NG
[2025] WASAT 51
•5 JUNE 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: NG [2025] WASAT 51
MEMBER: DR E MARILLIER, SENIOR MEMBER
HEARD: 14 JANUARY 2025
DELIVERED : 13 FEBRUARY 2025
PUBLISHED : 5 JUNE 2025
FILE NO/S: GAA 5308 of 2024
NG
Represented Person
DG
Applicant
Catchwords:
Guardianship and administration - Whether enduring power of attorney could function as less restrictive alternative
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 40, s 64, s 68, s 68(3), s 106, s 108
Result:
Public Trustee appointed plenary administrator
Enduring power of attorney revoked
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| Applicant | : | Mr J Steedman |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | Steedman Stagg Lawyers |
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The oral reasons for the decision in the matter were delivered on 13 February 2025. An application was received from the applicant seeking costs from his brother. To give the costs decision context, the oral reasons for decision are now published below in anonymised form. The decision on costs which was determined on the papers follows thereafter.
This matter is an application under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking the appointment of an administrator for NG. The application is made by her son D and was initially an application under s 106.
NG is now 96 years old. She executed an enduring power of attorney (EPA) in 2013 appointing her late husband A and son D as her joint and several attorneys with the power in force notwithstanding her subsequent incapacity. Her other son N2 was appointed as the substitute attorney with his powers to commence on the death or incapacity of either A or D.
The application was made because NG has moved to residential care and a refundable accommodation deposit (RAD) needs to be paid. NG, D and N2 all acknowledge the need for her property to be sold to raise the RAD as she is currently paying very high fees for her accommodation and care. They even agree on which real estate agent should conduct the sale. The only impediment has been that N2 was unwilling to complete the necessary statutory declaration for the EPA to be registered at Landgate as it had not been registered within three months of execution.
The application under s 106 of the GA Act (which is to make a declaration of incapacity to bring an EPA into force where the donor has elected that method to bring the enduring power into force, which is not the case here) had been made in the hope that the Tribunal could make some order that would allow D to unilaterally register the EPA at Landgate. The Tribunal has no such power under s 106 and so at a directions hearing on 31 October 2024 I accepted an oral application under s 40 for the appointment of an administrator.
Given the existence of the EPA which should have constituted a less restrictive alternative to the making of an administration order I listed the matter to be heard on 14 January 2025 in the hope that progress would be made that may allow the administration application to be withdrawn. Sadly, no such progress occurred and by the time of the final hearing NG had an outstanding debt at the aged care facility of over $111,000. The amount owing at the time of the Directions hearing was $92,714.12, meaning over $18,000 in additional debt had accrued to NG in the interim.
The principles to be observed
Section 4 of the GA Act states that the Tribunal's primary concern is the best interests of NG.
There is a presumption that all persons over the age of 18 are capable of managing their own affairs and making reasonable judgments in respect of matters relating to the estate until the contrary is proved to the satisfaction of the Tribunal.
An administration order shall not be made if the needs of the person could be met by other means less restrictive of their freedom of decision and action.
In considering matters the Tribunal shall as far as possible seek to ascertain the views and wishes of the person concerned.
Section 64 of the GA Act allows me, where I am satisfied that a person is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all or any part of their estate, and that they are in need of an administrator of their estate, to appoint such a person.
Section 68 of the GA Act indicates that I may appoint as an administrator an individual of or over the age of 18 or a corporate trustee who has consented to act, and who in my opinion will act in the best interests of NG and is otherwise suitable to act as the administrator of the estate. In terms of suitability, I need to take into account the compatibility of the proposed appointee with NG, the wishes of NG and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
Capacity
The threshold test for the Tribunal is to determine whether or not the presumption of capacity is set aside by clear and cogent evidence. I had the benefit of reports from NG's long-term general practitioner (GP) Dr DN written on 25 October 2024 and of consultant geriatrician Dr PKL of 12 September 2024. Both Dr N and Dr L found that NG now suffers from dementia. They both found that this is a progressive condition and that although she is capable of simple day-to-day financial decisions Dr L found she was incapable of complex financial decisions (and Dr N was unsure).
In discussion with Dr L, NG was unaware of assets in the bank and whether or not she had superannuation. She was unaware of how much pension she had (if any) or who paid her bills, and she did not know if she had any shares. NG did not know who her EPA was and did not fully understand the concept but told Dr L that if she were to appoint anybody it would be her GP, Dr N, as she trusted him. When Dr L asked NG what she would do if she lost her credit card, she said she would notify the police, but she could not remember which bank she was with. Dr N noted that NG had a mini-mental state examination score of 21/30 on 22 August 2024. He commented 'clearly her house needs to be sold but she needs her sons to explain to her why that is needed for her future planning'.
Although N2 reported that he was able to have high level financial conversations with his mother I find the reports of the independent professionals compelling evidence of incapacity and I prefer their evidence as to her ability to independently recall important details of her estate at even a basic level without prompting. In addition, I have had reference to the aged care assessment team report of 2021 at which time A was reporting that NG already had significant short-term memory loss with repetition, confusion and inability to do tasks of greater complexity such as meal preparation.
I am satisfied that there is clear and cogent evidence which sets aside the presumption of capacity for NG in relation to her ability to manage her affairs. I am satisfied that given she can no longer independently remember the extent of her estate or even which bank she banks with, she is no longer able to make reasonable judgments in respect of matters relating to any part of her estate. NG is a person for whom I can appoint an administrator if I need to. I am satisfied that she has a formal diagnosis of dementia and that this constitutes a mental disability under the GA Act and that her lack of capacity is caused by that condition.
Need
NG sought to ensure that there were substitute decision-makers of her choice in place for the management of her estate when she made her EPA in 2013. This worked well until the sad passing of her husband. Unfortunately, the animosity and lack of trust between her sons has meant that with N2 as the substitute attorney, the EPA is no longer functioning in her best interests. This is because the lack of cooperation by N2 prevents the registration of that instrument with Landgate which is now necessary to progress the property sale as NG has lost capacity and can no longer sign the contracts herself. I note that NG remains vivacious, alert and engaged in both the Tribunal process and conversations regarding her financial circumstances.
D and N2 agree that the EPA cannot serve as a less restrictive alternative to the making of an administration order, as they cannot work together as attorneys.
I am satisfied that as a consequence NG is in need of an administrator. The enduring power of attorney will be revoked pursuant to s 108 of the GA Act.
Who should be appointed as administrator?
D proposes the appointment of a solicitor, Mr T as the administrator. Mr T is the executor of A's estate. D argues that this provides benefit to NG due to Mr T's knowledge of the estate of which NG is the sole beneficiary. Mr T would seek remuneration as the administrator utilising the hourly rates set out in the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024. D argues that Mr T would be able to delegate some work to junior members of his team to save expenses and that he would be in a position, if needed, to visit NG personally. He submits that the costs of appointing Mr T would be less than appointing the Public Trustee.
N2 proposes the appointment of the Public Trustee. He had initially proposed himself, however at the final hearing recognised that there was an insurmountable conflict of interest precluding his appointment. This is because within NG's share portfolio there are significant holdings in a company where N2 has been an office bearer and there are current dealings which may have very significant impacts for him personally. He acknowledged that he had a concern about who might make decisions regarding that shareholding if they were appointed as the substitute decision-maker for NG because of the possible implications for himself.
N2 submits that the Public Trustee's expertise in the ongoing management of the accounts of an individual person with a cognitive impairment is greater than that of Mr T. Mr T has acknowledged that he has never been an administrator under the GA Act. He has been an administrator of deceased estates and has acted as an enduring attorney. N2 further submits that the Public Trustee's costs will in fact be less than those of Mr T. In part this is because the Public Trustee will only have lawyers conducting business on behalf of NG which require legal expertise. The Public Trustee employs trust managers whose expertise lies in managing the ongoing financial needs of people with a cognitive impairment.
I heard from Mr T and acknowledge his willingness to be appointed and the fact that he made himself available while on leave and at short notice to assist the Tribunal. I note that the assessment for the Tribunal here is not between a private individual who is a friend or family member of NG working without remuneration and the independent public administrator. The choice is between a senior lawyer who does not have experience in the specific task required and the government institution which does have that experience, either appointment coming at some financial cost to NG.
I have considered the potential advantage to NG of the possibility for personal visits from Mr T which will not be as available to her if she is a client of the Public Trustee. I have also considered the submissions from both parties in relation to the relative costs to NG of either appointment. I note that the estimations in both cases can only be speculative.
On balance in considering the factors I must consider under s 68(3) of the GA Act the Public Trustee is the proposed appointee who I am most confident will be able to perform the functions proposed to be vested in the administrator. That is, to be able to undertake the plenary role which the current material indicates will involve (inter alia) both real estate transactions and some decisions regarding shareholdings where the represented person's family members have significant personal concerns. This is because I am satisfied that the Public Trustee will be able to make their determinations with no suggestion that there has been anything other than neutrality in their decision-making.
The Public Trustee will also provide an independent view of how the estate of A is distributed that N2 has argued will be beneficial to NG. I am satisfied that they will be able to consider only NG's best interests in the decisions they make.
I am casting no aspersions on Mr T with these remarks. I note that he is a senior legal practitioner and cognisant of his duties both under legislation and through his professional obligations. I have no doubt that he would also conduct himself with probity were I to appoint him. However it is the case that the Public Trustee has experience as an administrator under the GA Act, and he does not. NG will pay fees whichever candidate I appoint, and I do not accept the submission that Public Trustee are likely to be more expensive than a senior legal practitioner billing by time increments in doing the same tasks.
NG's wish had been for her sons to work together. She did not express a preference between the Public Trustee and Mr T.
I will therefore appoint the Public Trustee as the administrator for NG.
Scope
The medical evidence states that NG is now only able to manage simple day-to-day transactions and cannot even remember which bank she is with. I find because of that evidence that she requires an administrator with plenary authority. Given NG's fondness for both her sons, I will include a gifting authority of $1,000 per annum.
Term
NG has a progressive cognitive impairment and will therefore require an administrator for the rest of her life. As a consequence, I am going to make these orders reviewable within five years of today (the maximum available).
For these reasons on 13 February 2025, I made the following declarations and orders.
Orders
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [NG] 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.
Administration
2.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).
3.The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.
4.The enduring power of attorney dated 26 June 2013 by which the represented person appointed [AG], [DG] and [N2] to be their attorneys, is revoked.
5.The administration order is to be reviewed before 13 February 2030.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
5 JUNE 2025
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