NE - [2023] WASAT 30 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   NE [2023] WASAT 30
MEMBER:   MS F CHILD, MEMBER
HEARD:   1 SEPTEMBER 2022 AND 11 JANUARY 2023
DELIVERED          :   12 APRIL 2023
FILE NO/S:   GAA 2923 of 2022
GAA 3367 of 2022
NE
Represented Person

Catchwords:

Guardianship and Administration - Application for review of administration order pursuant to s 85 of the Guardianship and Administration Act 1990 (WA) alleging neglect, misconduct or default - Statutory review pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) of administration and guardianship orders falling due - Reviews heard together - Whether s 77 of the Guardianship and Administration Act 1990 (WA) permits represented person to appoint an agent - Application for review dismissed - Appointments of guardians confirmed - Potential legal action to assert represented person's equitable interest in property of her parents - Need for independent administrator - Public Trustee confirmed as administrator

Legislation:

Family Law Act 1975 (WA) (C'wealth)
Guardianship and Administration Act 1990 (WA), Pt 9, s 3, s 4, s 4(3), s 4(4), s 4(6), s 4(7), s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44(1)(b), s 44(2)(b), s 44(2)(d), s 64, s 64(1), s 64(1)(a), s 64(1)(b), s 69(3), s 70, s 70(1), s 70(2), s 70(2)(e), s 70(2)(g), s 71, s 71(2), s 71(4), s 72(3)(a), s 72(3)(b), s 77, s 77(1), s 77(1)(a), s 77(1)(b), s 79(1), s 84, s 85, s 85(1)(c), s 85(2), s 87, s 102, s 108(1a), s 108(2)(a), s 108(2)(b), s 112, s 113
Guardianship and Administration Act 2019 (Victoria)
Mental Health Act 2014 (WA)
Property Law Act 1969 (WA)
Public Trustees Act 1941 (WA), s 43, s 47, s 47(2), 47(3), s 60

Result:

Guardianship orders confirmed
Public Trustee confirmed as plenary administrator

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

CD [2020] WASAT 41
Ford and Marshall v Marshall & Anor [2003] WASC 116
Full Board of the Guardianship and Administration Board, Re (2003) 27 WAR 475
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
KS [2008] WASAT 29
RK [2022] WASAT 112
SAL and JGL [2016] WASAT 63
SM [2019] WASAT 22
Szozda v Szozda [2010] NSWSC 804

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

L and R (applicants), sisters of NE applied to the Tribunal pursuant to s 85(2) of the Guardianship and Administration Act 1990 (WA) (GA Act) for review of an order dated 11 October 2021 by which the Public Trustee is appointed as the plenary administrator of NE's estate. The application alleged the Public Trustee had been guilty of neglect or misconduct and was unfit to continue as the administrator of NE's estate.[1]
[1] Application form filed 4 July 2022.
The administration order and guardianship orders made for NE, fell due for review pursuant to s 84 of the GA Act in October 2022.[2]
[2] Section 84 of the GA Act provides that when making an administration or guardianship order the Tribunal sets a review period not exceeding 5 years.
The application pursuant to s 85(2) of the GA Act and the statutory reviews were heard together on 1 September 2022 (review hearing) and on 11 January 2023 (final hearing). The decisions on the reviews were reserved following further written submissions being filed by the applicants.
For the reasons that follow, I dismissed the application pursuant to s 85 of the GA Act.
On review of the orders pursuant to s 84 of the GA Act, I confirmed the appointment of the Public Trustee as the plenary administrator of the estate of NE. I also confirmed the guardianship orders which appointed R as NE's limited guardian to determine medical treatment and services for her and the Public Advocate as NE's limited guardian to determine where and with whom she should live and to deal with certain legal matters on her behalf.

Background and history of orders

NE is divorced and has three adult sons. NE lives in a granny flat on the property of her elderly parents (her father, C and mother, M) and has done so for many years.
The Public Trustee was first appointed as administrator of NE's estate on 7 April 2020 with review of that order by 7 October 2021. That appointment followed an application for orders made by the staff of the mental health unit of a hospital where NE was a patient.
Later in 2020, a further application was made by a mental health worker from a community-based mental health clinic seeking the appointment of a guardian for NE. On 4 November 2020, NE's sister R was appointed her limited guardian to make treatment decisions for her and the Public Advocate was appointed NE's limited guardian with additional functions to determine NE's accommodation and related matters and to deal with legal issues on her behalf.
The guardianship orders were made reviewable together with the existing administration order on 7 October 2021.
The original applications and material filed reported that NE had a long-standing diagnosis of Bipolar Affective Disorder and experienced rapid mood cycles between depression and hypomania or mania. When manic, it was said that NE's insight into her mental health condition and her judgment were impaired.
NE had been charged with a number of criminal offences. She had allegedly assaulted her mother in September 2020, resulting in a 72 hour police order to stay away from her parent's home where she had been living in the granny flat. NE had subsequently been admitted to Graylands Hospital as an involuntary patient under the Mental Health Act 2014 (WA). NE had reportedly had eight admissions to hospital since February 2020. She was also facing trial on unrelated charges from 2018.[3]
[3] It is understood NE was convicted of these charges on her plea of guilty - Public Advocate's report 5 October 2021.
NE was said to become verbally and sometimes physically aggressive during times of stress and had received several 'stay away' and Violence Restraining Orders in the previous six months from family and friends. NE's father C had according to the material filed acted as her 'informal guardian' for many years but was said not to be able to continue in that role. Her parents were reported as not coping with her behaviours. It was recommended that NE live in an alternate accommodation unit with support services.
Complex financial and property issues were reported with NE living in the granny flat owned by her parents but to which her own funds (from an informal property settlement with NE's ex-husband) had been contributed for renovation of the property. It was said NE had no security of tenure[4] and had been homeless at times due to the police orders.
[4] Application and social worker's report.
On review of the orders on 11 October 2021 (October hearing) R was confirmed as the guardian to make treatment decisions and in addition was appointed to determine services to which NE should have access. The Public Advocate's appointment was confirmed as limited guardian of NE with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(d)as the guardian ad litem of the represented person, defending or settling any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person; and
(e)to seek legal advice and representation on behalf of the represented person, and to advocate in relation to any police investigation, criminal charges or related proceedings.
The administration orders were amended to provide for the following:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia 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).
2.The administrator is authorised to expend up to a total amount of $500.00 per annum on gifts on behalf of the represented person.
3.The administrator is authorised to communicate with R of [address deleted] Western Australia and L of [address deleted] Australian Capital Territory regarding the represented person's affairs.
These are the orders that are the subject of the current reviews.
At the first review hearing in September 2022, it was reported that NE had successfully completed the terms of an Intensive Supervision Order.[5] NE said she was compliant with her medication and was accepting services from the mental health clinic though not from the NDIS service provider.
[5] Public Advocate.
NE continues to live in the granny flat located on her parent's property and confirmed in the hearing that she did not wish to move.[6] She advised that she was undertaking art therapy and recently had an exhibition of her works.

Principles to be observed

[6] ts 17, 11 January 2023.

In dealing with any proceeding brought under the GA Act, the Tribunal must observe the principles set out in s 4 of that Act.
Under the GA Act, every person is presumed to be capable of looking after their own health and safety making reasonable judgments in respect of matters relating to their person and in respect of their estate and managing their affairs, until the contrary is proved to the satisfaction of the Tribunal.[7]
[7] GA Act, s 4(3).
The principles also provide that guardianship and administration orders should not be made for the person if their needs could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action.[8]
[8] GA Act, s 4(4).
The principles also provide that a plenary guardianship order shall not be made if the Tribunal is of the opinion that a limited guardian would be sufficient to meet the needs of the represented person.[9] Any order appointing a guardian or administrator should be in the terms which, in the opinion of the Tribunal, impose the least restrictions possible on the represented person's freedom of decision and action.[10]
[9] GA Act, s 4(4).
[10] GA Act, s 4(6).
The primary concern of the Tribunal is the best interests of the represented person (or person in respect of whom an application is made). In considering any matter relating to the represented person, the Tribunal is required as far as possible to seek to ascertain the views and the wishes of that person.[11]
[11] GA Act, s 4(7).
On review of orders, if I find that NE still meets the criteria for the appointment of a guardian pursuant to s 43 of the GA Act and an administrator of her estate pursuant to s 64 of the GA Act, I must then consider questions of who should be appointed in those roles and the scope and duration of any orders made.

Evidence

NE attended both hearings in person and gave evidence and her views regarding the reviews. I also heard from the applicants, L and R, from C the father of NE (and of the applicants), from the Public Advocate's delegated guardian, from the solicitor for the Public Trustee and from the trust manager.
Also in evidence were several documents filed by the applicants including the application for review and documents setting out evidence; their submissions and addendums which included copies of correspondence to the Public Trustee; letters of complaint to The Hon the Attorney-General; a letter from C; and other material in support of their application.
Reports from NE's then treating psychiatrist Dr C dated 14 July 2022, a service provider report dated 20 July 2022 from Ms G from the mental health clinic, reports from the solicitor for the Public Trustee, trust manager's report, and a report from the Public Advocate's delegated guardian.
I have also had regard, as I have referred, to the historical reports and material held on the Tribunal's file from the original and subsequent review hearings.
Following the final hearing, L made further written submissions.

Appointment of a guardian and administrator

To appoint a guardian or an administrator either on an original application or on review of orders, I must be satisfied that the presumptions that NE is capable of making judgments about her person, and her estate are displaced and NE is a person for whom a guardian and administrator may be appointed, and she is in need of those orders.
To appoint a guardian for her, I must find that NE has attained the age of 18 years, is incapable of looking after her own health and safety, unable to make reasonable judgments about her person or is in need of oversight and care in the interests of her own health and safety or the protection of others and is in need of a guardian.[12]
[12] GA Act, s 43(1)(a), (b) and (c).
To appoint an administrator of NE's estate, I must be satisfied that she is unable, by reason of a mental disability to make reasonable judgments about any or all of her estate and is in need of an administrator of her estate.[13]

Is NE a person for whom a guardianship and administration order may be made

[13] GA Act, s 64(1)(a) and (b).

There was no challenge from any of the parties to the opinion of Dr C in her report dated 14 July 2022 that NE has a diagnosis of Bipolar Affective Disorder, which Dr C described as a static condition.
Dr C gives the opinion that NE is capable in the sphere of simple financial decision-making but incapable of complex financial decisions such as the management of property or large sums of money or in respect of legal matters. Dr C's opinion is that NE is incapable in all spheres of personal decision-making, in respect of her medical treatment, her accommodation and the services to which she should have access. Dr C notes NE's ability is impacted significantly by [NE's] adherence to medication and [her] mental state. Dr C gives the opinion that NE is capable of granting an enduring power of attorney (EPA) and enduring power of guardianship (EPG). I accept Dr C's evidence.
NE said that in the months prior to the review hearing she had experienced a deterioration in her mental health following some changes to medication but that she had been able to avoid being hospitalised. NE observed she needed to take the medications prescribed for her and agreed with Dr C's opinion that she needed assistance to make decisions, both personal and financial.[14] In later evidence NE said she had learning difficulties associated with a difficult birth and did not have the cognitive skills to manage some matters on her own without assistance.[15]
[14] ts 5, 1 September 2022.
[15] ts 34, 11 January 2023.
When the option of NE having greater control over her expenditure (within an administration order) was being explored, R said that NE essentially spent the money allocated to her almost as it arrived and said she did not consider that it was feasible for NE to take a greater role in the management of her finances. It was R's impression that NE would struggle to manage amounts of money greater than $300.[16] NE did not challenge this. It was also evident that NE was heavily reliant on C to liaise with the Public Trustee and to deal with quite straightforward financial matters on her behalf.[17]
[16] ts 40, 11 January 2023.
[17] Evidence of C, submissions of the applicants and confirmed by the Public Trustee.
I am satisfied that the presumptions set out in s 4 of the GA Act are displaced and find that NE lacks capacity to make reasonable judgments about her person and her estate and to manage her affairs.
I am satisfied and I find that NE has a mental disability being the psychiatric condition[18] of Bipolar Affective Disorder and I am satisfied on the medical and other evidence which includes NE's own assessment, that she is unable, by reason of that disability to make reasonable judgments in respect of any or all of her estate.
[18] Within the definition of mental disability in the GA Act, s 3.
Despite Dr C's opinion that NE is capable of executing an EPA and EPG I am satisfied, and I find that there are no less restrictive alternative to the making of orders.
Although she is presently stable, the nature of NE's mental health diagnosis means that she may be vulnerable to relapse in her condition.
Historically there have been at times deterioration in NE's mental health (including during periods when she has not been compliant with her medications), when there have been disturbances in NE's behaviours and significant tensions within the family. An EPA is essentially a voluntary instrument and at times of deterioration in her condition NE lacks insight into her condition and its impact on her functioning. For this reason, I am not satisfied that an EPA (or EPG) could operate sufficiently protectively to meet NE's needs.
Given that history and the possibility that legal action may be necessary on NE's behalf[19] an EPA could not provide a less restrictive alternative to the making of an administration order. I am satisfied that NE is in need of an administrator of her estate.
[19] Order 70 SCR requires a person under disability to act either by next friend or guardian ad litem an EPA would not meet this requirement and an administration order with the necessary function or a plenary order is required.
I am also satisfied that NE remains a person for whom a guardian may be appointed. I am satisfied that all of the findings in s 43 of the GA Act apply to NE and I find that she is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of her person and is in need of oversight care or control in the interests of her own health and safety or for the protection of others.

Need for a guardian and suitable appointments

The Public Advocate's guardian argued that while NE had improved in her mental health there remained a need for a guardian to be appointed.
There was agreement and support from all the parties, including from NE, regarding the need for orders and for the reappointment of R and the Public Advocate as the limited guardians of NE with the existing functions which each exercised.
For the following reasons I am satisfied and I find that NE remains in need of a guardian.
All the parties, other than NE, identified the need for accommodation decision-making for her. The issue is becoming more acute given that her parents are aging and may need to change their accommodation to meet their own needs. As NE opposes any move and strongly expresses this view, this function should be exercised by an independent guardian to preserve the family relationships.
Although NE is now compliant with her medications and accepting of mental health services, she is vulnerable to relapse of her illness with the risk of further manic episodes which potentially could impact on her behaviours. There is a need for legal authority so that a guardian has the requisite standing should NE in the future be either an applicant for or respondent to an application for a restraining order. Having regard to the history and the events which first prompted mental health teams to bring the applications to the Tribunal both in relation to the accommodation and applications for restraining orders by family members it is appropriate that an independent guardian is appointed who can exercise these functions without conflict or potential conflict.[20] Once accommodation issues are resolved appropriately for NE a more limited order may be sufficient to meet her needs.
[20] GA Act, s 44(1)(b) provides that the Tribunal may not appoint a guardian who has a conflict or who may have a conflict with the represented person.
The medical opinion which is not challenged is that NE lacks capacity to make judgments about her treatment and services. I am satisfied and I find that and there is a need for the formal appointment of a guardian to act in these spheres of decision-making for NE. The appointment of a guardian provides certainty as to who exercises these authorities.

NE is willing to accept the services from the mental health team. In addition, R has identified and attempted to engage services through her NDIS plan for NE to support her capacity building. Unfortunately, NE will not accept the services at her home because she says there is a risk of interactions with her mother. She is willing to meet support workers only outside the home which limits the role they can play to support her.[21] Into the future C may no longer be able to play the support role to NE as he has in the past. R indicated that this role needs to be played by someone and it was her hope to develop the services around NE to meet this need. A guardian is needed to oversee these matters and to advocate for and manage NE's access to services and her NDIS plan.
[21] ts 60, 11 January 2023.
Despite her own heavy personal commitments (which NE acknowledged) R was willing to be reappointed and I find her suitable for appointment as NE's limited guardian to make treatment and services decisions.
NE supports R's appointment as does the delegated guardian of the Public Advocate and the Public Trustee's solicitor. I am satisfied R is able to perform the functions of consenting to treatment and services on NE's behalf.[22]
[22] GA Act, s 44(2)(d).
As the compatibility with any administrator is a factor to be considered in determining suitability of any guardian[23] I accept R's assurance that although critical of the Public Trustee in the past, she will be able to work with the Public Trustee. This may be necessary in the future in the discharge of her functions as guardian in respect of the services to which NE has access which includes NDIS funding for exploration of future accommodation options for NE.
[23] GA Act, s 44(2)(b).
I am satisfied that the limited functions as outlined above meet the identified needs of NE for substitute decision-making such that a plenary guardianship order is not needed.
As NE has long standing mental health conditions and I am satisfied that she will need orders in the longer term so I will make the order for review in 5 years.

Wishes of NE

In the hearing NE acknowledged her need for assistance but said she felt it was time to 'call it quits' with the Public Trustee, because of what she said were the prohibitively expensive fees and charges and she did not think it was in her best interest to continue.[24] She said she found it difficult to contact the Public Trustee by telephone. She said she did not have a computer and could not read emails on her mobile phone (C said that emails sent to NE were also sent to him).[25] NE's statements that she cannot read emails contrasts with the statement of the trust manager who noted in reports to the Tribunal in 2021 and 2022 that NE communicates well by telephone and by email.
[24] ts 35, 11 January 2023.
[25] ts 36, 11 January 2023.
NE strongly asserted her wish to remain living at her parent's home in the granny flat and rejected suggestions she needed to move.

Section 85 review of the Administration order

The applicants argue that the Public Trustee should be removed as administrator and replaced by themselves, initially proposing their joint appointment but later R as the sole administrator.
The application for review is brought under s 85(1)(c) of the GA Act. Section 85 provides in part:
Circumstances in which review mandatory
(1)Without limiting section 84 or 86, the State Administrative Tribunal shall review a guardianship or administration order if a guardian or administrator —
(a)dies; or
(b)wishes to be discharged; or
(c)has been guilty of such neglect or misconduct or of such default as, in the opinion of the Tribunal, renders him unfit to continue as guardian or administrator; or
(d)appears to the Tribunal to be incapable by reason of mental or physical incapacity of carrying out his duties; or
(e)is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or
(f)being a corporate trustee, has ceased to carry on business, has begun to be wound up, or is under official management or subject to receivership. (2) A review under subsection (1) shall be made on the application of any person.
(3)A review under subsection (1) shall be carried out as soon as is practicable after the application for review is made[.]
L indicated that the issue taken with performance of the Public Trustee was in relation to the Public Trustees lack of communication with them.[26]
[26] ts 29, 1 September 2022.
Three issues are raised in the s 85 application, firstly what was said to be the repeated failure of the Public Trustee to comply with his obligations under s 47 of the Public Trustees Act 1941 (PT Act) to provide L and R as agents of NE, information and documents relevant to Family Court proceedings and a copy of the orders made by the Family Court. I will call this the agency issue.
The second matter was the issue of a letter of demand to the former partner of NE.
Thirdly, it is alleged there was a failure of the Public Trustee to comply with the obligations set out in s 70 of the GA Act which requires the Public Trustee to act in the best interests of NE in the failure to consult with her or members of her family before agreeing to consent orders in the Family Court.[27]
[27] GA Act, s 70(2)(e). Administrator acts in the best interests of the represented person if he acts as far as possible in consultation
In respect of the agency issue, L said that the October 2021 orders of the Tribunal had expressly authorised disclosures by the Public Trustee to R and to herself.
L said that despite it being the applicants who had alerted the Public Advocate and the Public Trustee to the issue and their repeated requests, the Public Trustee had failed to inform them of the progress of a divorce application and of any financial settlement made for NE.[28] The Public Trustee had refused to supply copies of the consent orders of the financial settlement that was reached.[29]
[28] ts 29, 1 September 2022.
[29] ts 14, 1 September 2022.
L argued that the lack of this information meant she had no capacity to judge whether the Public Trustee was acting in NE's best interests.[30] Further, without information about the financial settlement and knowledge of NE's financial affairs, the applicants were limited in their ability to explore alternative accommodation arrangements for NE.[31]
[30] ts 30, 1 September 2022.
[31] ts 17, 1 September 2022. It was noted, in the hearing that the Public Advocate in fact exercised functions in relation to accommodation decision-making for NE rather than R or the applicants.
L also argued that the applicants should be given a copy of the court orders so that they could be explained to NE.
L acknowledged that the applicants had learned of the substance of the property settlement through their father, C, who had access to oversight of NE's superannuation account.[32] L said he had advised the applicants of a change in NE's superannuation balance and L could infer from this that the outcome of the property settlement had been a superannuation split.[33] L conceded that the applicants had received a financial statement from the Public Trustee and understood in the broad NE's estate.[34]
[32] ts 27, 1 September 2022.
[33] ts 26, 1 September 2022.
[34] ts 28, 1 September 2022.
Nevertheless, L asserted the applicants needed a copy of the Family Court orders as she wanted to understand the basis of the property settlement reached and whether a fair and just outcome had been achieved for NE given her mental health and her financial position.[35]
[35] ts 28, 1 September 2022.
L said that in the refusals to provide information there were references to s 47(3) and s 60 of the PT Act. Those provisions are set out below:
Records and accounts to be kept
(1)The Public Trustee shall keep, or cause to be kept, an index listing all estates in course of administration by him, and shall keep, or cause to be kept, an account of all his receipts, payments, and dealings in every such estate.
(2)Upon an application in writing by or with the authority of any person interested in any such estate, the Public Trustee shall —
(a)permit the applicant or his solicitor or other authorised agent to inspect and take copies of any entry in any register relating to the estate, and (so far as the interest of the applicant is or may be affected thereby) of any account, notice, or other document in the custody of the Public Trustee; and
(b)at the expense of the applicant, supply him or his solicitor or other authorised agent with a copy of any such entry, account, or document as aforesaid, or of any extract therefrom; and
(c)give to such applicant or his solicitor or other authorised agent such information respecting the estate and the trust property as is reasonably requested in the application and is within the power of the Public Trustee.
(3)Subject as aforesaid, the Public Trustee, his officers and agents, shall observe strict secrecy in respect of every trust or estate in course of administration by him.
Custody of documents
All documents held by the Public Trustee shall be kept in safe custody, in such manner as he directs, and may be produced or parted with by his authority as and when he thinks proper in the conduct of the business of his office.
L said having considered the terms of s 47 of the PT Act she had prepared an instrument of appointment[36] which authorised L and R to act as agents of NE dealing with matters on NE's behalf with the Public Trustee (agency authority). L said the agency authority had been provided to the Public Trustee, but the Public Trustee had refused to acknowledge them as agents of NE and the terms of s 47 of the PT Act, which in her submission obliged the Public Trustee to disclose the information sought by them.
[36] L is a legal practitioner.
A copy of the agency authority was submitted with the documents filed by the applicants:
Public Trustee Act 1941
Appointment of authorised agent
Application for inspection and information Section 47(2)
1.I, [NE] [of address] hereby appoint as my authorised agents
a.Ms R, of [address deleted] Western Australia: and
b.Ms L, of [address deleted] Australian Capital Territory
2.Pursuant to s 47(2) of the Public Trustee Act 1941, I hereby make written application to the Public Trustee for one or both of my authorised agents to inspect and take copies of:
a.any entry in the register required to be kept by the Public Trustee under s 47(1) relating to the administration of my estate and the account of all receipts, payments and dealings of the Public Trustee in my estate: and
b.all documents in the custody of the Public Trustee concerning the financial orders made by the Family Court of Western Australia relating to the division of property and financial assets following my divorce from [RJ ] of [address] Western Australia,
The document was signed by NE and by a witness on 16 May 2022.
In the first review hearing the effect of s 77 of the GA Act on NE's capacity to execute an agency agreement was raised with the applicants.[37]
[37] ts 15, 1 September 2022.
Section 77 of the GA Act provides in part:
77.Represented person incapable of dealing with estate
(1)So long as there is in force a declaration by the State Administrative Tribunal under section 64(1) that a person is in need of an administrator of his estate, that person is —
(a)incapable of entering into any contract or making any disposition in respect of his estate or any part thereof or interest therein; or
(b)subject to Part 9,[38] appointing or conferring any power on an agent or attorney in respect thereof,
except to the extent that the administrator, with the consent of the Tribunal, in writing authorises him to do so[.]
[38] Part 9 of the GA Act deals with the creation of and jurisdiction of the Tribunal to intervene in EPAs.
L said that she had not been advised that the basis for refusal by the Public Trustee was NE's lack of capacity to execute the agency agreement. She disputed that NE lacked capacity to execute such an agreement and said if this advice had been given, she would have applied to the Tribunal to authorise NE to appoint the applicants as agents. In her further written submissions, L argues that s 77 of the GA Act does not apply, as the applicants are not seeking to have any dealing with or to deal with any disposition in respect of NE's estate but only in relation to the disclosure of information by the Public Trustee.
In a report to the Tribunal dated 25 August 2022 and in evidence in the hearings the solicitor for the Public Trustee said that the Public Trustee had acted as case guardian for NE in the Family Court proceeding. Family lawyers had been instructed on NE's behalf by the Public Trustee. She advised NE had been divorced on 9 February 2021 and prior to the lapsing of the statutory limitation period the Public Trustee had filed an application to the Family Court to formalise a previously negotiated property settlement between NE and her former husband made in 2009. There had been a hearing in October 2021 with final orders made by the Court in February 2022.
The solicitor submitted that it was the role of the Family Court to make the assessment of whether the terms of the property settlement reached were just and equitable. She agreed that as a case guardian had been appointed for NE, the Court was on a greater level of notice of the need to ensure the process was fair for NE.[39]
[39] ts 30, 1 September 2022.
The solicitor said that in the October 2021 hearing in the Tribunal there had been discussion that the Public Trustee could keep L and R informed of the progress of the Family Court proceedings if authorised to do so. In the transcript of that hearing the solicitor refers to s 47 of PT Act.[40] The orders made authorised that communication. Following this, the solicitor said she had sent various emails updating the applicants on the progress of the property settlement matter up until the orders were made by the Family Court. She said she had advised the applicants that the final orders were largely the formalisation of the informal agreement that had previously been reached between NE and her former spouse.[41]
[40] ts 14, 11 October 2021.
[41] Letter dated 25 August 2022, Hearing Book document 112, ts 30, 1 September 2023.
The solicitor noted that one of reasons given by the applicants for a copy of the Family Court orders to be provided to them was so that the applicants could explain the effect of the orders to NE. The solicitor said she had raised her concerns with the Public Trustee regarding NE's understanding of the complexity of the orders and the Public Trustee had authorised the trust manager to go through those orders with NE and to explain the effect of them to her. This had occurred on 25 February 2022.
The solicitor said that she had explained the confidentiality provisions by which the Public Trustee was bound in her correspondence to the applicants and had advised them that they were not entitled to copies of the court orders. She said following this she had received the signed agency authority wherein NE had appointed L and R as her agents.
The solicitor said it was explained to the applicants that NE could not appoint agents but in response the Public Trustee had been advised that his legal officers did not understand the relevant law.[42]
[42] Referring to an email sent by L to the Public Trustee dated 23 August 2022 where it is asserted that there was a lack of understanding on the part of the legal officers 'of basic legal principles such as the law of agency'.
The solicitor said that it was the position of the Public Trustee that L and R would be informed of what was going on, but the Public Trustee's officers would comply with the PT Act and their other confidentiality obligations.[43] Copies of the Family Court orders would not be provided.
[43] ts 22, 1 September 2022.
Later requests from L for copies of documents from the legal file including the costs agreement and invoices from the lawyer who had acted were also rejected.
The solicitor said that NE's financial statement had been provided to the applicants on 5 July 2022. This followed a complaint made to the Attorney-General in which the applicants had advised they needed information about NE's financial position to make appropriate decisions about services for her. The solicitor said this issue had not previously been raised with the Public Trustee. The statement provided to the applicants reflected the transfer to NE following the property settlement. The solicitor submitted that the applicants had the financial information they needed to make future decisions about NE's services.[44]

Has the Public Trustee been guilty of neglect, misconduct or default as the administrator of NE's estate

Agency issue

[44] ts 22, 1 September 2022.

In respect of the agency issue, the October 2021 orders of the Tribunal authorised but did not direct the Public Trustee to communicate with L and R.[45]
[45] Directions may be given to an administrator in respect of the time, manner or circumstances of the performance of a function of the administrator pursuant to GA Act, s 71(4).
It is clear from all the evidence, that communication did take place with the applicants about NE's affairs and this is conceded by L. The applicants also acknowledge they are now generally aware of the financial circumstances of NE following the property settlement through the statement provided.[46] The timing and the nature of the information provided through that communication is contested. The refusal of the Public Trustee to provide a copy of the final orders (and the documentation requested from the legal file) appears to be the remaining issue. The applicants say they are entitled to these documents pursuant to their appointment as agents of NE.
[46] ts 23, 1 September 2022.
The position of the Public Trustee is that the applicants are not entitled to the documents sought as the applicants are not within the category of persons to whom information can be given pursuant to s 47(3) of the PT Act. The Public Trustee does not accept the agency authority which the applicants say places them in the position of NE to demand the information and documents sought.
The GA Act too contains confidentiality and other provisions which strictly control the release and use of information regarding the represented person. That those provisions contain criminal sanction for breach emphasises the seriousness of these matters.[47]
[47] See CD [2020] WASAT 41 [34] - [37] considered s 113 and s 112 of the GA Act and related provisions and the underlying policy.
Section 113 of the GA Act provides:
113.Confidentiality
(1)No person performing any function under this Act shall, whether directly or indirectly, divulge any personal information obtained in the course of duty relating to a represented person or person in respect of whom an application is made, other than information that he is authorised or required to divulge —
(a)in the course of duty;
(b)by this Act or any other law;
(c)with the consent of the person, if he is capable of giving consent; or
(d)in other prescribed circumstances.
Penalty: $5 000.
(2)Subsection (1) does not apply to statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.
(3)The provisions of this section are in addition to, and do not derogate from, the provisions of the State Administrative Tribunal Act 2004 relating to the disclosure of information and documents.
The applicants say that s 113 of the GA Act does not apply to information which the Public Trustee is required or authorised to disclose by the GA Act or any other law. They argue that the Public Trustee is required by s 47(2) of the PT Act to disclose information about NE's estate when requested by her or by her authorised agents. They say that NE is capable and has given her consent to the disclosure.[48]
[48] Final written submissions filed 13 January 2023.

The Tribunal orders of October 2021 authorised communication with L and R by the Public Trustee, (which might otherwise have been in breach of s 113 of the GA Act). However, the solicitor for the Public Trustee submits that the applicants are not persons entitled under s 47 of the PT Act and that the authority granted by the Tribunal to communicate with L and R did not relieve the Public Trustee or his officers of their obligations to comply with the PT Act (or their other confidentiality obligations).[49]
[49] The Family Law Act 1975 Court Rules restrict the disclosure of information and legal practitioners also have confidentiality obligations.
L argues that NE was capable of executing the agency authority, in the sense that NE understood the legal relationship being created when she signed the authority when it was explained.[50] I accept this may or may not have been the case.[51]
[50] The capacity to execute an instrument 'Under the general law there is no single test for capacity to perform legally valid acts - rather, capacity is decided, in relation to each particular piece of business transacted, by reference to whether the person has sufficient mental ability 'to be capable of understanding the general nature of what he is doing by his participation', and concerning any legal instrument 'is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained': Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423 at 437–8 per Dixon CJ, Kitto and Taylor JJ cited in Szozda v Szozda [2010] NSWSC 804.
[51] The evidence of Dr C is that NE lacks capacity for legal matters but is capable of executing an EPA.
However, I accept the submission that by operation of s 77 of the GA Act, NE lacked legal capacity to give such an authority since a declaration had been made pursuant to s 64(1) of the GA Act and an administration order was in force in respect of her estate.
The reference in s 43 of the PT Act to an agent must refer to an agent appointed prior to a declaration being made pursuant to s 64(1) of the GA Act. The agency agreement must also be of a nature that survives an appointment of an administrator,[52] such as the appointment of a real estate agent for the sale of a house. An agency arrangement which relies on a person's on-going capacity to grant such authority, such as a banking authority does not survive a declaration of incapacity.[53]
[52] Agency Agreements such as those that a person with full legal capacity could not lawfully terminate.
[53] KS [2008] WASAT 29.
I find that following the declaration being made under s 64(1) of the GA Act, that s 77 of the GA Act prevented NE dealing with her estate by entering any contract or making any disposition or appointing or conferring any power on an agent without the authority of the administrator and the consent of the Tribunal.
The applicants argue that the words 'in respect thereof' in s 77(1)(b) of the GA Act limits the prohibition on the appointment of an agent by a represented person to matters relating to contracts[54] or dispositions from the estate of the represented person. They submit that s 77 of the GA Act is not relevant and has no application to the appointment of an agent to receive information under s 47 of the PT Act and therefore does not apply to the agency authority executed by NE.
[54] Bearing in mind that an agency agreement is a contract.
In support of the narrower reading of s 77(1)(b) of the GA Act, L cited Ford and Marshall v Marshall & Anor [2003] WASC 116, in which an objection was made to the admission of an affidavit sworn by a represented person. Barker J referred to s 77 of the GA Act and held, that 'nothing in this subsection says that the person cannot swear an affidavit, and nothing in subs (2), (3) or (4) of s 77 has that effect either' at [22].
In SM [2019] WASAT 22, a decision of the Tribunal was concerned with the powers of an appointed administrator to make a binding death benefit nomination on behalf of a represented person. It also addressed whether s 77(1)(a) of the GA Act prohibited a person the subject of an administration order from making a testamentary disposition and not whether the represented person could appoint an agent nor the scope of s 77 generally.[55]
[55] Following Full Board of the Guardianship and Administration Board, Re (2003) 27 WAR 475 that s 77(1) of the GA Act does not apply to the making of any will or testamentary instrument.
I consider that a plain reading of s 77(1)(b) of the GA Act is not limited in the way suggested. With respect, the better view is that the words 'in respect thereof' refer to the estate of the represented person having regard to the preceding words in s 77(1)(a) of the GA Act. The reference to any power being conferred on an agent and that the authorisation of the administrator and consent of the Tribunal is required, in my view supports this interpretation.
The submission that s 77(1)(b) of the GA Act should be read narrowly is also not, in my view, consistent with other provisions[56] of the GA Act as they relate to administration orders. Those provisions reinforce the authority of the plenary administrator to deal with[57] the estate[58] of the represented person during the currency of the administration order to the exclusion of others, including the represented person. Those provisions make subordinate the donee of any surviving EPA to the administrator.[59] I consider that this interpretation is consistent with the relevant authorities.[60]
[56] GA Act, s 71(2) provides that a plenary administrator may perform or refrain from performing in relation to the estate or any part of the estate, any function that the represented person could perform if of full legal capacity.
[57] With limited exclusions see GA Act, s 72(3)(a) and (b).
[58] The 'estate' of a represented person is a reference to 'the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs: SAL and JGL [2016] WASAT 63 at [22].
[59] GA Act, s 108(1a), the Tribunal shall revoke an EPA inconsistent with administration order made, s 108(2)(b) the EPA may be revoked by an administrator and s 108(2)(a) the attorney is accountable to the administrator.
[60] See for example JNRD and the Protected Estates Act (1992) 28 NSWLR 728 where the majority held that whilst an administration order is in force the subject person is to be conclusively presumed in law, incapable of performing any act which effects their estate or affairs following Gibbons v Wright (1954) 91 CLR 439440. Referring to persons about whom a declaration of incapacity had been made the High Court said, 'Such a person is held incompetent to dispose of his property, not because of a lack of understanding (indeed he remains incompetent even in a lucid interval), but because the control, custody and power of disposition of his property has passed to the Crown to the exclusion of himself'. Cited in Johnson v Staniforth [2002] WASCA 97,117 per RobertsSmith J. While Johnson and Staniforth was found to have been wrongly decided and the decision set aside. (See Full Board of the Guardianship Board) this was on other grounds.
The administration order covers the field, so to speak, to the extent of the authority of the administrator.[61] In this case, plenary authority is vested in the Public Trustee who therefore may perform or refrain from performing any function in relation to the estate or any part of the estate of the represented person that she herself could perform if of full legal capacity.[62] This authority includes the conduct of legal proceedings in the Family Court for a property settlement on NE's behalf.[63]
[61] GA Act, s 71.
[62] GA Act, s 71(2).
[63] Property Law Act 1969 (WA) defines 'property' to include a 'chose in action' and the Public Trustee was appointed case guardian pursuant to the Family Court Rules.
That the provisions of s 77 of the GA Act apply even where limited functions are vested in an administrator, reinforces, in my view, that s 77 of the GA Act is intended to provide certainty as to who has authority and control[64] in respect of the estate of a person found to be lacking capacity. This is achieved by the exclusion of the appointment of or assumption of authority in the financial or legal affairs of the represented person by persons other than the administrator except with the administrator's and the Tribunal's consent.
[64] See Powell J in JNRD and Protected Estates Act citing Vaughn Williams LJ Re Walker [1905] 1 Ch 160 at 171-172 control of an estate of a person lacking capacity 'it must necessarily be the case that such control must be exclusive, otherwise there would be a conflict of control - which the law could not allow' cited in Johnson-Staniforth per Roberts-Smith J 136.
The intended purpose of the applicants acting under the agency authority is to receive a copy of the Family Court orders and documents related to the legal advice received by the Public Trustee in that proceeding. L says she needs a copy of the orders to assess whether the orders made were just and equitable. In respect of this point, I accept the submission of the solicitor for the Public Trustee that it is role of the Family Court to make this determination.
This purpose I consider illustrates the difficulty with the proposition that such an agency authority can operate alongside a plenary administration order (or a limited administration order which provides authority to act as next friend or guardian ad litem of the represented person). L intends to make her own assessment of the appropriateness or otherwise of the Family Court orders made. The suggestion that there be a further assessment is impractical and unnecessary since NE is bound by the decision of the Public Trustee as the administrator of her estate in consenting to the final Family Court orders.[65]
[65] GA Act, s 69(3) and s 79(1).
I acknowledge the applicants were frustrated by what they say is their lack of visibility or oversight regarding the represented person's affairs and they are concerned on their sister's behalf. I accept the submissions of the Public Trustee's solicitor that as the Public Trustee did not accept that an agency agreement had been effectively made by NE that therefore he and his officers were required to observe 'strict secrecy' in respect of the estate of NE pursuant to s 47(3) the PT Act.
Of recent times there is general criticism of the confidentiality provisions both in the GA Act and the PT Act. There is also criticism of the role of administration orders and the extent of the authority of an administrator. There has been a move towards encouraging supported decision-making which is more in keeping with contemporary understanding of the needs of persons with impaired capacity.[66] However the Tribunal is concerned with the provisions of the existing and applicable law. Criticism of the Public Trustee which fails to appreciate these provisions, or which is directed at the individual officers in their interpretation or application of the provisions is in my view unwarranted.
[66] See for example Guardianship and Administration Act 2019 (Victoria).
Even if I am incorrect and the agency agreement allowed the Public Trustee to provide the documents sought by the applicants pursuant to s 43 of the PT Act, the contrary interpretation of those provisions by the Public Trustee could not, in my judgment amount to neglect misconduct or default of the administrator.

The letter of demand

The second issue raised in the application under s 85 is the allegation that the Public Trustee issued a letter of demand on PS, NE's former partner, for money owing to NE thereby causing her distress and putting her safety at risk. The applicants say that there was a failure to consult NE before the letter of demand was issued or to alert family members. They say that the actions of the Public Trustee are inconsistent with the Public Trustee's obligations pursuant to s 70(2)(e) and s 70(2)(g) to consult with NE and take account of her wishes and to maintain supportive relationships of the represented person, which it is understood refers to NE's relationship with PS.
L says that when PS received the letter of demand, he reportedly contacted NE in a threatening manner and L intervened to explain to him that the Public Trustee had issued the letter of demand and NE was unaware of it. NE described PS as aggressive and unpredictable and said that she was scared of him.[67]
[67] ts 7, 11 January 2023.
NE herself referred to the outstanding money and her historical attempts to deal with the issue:[68]
He borrowed 14 grand; paid back four. Then I got extremely angry with him because he wouldn't open the door. I kicked in windows, and I got sent to prison for that.
Which I understand it was necessary to do so. But it was out of frustration that he would not open the door and talk to me at least[.]
[68] ts 11, 11 January 2023.
NE's comments make clear that she wanted her funds recovered from PS. The report of the Public Trustee's trust manager of 7 October 2021 indicates that NE herself wrote to PS on 16 June 2020 (that is, after the appointment of the Public Trustee) seeking repayment and he subsequently paid $4,000. In the October 2021 hearing R said that NE's parents had attempted to initiate recovery of the debt from PS.[69]
[69] ts 8, 11 October 2021.
In the trust manager's report of 22 August 2022, it is reported that PS is selling a valuable property and will repay the balance of the debt once the property is sold.
In their written submissions the applicants refer to the risk that the collection of the debt from PS might be statute barred and that this prompted the letter of demand being sent by the Public Trustee.
It was clear from other evidence that contact between NE and PS was continuing despite NE stating the relationship was at an end and a history of volatility and reported violence between them. NE said that PS had contacted her the night before the hearing to discuss unrelated matters.[70] She said that PS repeatedly telephoned her and turned up at her house to blame her that the relationship had ended.[71]
[70] ts 6, 11 January 2023.
[71] ts 27, 11 January 2023.
R noted that NE struggled to maintain the separation from PS and would likely be in breach of any restraining order obtained (by either PS or by NE). R said that NE loved PS's dog and this drew her back to him.[72]
[72] ts 28, 11 January 2023.
The issue of the letter of demand in the context of the history of violence between NE and PS may have increased the risk to her of being the victim (or the perpetrator) of violence as the applicants contend. However, it appears from what was said by NE that it is not the only trigger for contact between them.
In respect of the allegation of the failure to communicate with NE (or her family) about the debt, both of the trust manager's reports referred to above note that NE is able to communicate clearly both by phone and email. The information provided in the reports about the debt in my view likely came from NE.

Failure to consult on the consent orders

The Public Trustee's solicitor says the consent orders were largely based on agreement that had been reached in 2009 between NE and her former spouse. She said that C was contacted by the solicitor and the family lawyer who confirmed details about the informal settlement. C agreed he had been contacted by the lawyers and had spoken to them about these matters but in his letter to the Tribunal submitted by the applicants said he had not been consulted. It should be noted here that the Public Trustee's officers and the family lawyers acting on instructions are bound by the limitations on disclosure of information about Family Law proceedings to a non-party.
The applicants say that the Public Trustee failed to act in NE's best interests due to a lack of consultation with her and with her family.
Section 70 of the GA Act provides that an administrator shall act according to his opinion of the best interests of the represented person. Section 70(2) sets out a list of factors guiding administrators as to the meaning of best interests in the performance of their functions.
Section 70(2)(e) provides that an administrator acts in the best interests of a represented person if he acts, as far as possible in consultation with the represented person, taking into account as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions.
These provisions emphasise the exercise of the judgment of the appointed administrator. Relevantly the provision also refers to the previous actions of the represented person as guidance to their wishes. This may be particularly relevant to the property settlement which formalised the agreement reached in 2009 and the debt recovery action taken which NE herself had initiated.
The legal principles relevant to the review of guardianship and administration orders were recently set out in RK [2022] WASAT 112 (RK).
In respect of a review pursuant to s 85 of the GA Act the Full Tribunal said in RK at [35]
…the Tribunal is required to review a guardianship or administration order in circumstances where the appointed guardian or administrator is unable to carry out that role, including if the guardian or administrator dies, wishes to be discharged, is rendered physically or mentally incapable of carrying out their duties, or is guilty of such neglect or misconduct or of such default as, in the opinion of the Tribunal, renders them unfit to continue as guardian or administrator. An application for a review in those circumstances may be made by any person. In so far as an application is brought on the basis of neglect or misconduct by the guardian or administrator, it is not the Tribunal's role to review the merits of the myriad of daily decisions which may be made by a guardian or administrator in the exercise of their decision-making authority. That reflects the fact that reasonable minds may differ about the merits of individual decisions. The obligation on the guardian or administrator is to act in what they consider to be the best interests of the represented person. Consequently, a review in those circumstances is confined to cases of such serious neglect, misconduct or default as to render the guardian or administrator unfit to continue.
The issues raised by the applicants relate, in my view, to the exercise of the decision-making authority and judgment by the administrator. While the consultation with NE is said to be deficient, there is conflict about this point and there was communication with members of her family within the limitations of the various restrictions operating. These matters do not support findings of neglect misconduct or default on the part of the Public Trustee as administrator.
Therefore, the application pursuant to s 85 of the GA Act is dismissed.

Section 84 review of the administration order

Having determined that NE remains a person for whom an administration order may be made, the only issue in contention was who should be appointed administrator of NE's estate
The applicants say that they could provide a much cheaper service and be more available to assist NE.
NE's estate has some complexities. C said that he and M may need to sell their home and this highlights the need to deal with the issue of NE's financial contribution to the renovation of their property.
C explained that the history of NE's contribution had been to create an accessible environment to accommodate NE's needs and the visits of one of her sons, M as he experiences significant physical disabilities and is a wheelchair user. C noted that NE had lived rent free in the property (for many years) paying board and lodging and sharing the other outgoings as a third with both he and M.

C acknowledged the need to resolve the issue of NE's interest in the property and said he was open to negotiations to provide some formal acknowledgement of NE's contribution to the current value of the home which he estimated was about $2 million. He suggested NE's contribution was about 10%. He said he had sought legal advice about the issue.[73]
[73] ts 50, 11 January 2023.
C was concerned about legal costs in creating that acknowledgment and questioned whether a constructive trust was the proper approach. However, he said he was willing to assist in the process; was obtaining a valuation of the property; and was communicating with the Public Trustee's solicitor about the issue.[74]
[74] ts 50, 11 January 2023.
C said that given the existing provision for NE in her parents wills that following her interest in the property being formalised that there would need to be adjustments to both his and M's wills. He indicated that currently L and R were named as trustees of the current provision made for NE of 50% and L and R each taking 25% each.
In respect of the day-to-day management of NE's finances C said he considered the reimbursement arrangements operated by the Public Trustee to be 'archaic.'[75] This related to advances he had made on behalf of NE for dental accounts, payment of road-side assistance and car repairs. The trust manager advised that with forward notice of a dental appointment (or other accounts) that the Public Trustee could pre-pay the dentist (or other supplier) and confirmed that the dentist's account had previously been paid in this way and that the RAC was also on their system and could therefore be paid directly.
[75] ts 37, 11 January 2023.
R expressed concern about the demand on C regarding the ongoing support he gave to NE in liaising with the Public Trustee, in paying items on his credit card and later being reimbursed. This concern arose from his age, as he was turning 87 years, and other demands on him. R said when C passed away or was unable to play this role, their mother would be unable to assist NE. R said her preference was to set up stable arrangements now to provide this support, preferably through support workers but if this could not be arranged the role would fall to her.
C said he was quite capable and happy to help and his function was to assist in this way and felt there had been a significant improvement (by the Public Trustee) in responding to emails in the last 12 months following the intervention of L.[76]
[76] ts 36, 11 January 2023.
The complexity and sensitivity of establishing NE's interest in her parents' property, in my judgment, supports the need for an administrator independent of the family to manage the negotiations with C and resolve the issue preferably without recourse to legal action.
The applicants while I accept are committed to NE's best interests as they see them, have potential conflicts as they will be ultimate beneficiaries of the deceased estate of their parents. The variation of C's will to adjust for the acknowledgement of NE's equitable interest in the property might also create a conflict of interest on the death of their parents which would need to be resolved by the appointment of an administrator to consider whether proper provision had been made for NE given her particular needs.
These types of conflicts, which are common, can often be managed by appointing a sibling to manage some aspects of the estate of a represented person and the Public Trustee to act as administrator in respect of any interest or possible claim on the deceased estate of the represented person's parent when the conflict between the represented person and the sibling administrator becomes acute.
In this case, there is already a question as to whether legal action will be necessary to secure NE's interest in her parent's property and negotiations to be undertaken prior to that decision being made. This requires an independent administrator of NE's estate while that matter remains unresolved.
In correspondence to the Tribunal from R, the relationship between L and her parents has in the past been described as fractured because of the events which lead up to the original orders being made. In the material submitted by the applicants to the Tribunal for the review the circumstances of NE's financial contribution to the renovation of her parent's property are described as 'unconscionable'. In her correspondence with the Public Trustee, L questions the skills and knowledge of the Public Trustees legal officers when they have interpreted the PT Act in a manner different to her own.
Negotiations with C and his legal representatives in an effort to secure NE's interests need to be conducted in a way which achieves the best interests of NE and do not impact further on family relationships.
I acknowledge that the reappointment of the Public Trustee is not consistent with NE's wishes as expressed in the hearing and is a more restrictive order than a family appointment. However I am satisfied that it is in the best interests of NE that the appointment of the Public Trustee be confirmed at this time, at least until NE's interest in her parent's property can be secured.
If this matter cannot be resolved through negotiation, C and M may be defendants in any legal action brought on NE's behalf and it is not appropriate to put family members in such a position to prosecute a claim on behalf of NE with the inevitable conflict which would arise.

Length and scope of orders

As noted, I am satisfied that NE will remain in need of a guardian in the longer term although the functions to be exercised may reduce as NE's circumstances change. I am also satisfied that NE will also need an administrator of her estate in the longer term. The administrator needs plenary authority because of the range of matters to be determined.
I will revoke the existing order and make a new order reappointing the Public Trustee. I consider that the Public Trustee as administrator should communicate with the Public Advocate and R to the extent necessary to allow them to discharge the relevant guardianship functions vested in them. Equally the guardians need to keep the Public Trustee informed of decisions made by them relevant to the administration of NE's estate.
When NE's interest in the property of her parents is resolved, her estate will be simplified and the conflictual views regarding this matter will no longer impact on the management of her estate. At that time an application might be brought pursuant to s 87 of the GA Act for leave to apply for review of the orders citing a change in NE's circumstances.[77] If leave is granted, at that time a family member could again be considered for appointment.

Orders

[77] Leave may be granted to any person seeking leave if the Tribunal is satisfied of a change of circumstances or any other reason a review should be held.

For these reasons I make the following orders:
The Tribunal declares that the represented person, NE is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(f)in need of a guardian.
The Tribunal orders:
Administration
The administration order dated 11 October 2021 is revoked and substituted with an order in the following terms:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia 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).
2.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
3.The Public Trustee is authorised to provide such information regarding the estate of the represented person to her appointed guardians as he considers necessary to enable the guardians to perform their functions. For the avoidance of doubt the disclosure of information regarding the represented person's estate to the guardians is at the discretion of the Public Trustee.
4.The administration order is to be reviewed by 3 April 2028.
Guardianship
The guardianship order dated 11 October 2021 is confirmed as follows:
5.[R] of [address deleted], Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); and
(b)to determine the services to which the represented person should have access.
6.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(d)as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person; and
(e)to seek legal advice and representation on behalf of the represented person, and to advocate in relation to any police investigation, criminal charges or related proceedings.
7.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
8.The guardianship order is to be reviewed by 3 April 2028.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
12 APRIL 2023