NM - [2020] WASAT 134

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   NM [2020] WASAT 134
MEMBER:   MS F CHILD, MEMBER
HEARD:   26 MAY 2020, 17 JULY 2020 AND FURTHER SUBMISSIONS 27 AUGUST 2020
DELIVERED          :   2 SEPTEMBER 2020
PUBLISHED           :   30 OCTOBER 2020
FILE NO/S:   GAA 500 of 2020
NM
Represented Person

Catchwords:

Guardianship and administration - Application for review of orders appointing Public Trustee administrator - Represented person with acquired brain injury - Brother of represented person proposed for appointment as administrator but reported to owe debt to estate - Role of Public Trustee to examine accounts submitted by private administrator and to determine any loss to estate pursuant to s 80(3) of the Guardianship and Administration Act 1990 (WA) - Suitability for appointment as administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 64(1), s 68, s 68(1), s 68(3), s 76, s 77, s 80, s 80(3), s 80(6)(a), s 86
Guardianship and Administration Regulations 2005 (WA)

Category: B

Representation:

Counsel:

Applicant	:	Mr T Offer
Represented Person	:	N/A

Solicitors:

Applicant	:	Vertannes Georgiou
Represented Person	:	N/A

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

Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These are the reasons for the decision made on an application for review of an administration order appointing the Public Trustee as limited administrator of the estate of NM (the represented person) made under the Guardianship and Administration Act 1990 (WA) (the GA Act)
The review was conducted in hearings held on 26 May 2020 and 17 July 2020 at which time the review was adjourned to enable BM, the applicant and the brother of the represented person to file submissions in support of his appointment as administrator. Following the filing of material from BM and by the Public Trustee the Tribunal determined the review on the papers.
The decision made on 2 September 2020 revoked the appointment of the Public Trustee as limited administrator of the estate of the represented person and appointed CL, a cousin of the represented person as the limited administrator of the represented person's estate with review of that order by 2 September 2022.

Background and history of orders

The represented person is a 44yearold man who experiences cognitive impairment as a consequence of an acquired brain injury following complications from injuries he sustained in a motor vehicle accident as a teenager.
An administration order was first made in Western Australia for the represented person in 2016 on the application of his brother, BM who was then appointed as the limited administrator of the estate by the Tribunal.
It is understood that the represented person was first subject to an administration order made by the Guardianship Board of Tasmania (Tasmanian Board) which appointed the represented person's father as the administrator of his estate. BM was later appointed by the Tasmanian Board on 26 July 2013 as the administrator of the represented person's estate.
The father of the represented person (and of BM) passed away in September 2013 after which the remaining family of the represented person, BM and their mother LM moved permanently to live in Western Australia. Following this BM, made the application to the Tribunal for his appointment as the administrator of the estate of the represented person.
BM was appointed by order dated 14 October 2016 as limited administrator of the represented person's estate with all the powers and duties of a plenary administrator save for the collection of the represented person's Centrelink income. The administration order was made reviewable by 14 October 2022.
In July 2019 the Public Trustee's Private Administrators' Support team (PAS team) brought an application for review of the administration order stating that the Public Trustee had lost confidence in BM as the administrator of the represented person's estate and asked the Tribunal to review his suitability for appointment.
In the hearing of that application on 17 September 2019, the representative of the PAS team reported on the accounts filed by BM as the administrator of the estate pursuant to s 80 of the GA Act. The representative advised that Account No 1 (for the first 12 months of the order) had been filed by the administrator and examined. Account No 2 for the period 1 October 2017 to 30 September 2018 was due in October 2018 but had been filed late on 12 April 2019 and was not in the required form and information about the estate had been omitted. The PAS team had sought information from BM but this had not been provided.
By the time of the review hearing (in September 2019) the representative of the PAS team advised that Account No 2 still had not been filed in the required format and information about the represented person's main asset (being his superannuation account) for the period of Account No 2 had not been provided by BM.
Correspondence and file notes provided to the Tribunal both from the PAS team and BM indicate that there was considerable communication in an exchange of emails between the PAS team and BM over the period.
In the hearing the representative of the PAS team said that Account No 1 had shown drawdowns from the represented person's superannuation account but as the relevant statements had not been provided for the reporting period of Account No 2, the PAS team had been unable to confirm whether there had been further transactions on the superannuation account.
The PAS team representative indicated that Account No 1 had also shown that BM owed $600 to the represented person's estate. The PAS team representative reported that BM was requested to repay those funds to the estate and had been advised of the need to seek authority from the Tribunal to make any such advance from the estate but he had not done so.
In Account No 2 the amount reported to be owed by BM to the represented person's estate was in the order of $3,400. In the hearing BM said he was uncertain of the total he now owed the represented person but it was between three and four thousand dollars (ts 9, 17 September 2019).
BM acknowledged that the accounts required to be filed were late and that his reporting had not been complete for a number of reasons. He explained a significant change in his personal, employment and financial circumstances which caused him severe financial stress and had limited his ability to comply with accountability requirements. In correspondence to the PAS team he had requested less onerous reporting requirements.
Following hearing from the parties at the review hearing, the appointment of BM as administrator was revoked. In brief oral reasons given at the conclusion of the hearing, the Tribunal found that BM was not suitable for appointment as administrator because of his failure to meet the reporting obligations required of an administrator, his borrowing from the estate after he had been advised by the PAS team that this was not permitted and his self-reported financial stress which caused him to borrow from the estate to service his mortgage.
The Public Trustee was appointed the limited administrator of the represented person's estate on 17 September 2019 on the same terms as the previous limited order with review of the order in 2024. This is the order now under review.

Review

BM filed documents with the Tribunal in January and February 2020 including an application for interim orders in which it was alleged the Public Trustee 'likely to act against [the represented person's] wishes and perform a lumpsum migration of his estate [earlier identified as superannuation] into their own system, triggering substantial fees from his existing provider[.]' and the alteration of the will of LM 'in order to remove [NM] from her estate; to ensure transfer of her property to [NM] occurs through parties other than the Public Trustee'. By an order dated 7 February 2020 the case management member ordered the interim application be treated as an application pursuant to s 86 of the GA Act for review of the administration order. Leave was granted to BM to bring the application for review.
The review was conducted on 26 May 2020. The hearing was adjourned for investigation by the Public Advocate as to the wishes of the represented person and whether the current order was operating in his best interests or whether any amendments should be made to the order. The identification of possible alternatives to the appointment of the Public Trustee as administrator of the represented person's estate was invited.
The hearing was reconvened on 17 July 2020 at which time BM was legally represented and submissions were made on his behalf. The following orders were made on 17 July 2020:
The hearing of the review of the administration order is adjourned for 21 days for the filing of material by the proposed administrator, after which time the review will be determined on the papers or at the discretion of the Tribunal relisted for hearing.
If the matter is to be relisted for hearing, notices will be sent to the parties.
The proposed administrator [BM] is to file the following:
1.Written clarification from the Private Administrator's Support Team of the Public Trustee of the balance of any monies owed by him to the estate of the represented person either as the balance of the undocumented loan or unauthorised remuneration[.]
2.Evidence of repayment of any monies owed to the estate or a proposed repayment plan for repayment of monies owed to the estate[.]
3.A written undertaking that he will attend training provided by the Public Trustee and the Public Advocate for private administrators as soon as it is practical to do so[.]
4. A draft of proposed orders which identify:
(a)the names and addresses of the joint administrators proposed for appointment;
(b)the assets to be included in the administration order;
(c)the bank account number of an account opened by the represented person which will form part of the estate to be administered by the administrators and into which any payments or redemption from the represented person's superannuation accounts will be paid; and
(d)any proposed functions to be included in the order.
The date for compliance with these orders was extended at the request of BM to 27 August 2020 by order dated 10 August 2020.
The Tribunal determined the review and issued orders on 2 September 2020 appointing CL as the limited administrator of the represented person's estate with review of that order by 2 September 2022.
These are the reasons for that decision.

Legislation

Before an administration order may be made for the represented person, either originally or on review, the Tribunal must be satisfied pursuant to s 64 of the GA Act that he is unable by reason of a mental disability of making reasonable judgments about any or all of his estate and he is in need of an administrator of his estate: s 64 (1) of the GA Act. A mental disability is defined in s 3 of the GA Act to include an acquired brain injury.
Section 64 of the GA Act is subject to principles set out in s 4 of the GA Act which provide that:
•the primary concern of the Tribunal shall be the best interests of any represented person;
•every person is presumed to be capable of looking after his own health and safety; of making reasonable judgments in matters relating to his person; of managing his own affairs; and of making reasonable judgments in respect of matters relating to his estate;
•orders may not be made where there is an alternative means of meeting a person's needs that is less restrictive of his freedom of decision and action;
•where orders are made they must be in terms that impose the least restrictions on the represented person's freedom of decision and action; and
•the Tribunal must seek to ascertain, as far as possible, the views and wishes of the person concerned.
If an administration order is to be made the Tribunal must determine who is suitable for appointment. In determining suitability the Tribunal considers s 68 of the GA Act which provides that the Tribunal must be satisfied that the proposed appointee will act in the best interests of the represented person and is otherwise suitable to act. Suitability includes considerations of compatibility with the proposed represented person, the wishes of the represented person and whether the proposed appointee will be able to perform the functions vested in the administrator: s 68(1) and s 68(3) of the GA Act.
Pursuant to s 80 of the GA Act an appointed administrator shall submit accounts to the Public Trustee as required unless exempt from doing so by the Public Trustee. The Guardianship and Administration Regulations 2005 (WA) set out the time for the filing of accounts.
When an administrator is first appointed written information is provided to the administrator by the Public Trustee about the administrators' obligations.
Section 80(3) of the GA Act provides for the role of the Public Trustee on the examination of the accounts submitted by an administrator: the Public Trustee may allow or disallow any amount paid, determine if any amount or asset has been omitted or if any loss to an estate under examination has occurred.
The function exercised by the Public Trustee pursuant to s 80 of the GA Act supports the objects of the GA Act identified by His Honour, EM Heenan J, in Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43]-[44] when considering other provisions of the GA Act
… From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill considered personal decisions or action, or by unscrupulous or ill advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.
… These ends can be achieved, when it comes to dealings with the property and financial affairs of the person in need of assistance, by ensuring that any financial, property or commercial transactions which would, or might, jeopardise the financial security or interests of the disabled person, are only effective when performed by a properly appointed administrator and with the Board's consent. The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. In the main, these will be accomplished by conserving the resources and property of the person under administration for use to his or her own advantage or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration.
Where the Public Trustee disallows an amount paid or determines that an asset has been omitted or a loss has occurred to an estate of the represented person the Public Trustee may issue a certificate of loss or diminution for which an administrator is liable. Such an amount may be recovered by the Public Trustee from the administrator as a debt due to the estate of the represented person.
A person aggrieved by a decision of the Public Trustee pursuant to s 80(3) of the GA Act may seek review of that decision by the Tribunal.

What the Tribunal must decide on review of the orders

On review of the orders the Tribunal must determine whether the represented person remains a person for whom orders may be made, whether he needs an administrator of his estate and if so who that should be. The Tribunal must also determine the scope and length of the order to be made.

Does the represented person remain a person for whom orders can be made?

For the purposes of the review the represented person obtained, at his own expense, a report from a neuropsychologist Dr JG. The represented person explained he had drawn down funds from his superannuation to pay for the assessment and potentially to pay the legal fees associated with the review proceeding before the Tribunal (ts 13, 26 May 2020).
In the July hearing BM was represented and counsel for BM advised he was instructed by BM to also provide advocacy in the best interests of the represented person.
For the purposes of her assessment Dr JG had reviewed assessments of the represented person's functioning by a clinical neuropsychologist Dr S in 2002 and a medical report by Dr R in 2013 and an occupational therapist assessment from 2014 and other medical records.
Dr S, a consultant neuropsychologist in an assessment for the Tasmanian Board dated 12 June 2002 reports that the represented person has:
•history consistent with a frontal lobe syndrome arising from fat embolism syndrome;
•pattern of attentional deficits are consistent with damage to the basal frontal lobe regions;
•deficits in learning and recall of information deficits consistent with organic brain damage;
•limited awareness of deficits;
•executive functions impairment;
•he presents with diverse and severe range of disturbances to emotional functioning and personality. It is these non-cognitive deficits of frontal lobe syndrome that produces the greatest impact on an individual's functioning; and
•the deficits he presents appear unchanged since his previous assessment in 1998 these deficits must be considered permanent and stable in nature.
A medical report from Dr R 19 July 2013 reports:
•acquired brain injury, motor vehicle accident 6 January 1995;
•static condition;
•can get confused occasionally impulsive cannot always understand complex instructions;
•cannot always make good decisions not able to plan complex tasks;
•limited capacity sometimes poor judgment;
•limited capacity to understand financial affairs;
•not able to comprehend complex transactions; and
•currently not managing significant amounts of money, manages low level amounts without supervision.
In her report dated 23 April 2020 having conducted a number of cognitive assessments. Dr JG reports:
Overall, on current neuropsychology assessment [the represented person's] current cognitive profile was characterised by variability. Several cognitive domains tested out within normal limits, with fundamentally intact orientation, visual perception, immediate attention span, auditory/verbal information processing speed. However, he demonstrated inefficiencies or impairment within other cognitive domains, as summarised below.
His executive functions were variable. While his inhibition, (verbal) dual-tasking, and (verbal) abstract reasoning skills were intact, his ability to plan and organise, generate and apply strategy, and his working memory were mild to moderately impaired. His capacity to learn and remember was largely intact, however there was some inefficiencies secondary to executive dysfunction. His visuo-motor processing speed was moderately impaired. His selective and sustained attention (tapping into higher-order complex attention) were significantly impaired. There were also some observed mild expressive language difficulties (e.g., tangential and verbose speech), which are considered to be likely secondary to executive dysfunction/frontal brain impairment. His awareness and insight into his cognitive difficulties also appeared to be reduced, however it is noted that [the represented person] sustained his ABI and associated cognitive impairments approximately 25 years ago (i.e., has likely adjusted to this as his 'normal') and he is generally not placed in situations that require high level thinking abilities (i.e., does not work/lives with his mother who has historically completed the cooking and other domestic tasks/has had a financial administrator since his early 20s).
Overall, [the represented person's] current cognitive profile together with corroborative evidence that suggests that he is fundamentally capable of independently managing all activities of daily living are indicative of a DSM-5 diagnosis of Mild Neurocognitive Disorder secondary to his history of traumatic brain injury. Corroborative and recent medical documentation indicate that there has been no concern about possible, significant change in his cognition over time. Moreover, his current cognitive profile was generally consistent with the findings from 2002.
In regards to your referral question as to whether [the represented person] has capacity to independently manage his finances, this is somewhat complicated by the fact that he has never historically had the opportunity to manage the large sum of money that he received as compensation secondary to the injuries that he sustained from the MVA in 1995; he has always had an Administrator appointed to manage his finances. However, he does have a history of adequate selfmanagement of his everyday income (i.e., DSP) and expenditures. While I am not privy to the exact and true details of his financial estate (i.e., his income, savings, the amount in his investment portfolio and how this is managed), [the represented person's] responses on decision making capacity interview suggest that he has an adequate knowledge and understanding of his current finances (both everyday finances & invested finances). His responses to a range of everyday practical problem solving (including financial) questions were also considered well thought out and reasonable. Moreover, he repeatedly indicated his preference to re-engage a financial advisor (preferably his previous advisor, [BB]) to manage his investment portfolio on his behalf. He also demonstrated an awareness of some of the possible risks to selfmanaging his invested money and not having a superannuation fund. In addition to this, corroborative history from his family indicated minimal concern about his vulnerability to financial exploitation.
In the context of his current cognitive profile, especially his complex attention deficits & possible reduced awareness/insight, I have some concerns about his capacity to self-manage his entire financial estate completely independently (i.e., without any assistance). However, [the represented person] consistently and repeatedly stated that he intends to engage a financial advisor to administer his investment accounts. Should he engage a third party (e.g., a financial advisor) to assist him to manage his invested finances then this would circumvent the possible impact of his current cognitive weaknesses. He did appear capable to weighing up the pros and cons of making this type of appointment/decision. It is also noted that he has no history of clear little financial vulnerability or exploitation nor did he demonstrate any evidence of impulsive behaviour. Overall, in my opinion [the represented person] does have the capacity to independently manage his finances.
I do however acknowledge that this case is somewhat unique in that [the represented person] has not had the opportunity to demonstrate his capacity to independently manage all of his finances. Should the SAT member remain uncertain as to whether to fully revoke the current administration order, I would advocate for an administration order that allows [the represented person] the opportunity to increasingly gain independence of his financial estate, if at all possible. In addition, it is my opinion he has the capacity to execute and appoint an EPOA, should this information be useful.

The professional reports before the Tribunal all indicate that the represented person has an acquired brain injury with consequential cognitive impairment. Overall the reports indicate that the represented person's condition is a static one: Dr JG's report refers to the represented person's cognitive profile being 'generally consistent with findings in 2002'.
The evidence of LM is that many of the personality changes and difficulties observed and predicted in the report of Dr S did not eventuate and that the represented person has a positive personality and while he continues to live with her, he has developed an extensive social network and is very socially active. She described him as a 'steady character , not foolish not impulsive' (ts 22, 26 May 2020).
Dr JG's report is the most recent assessment. However, she confirms the static nature of the represented person's cognitive impairment, identifying executive dysfunction and sometimes significantly impaired higher order complex attention in his ability to plan, organise and apply strategy. In the Tribunal's view this qualifies her opinion that the represented person has capacity to manage his own affairs and Dr JG refers to the engagement of a 'third party to manage his invested fund [which] would circumvent the possible impact of cognitive weakness'.
The Tribunal considers that a financial advisor is not a substitute decisionmaker for the represented person and does not play a protective role inherent in the role of an administrator. An appointed administrator stands between the represented person and any employed financial advisor or other agent, to monitor and make judgments about the advice given, perhaps to seek alternative advice on behalf of the represented person and to monitor fees charged.
This has, the Tribunal finds, been the role of BM when appointed administrator (and perhaps before his formal appointment) together with LM and prior to the death the represented person's father. BM described in the interview conducted by Dr JG that the represented person had always 'been protected since his ABI [Acquired Brain Injury] and he was unsure of the represented person's ability to manage his invested finances'.
Despite the apparent continuing belief of the represented person that the Public Trustee had terminated the engagement of his financial advisor the Tribunal accepts the evidence of the Trust Manager given in the hearing that the Public Trustee did not terminate that engagement, sought to communicate with the financial advisor but received no response. BM advised that following the appointment of the Public Trustee the financial advisor had said that he felt like 'they could not act on the [represented person's] accounts' but it was unclear why this was the case (ts 39, 26 May 2020).
According to the evidence of LM, which the Tribunal accepts, the represented person has managed his pension income without difficulty and that income stream has been excluded from the administration orders made by the Tribunal since 2016.
On the professional evidence taken as a whole, the Tribunal finds that the presumption of capacity of the represented person to manage complex decision making in respect of his estate is displaced and finds that he is unable by reason of his acquired brain injury and consequential cognitive weakness (in particular, his impaired executive functioning) that he remains unable to make reasonable judgments about part of his estate being his superannuation funds and is therefore a person for whom a limited order may be made.

Is the represented person in need of an administrator of his estate?

The represented person does have an estate to be managed. He has superannuation funds and a pension income. All of the evidence before the Tribunal indicates that the represented person manages his personal finances including his Centrelink Disability Support pension. He has the daytoday support of his mother LM and of BM if needed.
The need for the formal appointment of an administrator arises from the need for oversight of the major asset of the represented person being his superannuation. This was the basis for the original application to the Tribunal in 2016 made by BM.
As noted in the report of Dr JG the represented person has never had complete control over his superannuation funds. He has always had someone providing supervision, support and guidance in respect of those funds: first from his father, then his brother, pursuant to the administration orders made first by the Tasmanian Board and then in 2016 by the Tribunal in Western Australia. The appointment of the Public Trustee to manage that part of the estate only occurred after the revocation of BM's appointment for the reasons given.
LM stated that the represented person was 'very sensible' and managed his own finances well but said there was a need for some protection for the represented person's estate due to his 'good nature' to ensure that people do not take advantage of him (ts 20, 17 September 2019).
Although Dr JG considers that the represented person is capable of executing an enduring power of attorney (EPA) as the represented person is currently subject to an administration order, s 77 of the GA Act precludes him from making such an appointment.
The Tribunal considers that the represented person's vulnerability and impaired executive functioning means that there needs to be independent oversight of the management of his estate through accountability and annual reporting obligations on any appointed private administrator which is not provided under an EPA.
The Tribunal finds that that the represented person is in need of an administrator of his estate in respect of his superannuation funds.

The wishes of the represented person

The represented person in the hearings and to the Public Advocate's investigator expressed his preference for greater control over the management of his estate and that if an appointment is to be made that his brother BM should be chosen as his administrator.
The Public Advocate's investigator reported that the represented person preferred complete autonomy but if an order was to be made a family member was preferred by the represented person who was accustomed to a greater level of consultation and involvement in the management of his affairs.
The represented person strongly opposed the reappointment of the Public Trustee and it was clear that there had never been a working relationship established between the represented person and the Public Trustee. The Public Advocate's investigator referred to this in the report submitted.
Although some of the issues of concern were addressed by the Trust Manager in the May hearing the represented person did not appear to accept the explanations given and maintained his position that the Public Trustee would draw down all of his superannuation at a significant financial penalty to the estate and that the Public Trustee had terminated the arrangement with his financial advisor. The Trust Manager confirmed that the funds had not been moved and that there was no intention on the part of the Public Trustee to move the funds (ts 6, 26 May 2020). The Public Advocate's investigator confirmed in the September hearing the evidence given by the Trust Manager in May 2020 and that the Public Trustee had not terminated the services of the financial advisor.
In the hearing a number of options for appointment of an administrator were put to the Tribunal. The represented person preferred his brother to be his appointed administrator over all other options even if BM was appointed jointly with another person. BM is the first preference, thereafter BM jointly with CL is preferred.

Who is suitable for appointment as administrator?

Although it may be the represented person's wish that BM be appointed as his administrator the Tribunal is not satisfied that BM can be appointed administrator as proposed at this time.
The correspondence from BM with the Public Trustee during the course of his appointment as administrator and his submissions in the review proceedings led the Tribunal to consider that BM had minimised his failure to meet accountability requirements while he was appointed as the administrator of the represented person's estate. This together with the undocumented informal loans made to himself and unauthorised remuneration charged to the estate raised concern about his understanding of the role and the obligations to act in the best interests of the represented person without conflict.
It was put by counsel for BM that coming from a lay perspective that BM lacked a full appreciation of the concerns of the Tribunal. It was submitted that any perceived lack of contrition was more of a personality trait than a lack of insight and BM had now acknowledged that his performance as administrator had not met an appropriate standard.
The Tribunal accepted the submissions of counsel for BM and having regard in particular to the strongly expressed wishes of the represented person and the support for BM's reappointment (on certain undertakings) by the Public Advocate's investigator, the Tribunal adjourned the review to enable BM to put further information before the Tribunal to enable the Tribunal to consider his appointment.
In the orders made on 17 July 2020 the Tribunal set out matters which BM was required to address so that his proposal for appointment could be considered by the Tribunal.
In compliance with those orders BM provided a written undertaking that if appointed he would attend the private administrator's training course and provide evidence that he had enrolled. He also provided draft orders setting out the scope of authority of the administrator as required.
However in respect of one and two of the orders of 17 July 2020 which relate to the monies owed by BM to the estate of the represented person, the Tribunal was unable to be satisfied that those matters were adequately resolved. BM provided what he described as 'demonstrated payments to address the figure of $5,375'.
Some discrepancy appears between the figure said to be owed by the PAS team and the amount BM believes he owes the estate. In a letter dated 26 August 2020 from the PAS team to BM further questions are raised about the calculation of claimed expenses and administrator's fees. It appears that the examination of Account No 3 (the final account sought from BM on revocation of his appointment) has not been concluded.
The amount of money owed to the estate by BM is unclear. In this circumstance it is not appropriate to reappoint BM as administrator.
If BM owes money to the estate of the represented person appointing him as the administrator would put him in the position of both being a debtor to the estate as well as the person responsible for the recovery of monies owed to the estate. This raises the real question of his ability to perform this function as the administrator of the estate. Perhaps it might have been possible to appoint BM if the debt was acknowledged and a reliable repayment plan was entered into by him. However where the amount of the debt is in dispute, as appears to be the case, it is not appropriate to appoint BM as administrator even jointly with another person since joint administrators must act concurrently in performance of their functions: s 75(a) of the GA Act.
As noted above, pursuant to s 80 of the GA Act it is the role of the Public Trustee to examine accounts submitted by private administrators as required by the Public Trustee and the role of the Public Trustee to determine if there has been a loss to an estate.
Following the conclusion of the examination of Account No 3, it may be the case that the Public Trustee may determine that there has been a loss to the represented person's estate.
If such a determination is made then BM has a right to seek review of that determination by the Tribunal pursuant s 80(6)(a) of the GA Act. If this occurs in this case the issue may take several more months to resolve.
As it is, the review of the administration order has been before the Tribunal since BM made his application in February 2020. It is not in the view of the Tribunal, in the best interests of the represented person that there be any further delay in bringing the review to a conclusion.
The represented person has made clear his opposition to the appointment of the Public Trustee as his administrator. The continuation of an order which he opposes and which appears to cause his distress needs to be resolved.
The Tribunal must in the best interests of the represented person make an administration order which will meet the needs of the represented person for oversight and protection of his superannuation and for a resumption of a more informal and consultative approach to the management of his estate to which he has become accustomed. This can be achieved by a less restrictive order with the appointment of a family member who can provide oversight but also has an established relationship with the represented person and who presumably will be able to work cooperatively with both LM and BM who provide daytoday support for the represented person
CL, the represented person's cousin, proposes himself for appointment. CL says he is in business and has experience as an administrator having been appointed as an administrator of the estate of another family member. CL, has in that role, submitted and has according to his evidence had accounts allowed by the Public Trustee.
Although not the first choice of the represented person the Tribunal considers that the appointment of CL is the least restrictive order possible, which meets the represented person's needs and is consistent with his wishes.

Scope and length of the order

In draft orders filed by BM, it is proposed that the administrator be authorised to engage a financial planner for the represented person. There is no need for this order since pursuant to s 76 of the GA Act an administrator may employ an agent, which would include a financial planner.
In relation to the scope of the order, as noted the represented person does not need an administrator to manage his daytoday financial affairs. The recommendation of Dr JG and the Public Advocate's investigator is that the represented person be given the opportunity to gain greater independence in respect of his estate. The order structured as a limited order with all the powers and duties of a plenary administrator gives the appointed administrator the widest possible scope to work with the represented person to develop his independence.
A two year order allows for a set of accounts to be submitted by the administrator and examined by the Public Trustee.
For these reasons the Tribunal makes the following orders:

Orders

The Tribunal declares that the represented person is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to part of his estate; and
(b)in need of an administrator of his estate.

The Tribunal orders:
The administration order dated 17 September 2019 is revoked and substituted with an order in the following terms:
1.[CL] of [address deleted] is appointed limited administrator with all the powers and duties of a plenary administrator of the estate of the represented person save for the collection of his Centrelink income.
2.The administration order is to be reviewed by 2 September 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
30 OCTOBER 2020