo, to recover the balance of the inheritance. When it is received, LB has said he wants to invest his inheritance in cryptocurrency; for her part, NB has apparently agreed to buy a BMW motor vehicle for $157,000.[4]
[4] ts 63.
In February 2023, an application was made by DL, LB and NB's son‑in‑law, under s 40 of the Guardianship and Administration Act1990 (WA) (GA Act) seeking the appointment of an administrator for NB. At the time this application was made – and indeed for some time afterwards – the couple was convinced that a well-known musician (with whom NB believed she was communicating online) had gifted NB a car, and it was only necessary for them to pay delivery fees in order to receive it. The couple disregarded the advice of family and anti-fraud authorities that this was, very obviously, a scam, and went to great lengths to satisfy the scammers' persistent demands for money (via Apple Gift Cards, Steam Cards, wire transfers via services such as Western Union, and deliveries of cash by Australia Post).
Hearings on this matter were held on 12 April and 22 August with a directions hearing on 19 June 2023. After the initial hearing on 12 April 2023, NB was referred to a consultant physician, Dr AF, and underwent cognitive testing and medical scans. After receiving Dr AF's initial reports indicating that NB was suffering from cognitive impairment, I made orders appointing the Public Trustee as administrator for NB, pursuant to s 65 of the GA Act, on 25 May 2023. The final hearing took place on 22 August 2023.
I am satisfied, and I find, that NB is a person for whom I can and need to appoint an administrator. SBN, (one of NB's children) is willing, and I find her suitable, to be appointed as the plenary administrator. The administration order is to be reviewed within one year.
My reasons for decision follow.
The principles to be observed
In making a decision the Tribunal must observe the following principles:
•the Tribunal's primary concern is the best interests of the person concerned;[5]
•every person is presumed to be capable of looking after their own health and safety; making reasonable judgements in matters relating to their person; of managing their own affairs; and of making reasonable judgements in respect of matters relating to the estate; until the contrary is proven to the satisfaction of the Tribunal;[6]
•orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;[7] and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned and take them into account.[8]
The evidence before the Tribunal
[5] GA Act, s 4(2).
[6] GA Act, s 4(3).
[7] GA Act, s 4(4).
[8] GA Act, s 4(7).
The Tribunal received the following medical reports concerning NB:
·A report from Dr ER dated 6 April 2023, which included a discharge summary from Sir Charles Gairdner Hospital dated 15 May 2022;
·A SAT Medical Report from Dr AF, consultant physician, dated 11 May 2023;
·A letter from Dr AF to Dr ER dated 11 May 2023;
·A letter from Dr AF to the Tribunal dated 27 June 2023;
·A letter from Dr AF to Dr ER dated 27 June 2023; and
·A Mini Mental State Examination test conducted by Dr AF (undated).
In addition, the Tribunal received the following documents:
·Report of Office of Public Advocate (OPA) investigator dated 6 April 2023; and
·Report of the Public Trustee (as administrator pursuant to s 65 of the GA Act) dated 14 June 2023
From family members, the Tribunal received copies of submissions, emails, transaction statements, online messages and other information concerning NB and LB's interactions with scammers.
From MB, the Tribunal received a copy of the will of NB's mother LA dated 16 October 2020, showing LB and NB as joint beneficiaries of the residue of that estate (after a gift of chattels to NB's brother), and the grant of probate dated 29 June 2022.
Attendance at hearings
On 12 April, 19 June and 22 August 2023, NB and LB, their legal representative Mr Jo, their son‑in‑law (applicant) DL, and their daughters ML, SBN, MB and TB all attended.
On 12 April and 22 August 2023, the Public Advocate was represented by Investigator Advocate, CH, who also provided a written investigation report. At the directions hearing and the hearing on 22 August 2023, the Public Trustee (as interim administrator for LB) was represented by AI.
At the initial hearing on 12 April, and at the directions hearing on 19 June, NB and LB's sons, LMB and SLB, attended but they did not attend the final hearing on 22 August 2023.
On 22 August 2023, I received evidence and/or submissions from NB and LB and Mr J on their behalf, from DL, ML, SBN, MB, TB, CH and trust manager AI.
Does NB have a mental disability?
This application was brought by DL to appoint an administrator for NB, in which her decision‑making disability is described as follows:
[NB] is intelligent and capable, but is unable to use reason and consider consequences during decision making regarding health or finances. [NB] is reckless with spending, unable to logically decide what to spend and reasonable amounts. She is unable to discern real websites from fake making her vulnerable to continued fraud. Between 2020 and now, [NB] has been involved in an online romance with a person she believes to be famous cello player [H]. As a result, she has transferred at least $20,000 to scammers using Moneygram, Western Union, gifts, gift cards and cash sent via registered post. She is secretive, has isolated herself from family, and supplied scammers with her ID documents.[9]
[9] Application dated 8 February 2023.
To make an administration order, the Tribunal must be satisfied that a person is unable, by reason of a mental disability, to make reasonable judgements in respect of matters relating to all or any part of his or her estate.[10] I therefore turn to the question of whether NB has a mental disability.
Medical evidence
[10] GA Act, s 64(1)(a).
Following the lodging of the application, medical evidence was sought on NB's capacity to make reasonable decisions in respect of her financial and legal affairs.
Dr ER, a GP, said in his report to the Tribunal of 6 April 2023 that NB had a mental disability, being 'family related stressors contributing to episodic anxiety and emotional distress' and that this was a fluctuating condition, but that this had no effect on NB's cognitive capacity to make reasonable decisions about simple and complex financial matters, and legal matters.[11] I note that Dr ER's report was completed prior to the assessments and scans conducted by Dr AF.
[11] Report of Dr ER dated 6 April 2023. The reference to 'family related stressors' may be a reference to discharge summary from Sir Charles Gairdner Hospital attached to Dr ER’s report. That summary recorded NB’s admission over 14 – 15 May 2022 when she presented with (among other things) word finding difficulties. She was confused and unable to provide her medical history. Extensive examination could find no reason for what appeared to be a sudden onset of word finding difficulties, but the notes state 'mother is dying causing patient a lot of emotional stress – matching onset of symptoms.'
Dr AF, in his report to Dr ER dated 11 May 2023, notes that he administered a Mini Mental State Examination on NB in which she scored 29/30. He states 'she has risk factors for mild cognitive impairment' given a history of cerebrovascular disease. He notes:[12]
She seemed to lack some insight into certain issue (sic). She claimed that her husband's cognitive issues were not of any great significance.
Furthermore, she was herself subject to a financial scam it seems. For some reason, she was trying to make contact with a famous Croatian cellist, which she had never met before, but knew of. She says that she made 2 false attempts, (scammers encountered) and then finally did make contact with him. They corresponded through email and apparently by phone. She mentioned to him that she needed a new car and he said he would give her one of his cars. They were then sending money for the delivery fees and the car never arrived. This sounds to me like a scam and she seems vulnerable to it just as much as her husband.
[12] Report of Dr AF dated 11 May 2023, page 2.
The SAT Medical Report completed by Dr AF on 11 May 2023 says that NB suffers from a mental disability namely 'cognitive impairment' but at that time, he was unable to say if the condition was progressive, improving, fluctuating or static. His view was that NB was capable of managing simple financial matters but he was unsure of her ability to manage complex financial matters, or legal matters. He did believe she was capable of managing all personal and medical decisions. He believed she could make an Enduring Power of Attorney document.
In June 2023, Dr AF reviewed NB's MRI scan which showed parietal lobe atrophy but no specific temporal frontal atrophy, and mild cerebral small vessel ischaemia. A PET scan showed no pattern of decreased metabolism suggesting dementia. Following these scans Dr AF in his letter to the Tribunal dated 27 June 2023 said:
[NB] does not currently have any evidence of a neurodegenerative dementia syndrome.
My opinion ... regarding her capacity remain as answered … .
(in his SAT Medical Report dated 11 May 2023)
… I still find that NB is capable of handling simple financial issues. My answer on whether she could handle complex financial issues was that I was unsure and I remain so. It is hard to tell if she has ongoing risk of financial loss through scams and other judgment issues, but these are occurring in the setting of old age and mild cognitive impairment and not in a setting of neurodegenerative dementia syndrome.'
(emphasis added)
In considering the medical evidence provided, I give more weight to that provided by Dr AF. This indicates that, despite scoring in the normal range on a screening test and having imaging which does not currently show any evidence of a neurodegenerative dementia syndrome, NB does have mild cognitive impairment and judgement issues leading to ongoing risk of financial loss.
Evaluation of other evidence of mental disability
In considering NB's educational attainments, as against the evidence provided by the Mini Mental State Examination, I note the comments made by Billings J in XYZ (Guardianship) [2007] VCAT 1196 at [69]:
69. The general need for caution in capacity assessments is expressed by Darzins et. al. in this way:
If capacity assessments place too much weight on cognitive function tests, like the [MMSE] or the cognitive capacity test, poor performance on these tests may be interpreted as evidence of incapacity. These tests are primarily language based and influenced by education, culture and language. If tests of cognition are used to determine capacity, some people who are capable, but who score poorly on these tests because of ignorance, lack of education or language difficulties, will be inappropriately labelled as incapable. Conversely, incapable people who have received more education and have well developed language skills, may erroneously be judged capable by these tests'. Who can decide? The six step capacity assessment process. Darzins et. al., cited above, at p. 8.'
(emphasis added)
Billings J at [66] of XYZ also notes:
66. …
… [T]he most appropriate way to assess how someone functions in the real world after an injury is to move in with them for a month and watch how they cope in their daily lives; but how many clinicians have the time, patience or interest to undertake such an assessment?
[quoting from: Crowe, The parallel universe: Does neuropsychological assessment tell us anything about the real world? InPsych highlights, June 2005 (>
In addition to the medical evidence, the evidence given at the hearing and through documentation provided by family members[13], was that two to three years ago family became aware that NB was communicating online with what ML called 'celebrity friends'; the main object of NB's interest was in a noted cellist, 'H'. NB was providing online identities with mobile phones, gift cards and transfers of money by various means.
[13] Evidence at the hearing on 22 August 2023 was that each of MB, TB and ML had gathered and shared information concerning NB and LB’s contact with scammers. The bundle of records provided to the Tribunal came mostly from these family members.
NB had acknowledged in the past she had been scammed by online entities pretending to be 'H', and that was when she reached out to what was termed the 'real H'. The online chat records provided to the Tribunal between NB and this 'real H' have a romantic flavour.
NB gave evidence at the hearing that she had paid for a 'gold card' so that she could meet the 'real H'. She also said she paid him $20,000 so that he could record music. Despite saying at the hearing that she now realised that 'the real H' was another scammer, this was by no means clear; she said she sent money for 'recordings' because:
Look, he's a musician. … We were both classically trained. This is what started it all off … And I was amazed at what the cello can be turned into from this dumb instrument to being something so beautiful like a voice. So it was music and we both love music. And that was it. There's no romance.[14]
[14] ts 49.
The majority of money taken in the scam involving the 'real H' was for delivery fees for a car, said to be a gift from the 'real H'.[15] The delivery company 'Tes Delivery' made a succession of requests for money which NB sought to satisfy; a variety of excuses were given by Tes Delivery to explain why the car never arrived (including, at one stage, the abduction of a delivery driver)[16]. There was a series of requests to NB for money to be paid via bank account (these were blocked by the bank), wire services (such as Western Union), and by sending parcels of cash via Australia Post. Instances of these activities are provided below. The couple's interaction with scammers continued well after the SAT application was lodged, and the first attendance at hearing on 12 April. At the same time, family were having to advance funds to both LB and NB to make sure that they had food and were able to pay for necessaries such as medications and to pay accounts.[17]
[15] At the hearing LB estimated about $40,000 was paid to Tes Delivery (excluding those sums blocked or intercepted by family).
[16] Email to NB from [email protected] dated 27 January 2023.
[17] Following the hearing on 12 April 2023, LB requested funds from the estate to pay off credit card debts of around $25,000, and for a new TV and sound system totalling $10,000.
In December 2022, after ML contacted Department of Consumer Protection, a lengthy email was sent to NB from a consumer fraud liaison officer, pointing out a number of reasons why she was victim to a scam and not in touch with the true musician, 'H'[18]. At hearing it was apparent NB was more aggrieved by what that email revealed ML to know about her private online communications than concerned about clear evidence of the scam.
[18] Email to NB from WA ScamNet – Consumer Protection dated 9 December 2022.
At times the correspondence between NB and the online entities evidenced NB's dismay at being unable to pay Tes Delivery. On 17 March 2023, NB sent a message to '[email protected]' which said 'I have just been told our bank won't make the payment [of $10,000]. This is because my daughter is causing havoc everywhere ... she has contacted my lawyer to say I am being scammed I have let him know this is untrue…'[19]
[19] Email from NB to [email protected] dated 17 March 2023.
It is apparent that NB was, and still is, very angry at what she saw as this 'interference' from her family in trying to stop her sending money to the fraudsters. She said 'I resent the intrusion to the depths they went to. I think it was uncouth. It was wrong and it was immoral'.[20] While she said that she didn't resent the family making the application:
I don't resent them caring … [but] I thought they can't tell me what to do… And then it got worse and worse and it was wrecking our family. They were all conspiring together. … You would think I had ... been a criminal or done something... bad. ... And this was just this little thing. If I could have got the car – that was my main incentive. ... But I resented the way ... they went around to do it.[21]
[20] ts 59.
[21] ts 62.
Following the lodgement of the applications for LB and NB to the Tribunal, the Tribunal asked the Office of Public Advocate to conduct an investigation. The investigator advocate visited NB and LB on 31 March 2023, when he reported:
… both [LB and NB] confirmed their awareness of, and reasons given for the applications …
…
[NB] admitted to having been scammed in the past and said that it was actually in the aftermath of that that she reached out to 'the real [H]' and they struck up a friendship… .
…
The representative asked about previous scams that might give their children a legitimate cause to be worried… [NB] said that she had also been scammed a while ago…. This was a person purporting to be [H] that she now knows to have been fake. She then reached out to 'the real H' … .
[NB] said that she is sure that the gifted car is real and that it's the delivery company they are having issues with, not [H] … .
The representative gave his view that it was more likely than not that the person that NB has been speaking to online is still a fraudster. [NB] said, 'if it is, so what? Even if he isn't real, I'm just having some fun and not hurting anybody'. …[22]
[22] OPA Investigator report dated 6 April 2023.
The Full Tribunal in FY [2019] WASAT 118 at [32] noted that the definition of a mental disability is non-exhaustive, and inclusive: [23]
… [N]othing in the definition of 'mental disability' under the GA Act requires that a finding of the existence of a mental disability be based on a finding as to the existence of one, or more than one, recognised medical conditions or disorders. A finding that a person has a 'mental disability' may, of course, be referrable to the existence of one, or a combination of more than one, identified medical conditions. In other cases, the underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, but the existence of the mental disability may be beyond doubt.
Findings regarding mental disability
[23] FY [2019] WASAT 118 (FY) at [32].
Having regard to the evidence, I am satisfied, and I find, that NB has a mental disability, for the following reasons:
1.The diagnosis by Dr AF of mild cognitive impairment;
2.The evidence of a mental disability provided by:
(a)NB's persistent vulnerability to scammers and her inability to appreciate and understand that vulnerability;
(b)NB's inability to critically evaluate significant evidence of online fraud, both in and of itself and through interventions from family and independent third parties;
(c)NB's dismissiveness of the advice of independent parties and the evident anger directed toward family members for their interventions;
(d)NB's perseverance in seeking to satisfy scammers' demands for money while at the same time relying on family help to pay for food and other necessaries;
(e)NB speaking, at hearing, about funding 'recordings' for the 'real H' because of his musical abilities, and about her fellow feeling with him, as if she had been in touch with the real musician, demonstrating her persistent vulnerability and lack of insight and judgment in the face of all the evidence.[24]
Does NB have capacity to make reasonable decisions in respect of her estate?
[24] ts 49.
In FY at [53] the Tribunal said:
An individual's ability to make reasonable judgments in respect of their estate may depend on a variety of factors, such as their health, particularly their mental health, at any point in time. Fundamentally, however, a person's ability to make reasonable judgments about their estate requires that they have the intellectual ability necessary to make decisions of that kind. An individual's ability to make reasonable judgments in respect of their estate requires that they have, amongst other things, the ability: to understand the need for, and sources of, income available to them; to understand the value of any income received relative to items of expenditure; to identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into contracts such as those for the purchase of a phone, household items, a car, or a house); to organise their affairs so as to be able to meet debts as they fall due; and to identify and implement problem solving strategies for resolving any unexpected financial issues.
As the holder of degrees in Speech Pathology and Music, NB is clearly intelligent. In addition, she gave evidence that until LB retired, she was in charge of the couple's finances and paid the household bills. There is no question that she understands the value of money and could devise a budget. Rather, the issue is one of judgement.
I find that NB lacks capacity to make reasonable judgments regarding her estate – it is apparent that she is not capable of living within her means. She is unable to prioritise necessary expenditure for day to day living over discretionary items. The evidence at hearing was that, from her mother's inheritance monies, about $285,000 (shared between LB and NB) has gone directly to pay off loans given previously by family members, and been used to pay down LB and NB's credit card debt.[25]
[25] ts 20 – 21.
At the same time, LB and NB were asking family to provide them with money for food, bills, and to pay for credit card debt (which had built up again to the limit by May 2023, after being paid down previously in November 2022). On 8 May 2023 MB sent the OPA investigator a summary of relevant events concerning LB and NB following the first hearing on 12 April 2023 as follows:[26]
[26] Email from MB to OPA investigator dated 8 May 2023.
April 13 – Dad had spoken to [LMB] and advised him that [MB] must have intercepted another cash payment of $10 000 sent by [NB] and [LB]. They were collecting this from the post office this day.
14 April – [TB] spoke with [LB]. [NB] and [LB] were out and about (we suspect trying to send the previous days cash of $10 000 to the scammers).
Week April 14 to 28 – [LB] advised [LMB/TB] that the car from the 'Tes delivery' was arriving within 7 days and informed LMB/TB] that [H] was coming over in 2 weeks.
[NB] had spoken with [TB] about a future appearance on stage once she had practiced the piano some more (presumably with [H]).
May 1st – [LB] called [LMB] and asked to borrow $6000.
May 2nd – [LB] spoke with [TB] and advised her that he hadn't had any of his breakfast/ fruit for 2 weeks.
[LB] advised [TB] that previous Friday of only being able to shop with $60.
I went and did a good shop and delivered this to [NB] and [LB]s' house.
May 5 – [TB] dropped gift vouchers into [NB] and [LB] - $100 fuel, $300 Coles $100 Bunnings.
May 7 – [LB] called [TB] requesting $2000 required for bills (direct debits) as they don't have any money. [LB] advised that all 3 credit cards were at the limit.
These credit cards were payed (sic) in full mid November a credit limit at the time of payment was $50 000 – 3 cards totalling $50,000.
[LB] required $300 for prescriptions and $50 for a hair cut. I transferred $350 over to [LB] from my personal account… .
[LB] has further bills to be payed (sic) closer to the due date. (I will transfer this across).
…
[NB] is still showing signs of being deeply involved in a relationship with [H] and Tes delivery which is ongoing (even though [NB] sometimes says it over).
…
Apart from the thousands of dollars NB has caused to be sent to scammers, she wants to buy a BMW car for $157,000, after which the balance of her half share of inheritance will be $75,000 – $80,000.[27] If the car purchase proceeds, NB will have very little with which to achieve financial stability, particularly as NB otherwise receives the aged pension. It is not in keeping with the current spending on discretionary items, however, that NB will be capable of saving this sum.
[27] See ts 63.
I am satisfied, and I find, that NB is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate because she is unable to:
… identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into contracts such as those for the purchase of a phone, household items, a car, or a house); to organise their affairs so as to be able to meet debts as they fall due …[28]
as is demonstrated by her ongoing need to seek financial support from her children for essentials, while sending money to unknown entities online and planning to spend the majority of an inheritance on a luxury vehicle.
Need
[28] FYat [53].
The OPA investigator, and family members who attended the hearing on 22 August 2023, are of the view that NB is still, and will continue to be, vulnerable to financial exploitation through scams. ML said NB 'is at very high risk of being influenced by these online relationships ... she is very influenced by them'[29] and that, in her view, NB was in need of an administrator.
[29] ts 36.
At the hearing on 22 August 2023, NB said that she had realised 'about a month ago' that a car was not going to be delivered. She said that she had stopped contact with online identities 'three weeks ago'.[30]
[30] ts 52.
NB said that she will not fall victim to scammers again, saying: 'It was a phase I went through. I really wanted the car… the whole thing I wanted to do was give TB a car to help them financially …'[31]
[31] ts 60.
I am satisfied and I find that there is a need for an administrator to be appointed to manage NB's finances and legal affairs for the following reasons:
1.I believe NB is likely to fall victim to future scams. NB's explanation that the most recent scam continued because of her desire to give TB a car is not plausible. Her evidence in the hearing quoted in paragraph [33] shows that the attraction to NB is (the simulation of) a real relationship with an admired musician.
2.It is not clear that NB even now accepts she has been scammed.[32] Her belief in scammers posing as celebrities has been persistent, through previous 'H' characters, and has continued long after this application was lodged.
3.NB has consistently disregarded advice from independent third parties who have provided persuasive proof of scams to her; she has shown determination in seeking to satisfy scammers' demands for money.
4.She (with LB) has inherited around $700,000. Of that sum she has spent (or has committed to spend)[33] all but $75 – $80,000 of her share. There is a real risk that due to NB's disabling impairment of judgment, the balance will be quickly and recklessly expended, in the absence of an administrator.
Who should be appointed as administrator?
[32] See [33] above.
[33] The sale was not yet complete at the time of the hearing.
Despite NB's hostility to family for the bringing of the application, her strong preference was that a family member be appointed, if an appointment was needed; she said this both at the final hearing and earlier, when the Public Trustee was appointed interim administrator pursuant to s 65 GA Act.
At the final hearing NB asked that SBN be considered for appointment as her administrator and (after some thought) SBN indicated her willingness to act.
SBN said that she got on well with NB, and she felt able to act in NB's best interests (and to withstand the force of NB's very strong views and wishes). She said she wants to preserve LA's inheritance for her mother 'to make sure [she doesn't] have nothing left'.[34]
[34] ts 82.
SBN is responsible for accounting and payroll in her work, with no disqualifying factors such as having been bankrupt, or convictions for dishonesty. She had no financial conflicts of interest with NB. SBN had support in taking on the role from NB and other family. Given her qualifications I was satisfied SBN would be able to perform the functions proposed to be vested in the administrator and would be a suitable appointment.[35]
What should the scope of the order be?
[35] GA Act, s 68(3).
A plenary administration order is required, because NB has been unable to meet even basic expenses without repeated financial assistance from her children.
Gifting
Family have been generous with each other; in addition, NB has a large family. I authorise the administrator to make gifts of up to $5,000 per annum to be made on NB's behalf.
When should the orders be reviewed?
The most pressing concern is to receive the inheritance funds for NB's benefit and preserve them for her present and future needs. I consider the orders should in place for one year before review is required, because this will allow early assessment by the Tribunal of whether the appointment of SBN has been successful in protecting NB's financial well-being without compromising the supportive existing relationships within the family (and particularly between SBN and NB).
The decision of the tribunal
The orders made on 26 September 2023 are:
The Tribunal declares that NB is:
(a) unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
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.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C SADLEIR, MEMBER
26 SEPTEMBER 2023
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