OFFICE OF THE PUBLIC ADVOCATE and GC

[2009] WASAT 250

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   OFFICE OF THE PUBLIC ADVOCATE and GC [2009] WASAT 250

MEMBER:   MS C HILL (SENIOR SESSIONAL MEMBER)

HEARD:   24 NOVEMBER 2009

DELIVERED          :   17 DECEMBER 2009

FILE NO/S:   GAA 2676 of 2009

BETWEEN:   OFFICE OF THE PUBLIC ADVOCATE

Applicant

AND

GC
Represented person

GH
Administrator

Catchwords:

Guardianship and administration - Application for review of administration of the represented person's estate under s 86(1)(a) of the Guardianship and Administration Act 1990 (WA) - Whether the administrator is acting in the best interests of the represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 64(1)(a), s 64(1)(b), s 70, s 70(2), s 80(1), s 84, s 86(1)(a)

Result:

Administrator reappointed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Represented person       :     Self-represented

Administrator               :     Self-represented

Solicitors:

Applicant:     Self-represented

Represented person       :     Self-represented

Administrator               :     Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. On 8 February 2005, GH was appointed plenary administrator of the estate of GC. This order was confirmed on 21 February 2006. On 4 September 2009, the Office of the Public Advocate applied for a review of the order under s 86(1)(a) of the Guardianship and Administration Act 1990 (WA) stating a concern that the current administrator may not be meeting his responsibilities as outlined in s 70 (2) of the Guardianship and Administration Act 1990 (WA).

2. The Tribunal found that the current administrator is a fit and proper person to manage the estate and that he has the best interests of the represented person at heart.  The order was amended to enable GC to manage the income derived from her employment and the bank account into which it is deposited.

Background

1. GC (the represented person) is a 48­year­old woman currently living independently in Perth.  She grew up on the family farm but moved to the city for her schooling.  She returned to the farm during her teenage years to care for her mother who, then, passed away.  She continued to live there until her father became ill and she moved back to Perth to assist with his care.  Her father passed away in 2002.  GC has one brother with whom she has limited contact.  The home she now lives in is part of her late father’s estate and she has a lifetime entitlement to reside there.  Although no longer living there, she retains a strong attachment to the farm and concern for the management of that property.

2. According to Dr H, (general practitioner) in a report to the hearing held on 13 May 2009, GC has a mild intellectual handicap.  She receives support from the Disability Services Commission and also receives some services for social support and housecleaning.  She works part-time in a cafeteria five days a week.  In addition, she has a citizen's advocate, VR, with whom she has almost daily telephone contact and face­to­face contact at least once a week.

The hearing

1. The hearing was held at the same time as a hearing for an application under s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act). The outcome of that application was the reappointment of the Public Advocate as the limited guardian of GC. The original appointment was made on 13 May 2009, when the functions of the guardian were prescribed as:

   •to decide where the represented person is to live, whether permanently or temporarily;

   •to decide with whom the represented person is to live;

   •to determine the services to which the represented person should have access;

   •to determine the represented person’s need for any medical assessment and treatment; and

   •to investigate and report to the Tribunal on the nature and extent of the represented person’s needs and the adequacy and appropriateness of existing guardianship and administration orders in addressing those needs, and acting in the represented person’s best interests.

2. The outcome of the investigation was an application by the Public Advocate to the Tribunal under s 86(1)(a) of the GA Act. The concern was that the administrator was not meeting his responsibilities under s 70 of the GA Act.

3. The administrator, GH, was appointed on 8 February 2005. He has plenary powers. This appointment was confirmed on 21 February 2006. In accordance with s 80(1) of the GA Act, he has reported annually to the Public Trustee and it was noted by the Tribunal that the accounts for period 1 July 2007 to 30 June 2008 were passed. They were the fourth set of accounts submitted to the Public Trustee. The accounts for the period 1 July 2008 to 30 June 2009 have been received by the Public Trustee, but not yet examined.

Reasons for decision

Capacity

1. In accordance with s 64(1)(a) of the GA Act, before appointing an administrator, the Tribunal must first be satisfied that the person for whom the order is sought is unable, by reason of mental disability, to make reasonable judgements in respect of matters relating to all or any part of their estate.

2. The Tribunal first referred to the report submitted by Dr H, for the hearing on 13 May 2009.  Despite knowing the represented person for 10 years, he stated that he was unsure of her ability to make reasoned decisions with respect to the management of her financial matters.

3. The guardian was of the opinion that, although Dr H had known GC for some years, his assessment of her capacity was influenced by her ability to live independently in the community and go to work.  The guardian stated that in her experience, GC is able to make day­to­day decisions, but that she struggles with complex decisions.  This view was supported by PO, Local Area Coordinator at Disability Services Commission (DSC), who has known GC for several years.  CC, psychologist at DSC, stated that GC struggled with complex decisions and if under pressure, is likely to just go along with what is proposed rather than cause friction.

Need for an administrator

1. Under s 64(1)(b) of the GA Act, once satisfied that a person for whom the order is sought is unable to make reasonable judgements in respect of any part of their estate, the Tribunal must then be satisfied that the person is in need of an administrator.

2. LT, investigator representing the Public Advocate, reported that GC keeps meticulous accounts of her personal expenditure and lives very frugally.  However, the larger estate is complex, involving three family trusts, two of which GC is the beneficiary.  Currently, it also requires the leasing and management of the family farm and the upkeep of the family home in Perth.  While GC might express her wishes on certain aspects of the estate management, it was LT's view that the decision­making and implementation of those decisions would be too complex.

Whether the administrator is acting in the best interests of GC

1. LT expressed concerns about the manner in which the administration was being carried out. In her application, LT specifically refers to s 70(2) of the GA Act which states at s 70(2)(c), s 70(2)(e), s 70(2)(f), and s 70(2)(g) where an administrator is to:

   …

   (2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible ­

   …

   (c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;

   …

   (e)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;

   (f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;

   …

   (g)in such a way as to maintain any supportive relationships the represented person has; and

   …

2. LT stated that she had no concerns of financial mismanagement.  However, there were concerns relating to the conduct of the administrator.  She stated that the relationship between GH and GC has or will imminently break down and become unworkable.  GC has expressed distress or fear of dealing with GH, that GH is critical of GC in a way that is outside his role of administrator and that his communication style is often hostile with all parties involved.  GC has also said that she has not been included in the farm lease discussions, despite her request for this to occur.

3. Another issue raised by LT was that bills were not always paid on time.  On one occasion, the result was that the phone was cut off and on another, the house insurance lapsed.  In addition, she had concerns that GH had made informal loans from the farm account to GC, which were later repaid.

4. AR, a family friend, raised a concern that initially he and GC had been involved in the tender acceptance decision, but that now there was no communication from GH about this process.  AR said that at an earlier Tribunal hearing, he understood that 'everything was to be put before GC and myself', but that had never happened.

Options for estate management

1. LT identified three options for the management of the estate being; GH to remain as administrator, the Public Trustee to be appointed, or a rural accounting and farm management company be contracted to manage the farm.

2. Of the three options for estate management, GH, who does not charge a fee for his services, is by far the cheaper option. He is a retired accountant and an old family friend who has a long involvement with the family properties and trusts. He stated that he took on the role of administrator to honour the wishes of GC’s father. Both he and GC agree that, until recently they had a good relationship. Over the past two years or so, all parties agree that this relationship has soured. LT stated that GH had taken a fatherly interest in GC, and in so doing had tried to impose his standards of housekeeping, hygiene and femininity. VR, the represented person’s advocate said that GC has told her that this interference was unwelcome. LT believed that GH did not have a good understanding of GC’s disability. She also believed that GH did not recognise his obligations under s 70(2) of the GA Act. Despite this, LT stated that having GH as the administrator is a financially astute decision, if the relationship between himself and GC could be made to work.

3. While GC has a share in her father’s estate, her income from work and assets is very modest and does not seem to meet anything other than her day­to­day needs.  PO said that she believed that GH should enable some things that would substantially improve the life of GC.  She said that GC had not provided the funds for the 'chook' pen, nor had he made funds available for GC to take a the holiday that she had wanted.

4. VR stated that GC had repeatedly said to her that she is terrified of GH and that there is a serious issue with respect to the way that GH communicates with GC.  She also proposed some ways that the disposable income of GC might be increased.  These included GC being allowed to have a lodger, something she had wanted to do for some time, but had been vetoed by GH.

5. GC found it difficult to express her wishes to the Tribunal, even when all interested parties other than her guardian and her advocate left the room.  With encouragement, she stated that she wanted several items that would improve her quality of life, specifically a 'chook pen', a table on her back veranda and a vegetable garden.

6. GC wished that GH would tell her more about what was happening at the farm.  She was also worried that if some other person took over as administrator, the farm would be sold.  She stated that this was her heritage and that the family had owned it for several generations.

7. Early in the hearing, GH stated that he supported the reappointment of the guardian because he felt he had taken on that role himself and it was a little out of his 'range'. He said that he recognised that GC can understand a lot of things but that when he tried to show her some of the financial information relating to the estate she had not been interested. GH said that in the past six months he and GC had not been getting along well. He also acknowledged that he has not looked at the roles and responsibilities of an administrator as outlined in s 70 (2) of the GA Act, since he was first appointed.

8. With respect to some of the issues raised, GH stated that the reason the telephone was cut off was because he did not receive the bill.  The lapse in the house insurance was due to his own inefficiency and both matters were rectified soon after he became aware of them.  He had vetoed the proposed lodger because in his view, the person selected was not appropriate and the arrangements would not have been in GC’s best interests.  He agreed that a lodger would improve the situation of GC in terms of income and company.  GH did not remember why he had not agreed with providing the funds for the holiday, but speculated that maybe any available funds at that time had been required for other, more urgent needs.  He noted that, currently, he needs to use income from the farm to repair the roof on the Perth property.  He said that there are restrictions on what she can have if she wishes to keep the farm.

9. GH rejected the criticism that the farm could generate a greater return.  The lessee was chosen as a result of the tender process that included specifications concerning crop rotation, fertiliser use and other aspects of farm management.  The tender was drawn up under guidelines prepared by Wesfarmers.  GH said that, initially, he did not know the current lessee but over the years, they have become friendly.  He stated that the lessee has personally carried out improvements on the farm because he wanted to do it.  The farm lease will be put out to tender in December 2009 and that he would be happy to talk to AR about it.  GH stated that he has to use the income from the lease for improvements to the property in order to keep it viable.  However, he did agree with the suggestion that he could put some of the lease money into GC’s account.

10. GH stated that while he did not like personal attacks on his performance, he was willing to continue in the role in fulfilment of a promise he made to GC’s father.  He said he would comply with the request from GC that he give written notice when he wants to visit her and to work through the guardian.

11. LT noted that GH had respected the wishes of the represented person to retain the house and the farm, and that this possibly would not be respected in the hands of a private trustee.  Her concerns about the management were only in relation to small issues and that the major issue is that of the communication between GH and GC.  If these can be resolved, having GH continue as administrator was the most cost­effective way of managing the estate.

12. The guardian stated that, while she would support the re­establishment of a working relationship between the two parties, she could not act as an intermediary.

Findings

1. The Tribunal is satisfied that GC is capable of managing the income from her work and her personal bank account.  However, the Tribunal finds that GC is unable, by reason of mental disability, to make reasonable judgements in respect of matters relating to the part of her estate that concerns the management of the family farm and maintenance of the family home in Perth and that an administrator is required to do so in her best interests.

2. GH took on the role of administrator as a result of a long-standing friendship with GC's father.  He has not had a clear understanding of the role of administrator outside that of the financial and legal management of the estate.  In the past year or so, he has attempted to intervene in lifestyle matters but says that he welcomes the appointment of the guardian in that he feels she is better equipped to manage this aspect of GC’s life.  He stated that he would comply with the request to give written notice of his intention to visit GC.

3. The administrator has respected the wishes of the represented person by retaining the two family assets, that is, the farm and the house in Perth.  He uses a tender process to derive the best income from the farm property and reinvests that income into repairs and improvements.  Some of that income is also used to maintain the house in Perth and to provide GC with some extra items that he believes would benefit her.  He has not been found to mismanage the estate despite occasional mistakes when bills have not been paid or unofficial book­keeping has been used to assist GC when she required some extra funds.  To date, the Public Trustee has passed all the accounts whose examination is complete. On balance, the Tribunal finds that GH is a fit and proper person to manage the estate and that he has GC's best interests at heart.

Decision

1. The Tribunal orders the reappointment of GH as plenary administrator of GC's estate, save and excluding the income that is derived from GC’s employment and the bank account into which it is deposited.

2. The order will be reviewed in two years' time in conjunction with the review of the guardianship order.  A shorter review period is set in order to provide an opportunity for the administrator to consider and, where possible, implement some options for maximising the return from the estate and report on this to the Tribunal at the next review.

Orders

1. On an application for review under s 86 of the Guardianship and Administration Act 1990 (WA) of an order dated 21 February 2006 concerning the represented person, GC, heard on 24 November 2009 by Senior Sessional Member C Hill, it is on 8 December 2009 ordered that:

   1)The order is revoked and an administration order in the following terms is substituted for it:

   GH is appointed limited administrator of the estate of the represented person with all the powers and duties conferred by the Act, save and excluding the income derived from the represented person’s employment and the bank account into which that is deposited.

   2)This order is to be reviewed by 24 November 2011.

   I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   MS C HILL, SENIOR SESSIONAL MEMBER