PMB and LJB
[2015] WASAT 96
•26 AUGUST 2015
PMB and LJB [2015] WASAT 96
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 96 | |
| 02/09/2015 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1032/2015 | 26 AUGUST 2015 | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) MR J MANSVELD (SENIOR MEMBER) MS N OWEN-CONWAY (MEMBER) | 26/08/15 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Limited administration order affirmed appointing Perpetual Trustees Limited as limited administrator of the estate of the represented person in Western Australia Remuneration of limited administrator out of estate authorised | ||
| B | |||
| PDF Version |
| Parties: | PMB LJB |
Catchwords: | Administration Review by Full Tribunal of order appointing trustee company as limited administrator of represented person's Western Australian property Represented person has dementia and resides in New South Wales Trustee company appointed by represented person as enduring attorney in New South Wales instrument and as executor under represented person's will Whether administration order can be made Whether Tribunal can appoint trustee company as administrator Whether trustee company will act in represented person's best interests and is otherwise suitable for appointment Whether Tribunal should authorise remuneration of trustee company as administrator of represented person's Western Australian estate |
Legislation: | Conveyancing Act 1919 (NSW), Sch VII Guardianship and Administration Act 1990 (WA), s 3(1) s 4, s 4(2), s 4(3), s 17A, s 64, s 67(1), s 68, s 104A, s 117 State Administrative Tribunal Act 2004 (WA), s 17(1), s 27(1), s 27(2) |
Case References: | Nil |
Summary | The represented person has dementia and resides in a dementia specific unit of a nursing home in New South Wales. The represented person owns a residential apartment in Western Australia. In 1994, the represented person appointed Perpetual Trustees Limited, a trustee company, as her enduring attorney under a New South Wales enduring power of attorney and as the executor of her estate under her will.,A single member of the Tribunal appointed Perpetual Trustees Limited as limited administrator of the represented person's apartment in Western Australia. Ms PMB, one of the represented person's daughters, sought review of that decision by a Full Tribunal and proposed the appointment of the Public Trustee, rather than Perpetual Trustees Limited, as administrator of her mother's Western Australian property.,Under s 67(1) of the Guardianship and Administration Act 1990 (WA), the Tribunal may make an administration order in respect of a person who is not resident or domiciled in Western Australia, but any such order is limited to the person's estate in Western Australia. The Full Tribunal determined that it has power under s 68(2)(b) of the Guardianship and Administration Act 1990 to appoint Perpetual Trustees Limited as administrator of the represented person's Western Australian property, because she made a will appointing that trustee company as executor and the will remains unrevoked.,The Full Tribunal also determined that it should appoint Perpetual Trustees Limited as limited administrator, because it is satisfied that the trustee company will act in the best interests of the represented person and is otherwise suitable to act as the administrator. The Full Tribunal found that it is in the best interests of the represented person for her estate in both New South Wales and Western Australia to be managed as an integrated whole.,Finally, the Full Tribunal determined under s 117(1) and s 117(4) of the Guardianship and Administration Act 1990, that because of the complexity of the estate, being spread over two jurisdictions and requiring management as an integrated whole, remuneration should be paid to Perpetual Trustees Limited in respect of the administration out of the estate at the rate of 1.1% per annum of the value of the represented person's estate in Western Australia. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PMB and LJB [2015] WASAT 96 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT)
- MR J MANSVELD (SENIOR MEMBER)
MS N OWEN-CONWAY (MEMBER)
- Applicant
AND
LJB
Represented Person
Catchwords:
Administration Review by Full Tribunal of order appointing trustee company as limited administrator of represented person's Western Australian property Represented person has dementia and resides in New South Wales Trustee company appointed by represented person as enduring attorney in New South Wales instrument and as executor under represented person's will Whether administration order can be made Whether Tribunal can appoint trustee company as administrator Whether trustee company will act in represented person's best interests and is otherwise suitable for appointment Whether Tribunal should authorise remuneration of trustee company as administrator of represented person's Western Australian estate
Legislation:
Conveyancing Act 1919 (NSW), Sch VII
Guardianship and Administration Act 1990 (WA), s 3(1) s 4, s 4(2), s 4(3), s 17A, s 64, s 67(1), s 68, s 104A, s 117
State Administrative Tribunal Act 2004 (WA), s 17(1), s 27(1), s 27(2)
Result:
Limited administration order affirmed appointing Perpetual Trustees Limited as limited administrator of the estate of the represented person in Western Australia
Remuneration of limited administrator out of estate authorised
Summary of Tribunal's decision:
The represented person has dementia and resides in a dementia specific unit of a nursing home in New South Wales. The represented person owns a residential apartment in Western Australia. In 1994, the represented person appointed Perpetual Trustees Limited, a trustee company, as her enduring attorney under a New South Wales enduring power of attorney and as the executor of her estate under her will.
A single member of the Tribunal appointed Perpetual Trustees Limited as limited administrator of the represented person's apartment in Western Australia. Ms PMB, one of the represented person's daughters, sought review of that decision by a Full Tribunal and proposed the appointment of the Public Trustee, rather than Perpetual Trustees Limited, as administrator of her mother's Western Australian property.
Under s 67(1) of the Guardianship and Administration Act 1990 (WA), the Tribunal may make an administration order in respect of a person who is not resident or domiciled in Western Australia, but any such order is limited to the person's estate in Western Australia. The Full Tribunal determined that it has power under s 68(2)(b) of the Guardianship and Administration Act 1990 to appoint Perpetual Trustees Limited as administrator of the represented person's Western Australian property, because she made a will appointing that trustee company as executor and the will remains unrevoked.
The Full Tribunal also determined that it should appoint Perpetual Trustees Limited as limited administrator, because it is satisfied that the trustee company will act in the best interests of the represented person and is otherwise suitable to act as the administrator. The Full Tribunal found that it is in the best interests of the represented person for her estate in both New South Wales and Western Australia to be managed as an integrated whole.
Finally, the Full Tribunal determined under s 117(1) and s 117(4) of the Guardianship and Administration Act 1990, that because of the complexity of the estate, being spread over two jurisdictions and requiring management as an integrated whole, remuneration should be paid to Perpetual Trustees Limited in respect of the administration out of the estate at the rate of 1.1% per annum of the value of the represented person's estate in Western Australia.
Category: B
Representation:
Counsel:
Applicant : In Person
Represented Person : N/A
Solicitors:
Applicant : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 Ms PMB (applicant) has sought review, pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act), by a Full Tribunal in relation to a decision made by a single member Dr Bertus De Villiers on 25 February 2015, to make a limited administration order in relation to the estate of applicant's mother, Mrs LJB (represented person).
2 The single member, having made a declaration that the represented person is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all of her estate and is in need of an administrator of her estate, appointed Perpetual Trustees Limited (Perpetual) as limited administrator of the estate of the represented person with the following functions:
The power and authority to manage and control the property situated at [address] Rivervale, Western Australia, including the powers and authority to maintain, improve, lease or sell the property and to invest, expend and manage the income derived from this property in the best interests of the represented person.
3 The administration order was made to be reviewable by the Tribunal by 24 February 2020.
Background
4 A review by a Full Tribunal under s 17A of the GA Act comes within the Tribunal's review jurisdiction under s 17(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Under s 27(1) of the SAT Act, the review is to be by way of a 'hearing de novo'. Under s 27(2) of the SAT Act, '[t]the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.'
5 Perpetual (formerly called Permanent Trustee Company Limited) is the donee under an enduring power of attorney (EPA) made by the represented person in New South Wales on 22 March 1994, under Sch VII of the Conveyancing Act 1919 (NSW). Paragraph 1 of the EPA states that the represented person appointed Permanent Trustee Company Limited 'to be my attorney to exercise subject to any conditions and limitations specified in Part 2 of this instrument, the authority conferred on my said attorney by Section 163B of the Conveyancing Act, 1919, to do on my behalf anything I may lawfully authorise an attorney to do'. Paragraph 4 of the EPA states that it was 'given with the intention that it will continue to be effective notwithstanding that after its execution I suffer loss of capacity through unsoundness of mind.'
6 The Tribunal heard evidence from Ms PC who is a senior lifestyle and asset consultant with Perpetual. Ms PC said that Perpetual was not called upon to act as the donee under the EPA until about 2011 when the represented person decided to sell her residential property in Forrestfield, a suburb of Sydney. At that time, Ms PC informed the Tribunal, and there is no evidence to the contrary, the represented person was of full capacity. Ms PC also gave evidence that having assisted the represented person to sell her property in Forrestfield and having also assisted the represented person to purchase an independent living unit in a retirement village and paid the balance of the sale of the original home into the represented person's bank account, Perpetual did not act further under the EPA until 2014, when Perpetual was sent a report from a geriatrician stating that the represented person, unfortunately, had been diagnosed with dementia.
7 The single member made the determination to appoint Perpetual as limited administrator for the estate of the represented person, following an application to the Tribunal made by the applicant under s 40 of the GA Act for the appointment of an administrator for her mother in relation to the mother's property in Western Australia, namely, the unit in Rivervale. In the application made by the applicant to the Tribunal for the appointment of an administrator, the applicant proposed herself to be appointed as the administrator and indicated in the application that such an order was necessary to protect her mother 'as she has advanced dementia'.
8 Ultimately at the hearing for the single member, the applicant proposed that she be appointed jointly with her brother, Mr GB, to be administrators in relation to the Western Australian property.
9 However, Dr De Villiers decided to appoint Perpetual as limited administrator, because:
… it is, in my view, in the best interests of [the represented person] that an independent person is appointed as the administrator of her unit here in Western Australia, and that independent person should be the same entity that she appointed in 1994, namely, Perpetual Trustees, because they can manage her entire estate in an integrated fashion. (T: 25/2/15 26.9)
10 The evidence of Ms PC, which has not been questioned by any party, is that the estate of the represented person in New South Wales consists of the unit in the retirement village in Neutral Bay, together with a sum of money in the bank of approximately $400,000 and shares valued at approximately $300,000. The unit in the retirement village, Ms PC indicated in evidence, is valued at approximately $600,000.
Legislative framework
11 Before addressing the issues that arise for determination, we will outline the legislative framework in the GA Act that applies to this matter.
12 Section 4 of the GA Act sets out principles that the Tribunal in addressing this application is required to observe. In particular, s 4(3) of the GA Act states that:
Every person shall be presumed to be capable of
…
(c) managing his own affairs; and
(d) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
13 Section 4(2) of the GA Act states that:
The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
14 Section 64(1) of the GA Act provides:
Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c) a person to be the administrator; or
(d) persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
15 Section 67(1) of the GA Act is also relevant and provides as follows:
An order may be made under section 64(1) in respect of a person who is not resident or domiciled in Western Australia, but any such order is limited to the person's estate within Western Australia.
16 In this case, the represented person is not resident or domiciled in Western Australia; she lives in New South Wales. Therefore, the Tribunal's function in this case is limited to considering whether an order can be made and if so whether it should be made in relation to the represented person's estate within Western Australia, namely the unit in Rivervale.
17 Section 68 of the GA Act addresses who may be appointed as an administrator. Subsection (1) of s 68 states as follows:
An administrator (including a joint administrator) shall be
(a) an individual of or over the age of 18 years; or
(b) a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal
(c) will act in the best interests of the person in respect of whom the application is made; and
(d) is otherwise suitable to act as the administrator of the estate of that person.
18 Subsection (2) of s 68 is relevant in this case and states as follows:
The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that
(a) there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b) the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
19 Ms PC gave evidence, which was not questioned, that the represented person made a will at the time that she made the EPA in March 1994, under which Perpetual is appointed as the executor of the will. Ms PC also gave evidence, which was not questioned, that that will remains unrevoked.
20 Subsection (3) of s 68 states as follows:
For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible
(a) the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b) the wishes of that person; and
(c) whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
21 Finally s 117 of the GA Act concerns remuneration of an administrator and states as follows:
(1) The State Administrative Tribunal may fix remuneration or a rate of remuneration and order that the same be paid to an administrator out of the estate of the represented person if the Tribunal considers that, because of the size or complexity of the estate or both, remuneration should be paid to the administrator.
(2) A guardian, and except as provided in subsection (1) an administrator, shall not receive remuneration for services rendered to the represented person.
(3) Nothing in this section
(a) prevents the Public Trustee from receiving remuneration under the Public Trustee Act 1941; or
(b) limits the operation of section 16 of this Act or section 39, 87 or 88 of the State Administrative Tribunal Act 2004.
(4) Subject to subsection (3)(a), a corporate trustee shall only be entitled to commission in respect of the capital of the estate of a represented person to the extent that the State Administrative Tribunal expressly allows.
Issues for determination
22 The following five issues arise for determination in this review:
(1) Whether the represented person is a person for whom an administration order can be made.
(2) Whether there is a need for an administration order (including whether there is a less restrictive alternative to the making of an administration order).
(3) Whether Perpetual or the Public Trustee should be appointed as the administrator.
(4) Whether remuneration should be authorised for Perpetual as administrator.
(5) When should the administration order be reviewed?
Can an administration order be made?
23 The first issue that the Tribunal has to consider in this case is whether the represented person is a person for whom an administration order can be made. As we have said, under s 4 of the GA Act, every person is presumed to be capable of making reasonable decisions for themselves. This is the socalled presumption of capacity and is a cornerstone of the GA Act.
24 In the circumstances of this case, however, we are satisfied that the represented person is a person for whom an administration order can be made and, in particular, we are satisfied that under s 64(1) of the GA Act that she is unable by reason of a 'mental disability' to make reasonable judgments in respect of matters relating to all of her estate. The term 'mental disability' is defined in s 3(1) of the GA Act to include dementia.
25 The medical evidence before the Tribunal demonstrates that the represented person suffers from dementia and that as a result of dementia she is not capable of making reasonable decisions for herself.
26 The medical evidence consists, firstly, of two reports of Dr JPH (a neurologist) dated 21 October 2014 and 9 January 2015. Dr JPH refers in the first report to the represented person having 'deteriorated considerably' since moving into the retirement village. In the second report of 9 January 2015, Dr JPH specifically expresses the opinion that as a result of the represented person's dementia, which he describes as a variant of frontotemporal dementia, she is incapable of making reasonable decisions in relation to her financial affairs.
27 Secondly, Dr JS in a report dated 23 August 2015 states that the represented person is under her care in the dementia specific unit at a nursing home in Sydney and that the represented person is suffering from frontotemporal dementia which affects her language.
28 Finally, there is a doctor's guide report from Dr DW dated 16 August 2015. Dr DW is the represented person's treating general practitioner and he also confirms a diagnosis of dementia of a frontotemporal nature which he describes as 'progressive'. Dr DW also indicates that the represented person has no insight into her deterioration. Finally, Dr DW expresses the opinion, consistently with Dr JPH, that the represented person is incapable by reason of dementia from making reasonable decisions in relation to her financial affairs. He comments, in particular, that 'her higher cognitive functions are becoming impaired.'
29 On the basis of this medical evidence we are satisfied that the represented person is unable to make reasonable decisions in relation to her financial circumstances as a result of her dementia which is relevantly a mental disability. This affects the whole of her estate which includes the estate in Western Australia.
Is there a need for an administration order?
30 The second question we have to decide is whether there is a need for an administration order in relation to the represented person.
31 We are satisfied that there is a need. There is no less restrictive alternative. The represented person has a unit in Rivervale which needs to be managed in her best interests. Although there is an EPA, that document has not been recognised by an order of the Tribunal under s 104A of the GA Act in Western Australia and although it may be accepted in some contexts, there is no certainty that it would be accepted in all contexts for the management of the represented person's unit. Therefore, there is a need for an administrator to be appointed in relation to the management of the unit.
Should Perpetual or the Public Trustee be appointed as the administrator?
32 The third matter that the Tribunal needs to consider is who should be appointed as administrator.
33 As we mentioned, originally the applicant proposed herself, and subsequently she proposed herself and her brother, Mr GB, to be appointed as administrator. At the hearing before the Full Tribunal, the applicant did not propose herself, and Mr GB, although invited to take part in this hearing, has not attended and has not proposed himself to be administrator.
34 Rather, at the hearing before the Full Tribunal, the applicant proposed that the Public Trustee of Western Australia should be appointed as administrator on the basis that there is no other person who is suitable or willing to act.
35 Ms PC said that Perpetual is willing to remain appointed as limited administrator and expressed the view that Perpetual should be appointed by the Tribunal. The continued appointment of Perpetual is supported by Ms EL, who is the represented person's other daughter and who was appointed as limited guardian of the represented person by the New South Wales Civil and Administration Tribunal earlier this year. Ms EL said that her mother's estate has been managed well by Perpetual and, in particular, by Ms PC, who Ms EL described as 'reliable' and 'approachable'. The continued appointment of Perpetual is also supported by the represented person's brother, who described Perpetual as 'on the ball'.
36 The applicant contests the suitability of the appointment of Perpetual as the administrator essentially for three reasons.
37 Firstly, the applicant asserts that Perpetual and, in particular, Ms PC, has financially mismanaged her mother's estate. Indeed, the applicant has asserted variously in documents that there has been 'fraud' and 'deception' on the part of Ms PC. In particular, the applicant considers that there was financial mismanagement or fraud or indeed deception in the sale of the property at Forrestfield in 2011. The applicant asserted that the sale at one million dollars significantly undervalued that property in the order of 'hundreds of thousands of dollars'. The applicant also raised concerns about the management, or as she said 'mismanagement', of her personal effects which she says were at that property.
38 Serious allegations of wrongdoing, such as financial mismanagement and certainly fraud and deception, would require clear and cogent evidence for the Tribunal to be able to make a finding. In the circumstances of this case, there is simply no cogent evidence to that effect. Rather, there is merely assertion by the applicant. We are certainly not satisfied that Ms PC or Perpetual has in any way financially mismanaged the represented person's estate or that they have in any way acted fraudulently or deceptively.
39 Secondly, the applicant contends that there has been a lack of cooperation or a lack of information provided to her by Perpetual as the enduring attorney. However, in the various submissions provided by the applicant to the Tribunal, which in total number some several hundreds of pages with attachments, there is clear evidence that there has been considerable communication between the applicant and Ms PC in particular. There is also evidence that Ms PC has acted entirely professionally and courteously with the applicant in their dealings. Indeed, to take but one email of many emails provided to the Tribunal by the applicant of her communications with Ms PC, in an email of 18 August 2014, the applicant wrote to Ms PC thanking her for her 'quick response' to her query and stating 'I don't know what I would do without you!'. The applicant described Ms PC in the same email as 'my rock' and said that Ms PC is 'the only person I trust in Sydney'.
40 The Tribunal is therefore certainly not satisfied that Perpetual has not communicated with the applicant, or with anyone else relevant to the administration; quite the opposite, the evidence clearly indicates that Perpetual has acted entirely appropriately and has consulted and has provided information when appropriate to interested persons.
41 Thirdly, the applicant contends that the EPA provided by her mother, appointing Perpetual in 1994, has been revoked. There is, however, no evidence before the Tribunal that that is the case. The applicant has provided emails indicating that her mother discussed revocation of the EPA with Ms PC in 2011, when the represented person had capacity, but also indicating that Ms PC advised her against revocation, which appears to have been sensible advice as matters have turned out.
42 There is simply no evidence before the Tribunal that could satisfy the Tribunal that the EPA has been revoked. Of course that would not be determinative, although it could indicate the views and wishes of the represented person.
43 As mentioned previously in these reasons, s 68 of the GA Act sets out detailed provisions in relation to who may be appointed as an administrator. In particular, the Tribunal must be satisfied that the person appointed as the administrator will act in the best interests of the person in respect of whom the application is made and is otherwise suitable to act as the administrator of the estate of that person. We are satisfied that Perpetual will act in the best interests of the represented person, as evidenced by their conduct over a number of years, and is otherwise suitable to act as the administrator of the estate of that person, given their experience in the management of the represented person's estate in New South Wales.
44 Under s 68(3) of the GA Act, the Tribunal, for the purpose of determining whether a proposed administrator will act in the best interests of the person in respect of whom the application is made and is otherwise suitable to act, is to take into account the compatibility of the proposed appointee with the person in respect of whom the application is made and the guardian, if any, of that person, the wishes of the person in respect of whom the application is made and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator. In the circumstances of this case, there is evidence that there is a high level of compatibility of Perpetual with the represented person, given that the represented person placed considerable trust and confidence in Perpetual, both in terms of the appointment of that company as her enduring attorney and the appointment of that company as the executor under her will. Furthermore there is evidence that there is high level of compatibility between Perpetual and the limited guardian of the represented person, Ms EL.
45 In relation to the wishes of the represented person, again, the appointment by her of Perpetual as her enduring attorney and as the executor of her deceased estate, gives strong evidence and we are satisfied as we have said that Perpetual will act in her best interests and is otherwise suitable to act. In that regard, although the company itself is based in New South Wales, it has a local office and has been managing the Western Australian estate since appointment by the Tribunal on 25 February 2015.
46 As we mentioned earlier, subsection (2) of s 68 of the GA Act limits circumstances in which a corporate trustee can be appointed. However, we are satisfied that the circumstances in paragraph (b) of s 68(2) of the GA Act are met in the circumstances of this case, because the represented person made a will appointing Perpetual as the executor of her estate and that will remains unrevoked at the time of the appointment by the Tribunal of that company as administrator. In the circumstances, therefore, the Tribunal is not precluded from appointing Perpetual.
47 We consider that Perpetual is appropriate for appointment in all of those circumstances. Furthermore, we agree with the observation of the single member that it is appropriate, in the best interests of the represented person, that there be, if possible, a single third party administrator to manage the entire estate as an integrated whole. Indeed, that has become even more important as the circumstances of the represented person have changed since the last hearing. In particular, she is now in a dementia specific facility. There will be a need to review her estate in her best interests to provide a refundable bond of approximately half a million dollars. It is appropriate that there be single third party considering the whole of her estate, including the Western Australian estate, to determine what is in her best interests in terms of the realisation or liquidation of assets for the payment of that bond the payment of necessary expenses for her welfare into the future.
48 Finally, we note that the Public Trustee proposed by the applicant for appointment as administrator was represented at the hearing by an officer who expressed the view that it would be appropriate for Perpetual to be appointed, rather than the Public Trustee, essentially for the reasons that we have articulated, in order to manage the estate as integrated whole in the best interests of the represented person.
49 In all of those circumstances, we consider that the appointment of Perpetual is in the best interests of the represented person and that company should be appointed as her administrator. Given that that company is available, is appropriate and will act in the best interests of the represented person, it is not necessary to appoint the Public Trustee as an administrator of last resort in the circumstances.
Should remuneration be authorised for the administrator?
50 The next question that the Tribunal must consider is whether remuneration should be authorised for Perpetual as the administrator. Ms PC gave evidence that Perpetual has charged and continues to charge the estate as a whole at the rate of 1.1% of the value of the estate, which includes the value of approximately $260,000 of the Rivervale unit.
51 The Tribunal is satisfied under s 117(1) of the GA Act that the circumstances of the estate, in particular, the fact that it is spread over two jurisdictions and that there is a need to make decisions having regard to the estate as an integrated whole in the best interests of the represented person in the context of her move and the payment of the bond, introduces a level of complexity of the estate which makes a remuneration of the administrator at the rate currently charged appropriate and we will make an order authorising that remuneration at the rate of 1.1% of the value of the Western Australian unit, insofar as the administrator is acting as the administrator of the estate in Western Australia.
When should the administration order be reviewed?
52 Finally, the Tribunal must consider when the administration order should be reviewed. Orders for administration cannot be made indefinitely and must be reviewed within no longer than five years.
53 The single member made the order reviewable within five years. We agree that that is appropriate, given that unfortunately the represented person's underlying mental disability is a progressive illness and is unlikely therefore to improve. We will therefore make the order reviewable by 24 February 2020, which is the date specified by the member.
Orders
54 We therefore make the following declaration and orders:
The Tribunal declares that the represented person:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b) is in need of an administrator of her estate,
and the Tribunal orders that:
1. The application for review is dismissed.
2. The administration order made on 25 February 2015 is affirmed as follows:
Perpetual Trustees Limited of Level 29, 2 The Esplanade, Perth, Western Australia is appointed limited administrator of the estate of the represented person with the following functions:
- (a) The power and authority to manage and control the property situated at [address] Rivervale, Western Australia, including the powers and authority to maintain, improve, lease or sell the property and to invest, expend and manage the income derived from this authority in the best interest of the represented person.
3. Pursuant to s 117(1) and s 117(4) of the Guardianship and Administration Act 1990 (WA), with effect from 25 February 2015, the administrator is authorised to claim and be paid from the estate of the represented person fees or commission in respect of the administration at the rate of 1.1% per annum of the value of the represented person’s estate in Western Australia.
4. The administration order is to be reviewed by 24 February 2020.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
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