Public Trustee and MB
[2009] WASAT 68
•15 APRIL 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PUBLIC TRUSTEE and MB [2009] WASAT 68
MEMBER: MS F CHILD (MEMBER)
HEARD: 10 FEBRUARY 2009
DELIVERED : 15 APRIL 2009
FILE NO/S: GAA 2920 of 2008
BETWEEN: PUBLIC TRUSTEE
Applicant
AND
MB
Represented Person
Catchwords:
Guardianship and administration - Application by the Public Trustee as administrator of the estate of the represented person seeking directions about the payment of legal costs of the former donee of an enduring power of attorney - Whether the legal costs incurred were within the scope of the donee's role - Whether the donee had acted in the best interests of the represented person such that his legal costs should be paid
Legislation:
Guardianship and Administration Act 1990 (WA), s 16(4), s 71(5), s 72(3)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented Person : Self-represented
Solicitors:
Applicant: Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
BJB and GB [2008] WASAT 307
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Public Trustee as the administrator of the estate of an elderly woman with dementia applied to the Tribunal for directions as to whether the legal costs of the woman's son, the former donee of her enduring power of attorney, should be paid from her estate.
The Tribunal determined that the legal fees for representation at a hearing before the Tribunal were incurred in his personal capacity rather than as the woman's attorney and so they were not her debt which her administrator was obliged to pay. The son had engaged a solicitor to defend his own position in respect of the proceedings before the Tribunal which had been brought by the Public Advocate following an investigation of the financial management of the woman's affairs by the son.
The Tribunal decided that it was not appropriate to exercise its discretion to direct that the fees be paid from the estate on behalf of the son as an ex gratia payment.
The Tribunal also decided that a costs order, by which the legal costs of another person could be paid from the estate of the represented person if that person was found to have acted in the best interests of the represented person, should not be made on the facts of the case.
The application for directions was dismissed.
Background
MB (represented person) is an elderly woman with a diagnosis of dementia. She lives in an aged care facility. She has one daughter and three sons.
In 2004, the represented person appointed one of her sons, RB, her attorney pursuant to an enduring power of attorney (EPA) dated 15 March 2004.
Following an investigation in 2008 of allegations of inappropriate conduct on the part of RB (donee), the Public Advocate made applications to the Tribunal seeking the appointment of the Public Trustee as an administrator of the estate of the represented person and seeking intervention in the EPA for the filing of accounts by the donee. The Public Advocate had initiated the investigation having been alerted to sworn evidence given by the donee during his examination on a judgment debt of his mother that he had transferred funds of hers to an account in his name.
A hearing of the applications was convened at which the donee appeared and was represented by a solicitor. The represented person did not attend. Also present at the hearing was a representative of the Public Advocate and another son of the represented person who attended by telephone.
At the hearing, the Public Advocate's representative (Public Advocate) submitted that funds of the represented person which she had received in settlement of legal proceedings could not be fully accounted for and the explanations given by the donee fell short of a full explanation for the disbursement of those funds. In the course of the hearing before the Tribunal, the donee acknowledged that funds of the represented person had been transferred by him from her accounts and that undocumented loans had been made to both himself (he estimated between $4,000 and $5,000) and to his brother, AB (of $20,000).
The donee submitted that he had transferred funds of the represented person to defeat the claims of creditors and later, that he also wished to defeat any claims made after the represented person's death by his siblings who he judged as not assisting his mother in her lifetime as he had done.
In respect of a cheque made out to the represented person in the amount of $14,790, he advised that he had asked his mother for a loan and the money had been loaned to him by her (T:29). The donee was uncertain as to the full amount of monies loaned to him. He agreed he had also paid his solicitor $2,000 from the represented person's funds, even though the solicitor was acting for him.
AB agreed that he had received funds of the represented person and had been asked some years before by her to repay the funds. He had not done so as he did not accept the reason she gave for her need for the funds. When the represented person had raised the question of the loan with the donee, he said that he told her she should give his brother time to repay the loan. There is no evidence before the Tribunal of the documentation of this loan or attempts by the donee to recover the funds on behalf of the represented person.
At the hearing of the Public Advocate's applications, the donee proposed that his solicitor be employed to 'set up' the accounts of the represented person and submitted that it was therefore unnecessary to appoint the Public Trustee as administrator of the represented person's estate.
The Tribunal found that the donee was not able to distinguish between his own interests and that of his mother who was completely dependent on him due to her dementing illness. The donee had transferred funds of his mother to accounts in his own name, had made loans to himself and to his brother, and when she had asked for the money to be returned, he had not acted on that request. The donee was unable to give an accurate account of monies said to have been given or loaned to him or expended on his mother's behalf and had not maintained a complete record of transactions undertaken as donee of the EPA. The Tribunal determined, based on the medical and other evidence, that the represented person was incapable of making judgments about her estate and the EPA by which she had appointed her son to manage her finances was not working effectively to protect her interests. The donee's own evidence regarding his management of the represented person's affairs made it inevitable that the EPA be revoked and an administrator appointed.
Accordingly, the Public Trustee was appointed the plenary administrator of the estate of the represented person by order dated 21 April 2008 and the Tribunal revoked the EPA appointing RB as donee.
Application for directions
The Public Trustee now seeks direction in respect of legal costs incurred by the donee for legal representation of him at the hearing of the Public Advocate's applications before the Tribunal.
Following appointment, the Tribunal heard that the Public Trustee had paid an account of the solicitor (engaged by the donee) having asked the solicitor to identify work done for the represented person. In a letter dated 9 September 2008 from the solicitor to the Public Trustee, it is stated work for the represented person was done up until 4 March 2008. (It is understood that this work related to advice regarding legal fees charged to the represented person by another firm of solicitors.) The solicitors identified work performed beyond that date as work for RB, the donee in respect of the Tribunal hearing. The fees charged for work done for the estate were $970.80. The fees charged for representation of RB were $4,680.04. As at the date of the hearing of the application for directions, the fees identified as RB's remain unpaid.
At the hearing of the application for directions, the donee submits that the remaining legal fees should be paid from the estate of the represented person. He states that the solicitor only made a distinction between the legal fees charged to the estate and to him personally at the request of the Public Trustee and that in any event his fees should be paid on the basis that he was acting in respect of his mother's affairs and that he had been doing so under an enduring power of attorney. The position put by the donee is that the solicitor who appeared at the hearing of the applications made by the Public Advocate appeared for him, but as he had sought legal advice and assistance in respect of his mother's affairs he considered that the legal costs were hers.
Having reviewed the transcript of the hearing dated 21 April 2008 and the correspondence on the Tribunal's file, it is clear that the solicitor identifies himself as representing the son of the represented person, both in the hearing and in correspondence to the Tribunal dated 11 March 2008. In more recent correspondence to the Public Trustee, the solicitor identifies a possible conflict if he appeared at the hearing of the application for directions.
Reasons
Are the legal costs those of the donor because the solicitor was engaged by the donee?
The donee contends that the solicitor acting for him at the hearing of the application for the appointment of an administrator was engaged by him to assist him in his capacity as the donee of the power of attorney executed by his mother and for that reason his legal fees should be paid from her estate.
The Tribunal determined that the solicitor acting for the donee had not acted for the represented person (or for the donee in his capacity as the donee of the EPA) in furtherance of the donor's interests in that proceeding. The reasons for this are clear: the applications made by the Public Advocate, of which the donee and his solicitor had notice, raised allegations about the performance of the donee, and had the solicitor purported to act for both the donee and the represented person, who was the donor of the EPA, this would have raised a question of significant conflict for the solicitor. As it was, the solicitor identified himself as acting for the donee in the hearing.
A donee of an EPA is entitled to seek legal advice in respect of the estate of the donor (see, for example, BJB and GB [2008] WASAT 307) and for a number of years the donee conducted legal proceedings on behalf of the represented person who was engaged in protracted litigation, the details of which are not relevant here but which involved the represented person's daughter and soninlaw. The represented person was ultimately successful in her claim and received funds following judgment in the case. Although the donee argues that in seeking legal advice and assistance in respect of the hearing before the Tribunal he was taking action on behalf of the estate as donee, the applications before the Tribunal called into question his performance in that role and sought the appointment of an administrator and intervention in the EPA. It must have been clear, because of the nature of the applications made by the Public Advocate, that the donee was not acting in respect of the estate when he engaged the solicitors for the purpose of that representation and opposing the orders sought.
In these circumstances, the legal costs are clearly those of the son in his personal capacity and not incurred by him as donee.
Should the Tribunal exercise its discretion in s 71(5) of the Guardianship and Administration Act 1990 to pay the debt on behalf of the son?
As the administrator of the estate of the represented person, the Public Trustee has the authority to pay her debts and had done so. The refusal by the Public Trustee to pay the legal costs of the represented person's son (not being a debt of the represented person) is consistent with the requirement in the Guardianship and Administration Act 1990 (WA) (GA Act) that an administrator cannot, without authority from the Tribunal, pay debts which the represented person is not required by law to pay (s 72(3) of the GA Act).
The Tribunal has a discretion in s 71(5) of the GA Act to empower an administrator to make a payment of a debt or demand that the represented person is not by law required to pay or to make a payment of an ex gratia nature (s 71(5) (a) and (b)).
The representative of the Public Trustee acknowledges that the donee has cooperated with the administrator in the location and collection of assets of the represented person. The donee states that he and his spouse have been the only family members who have consistently provided support to the represented person. However, nothing was put before the Tribunal in respect of the present circumstances of the represented person or the donee that supports the exercise of the discretion in s 71(5) of the GA Act to make an ex gratia payment from the estate of the represented person for payment of the son's legal costs in the circumstances in which they were incurred.
Should the legal costs of the son be paid from the estate of the represented person pursuant to s 16(4) of the GA Act?
The Tribunal has a discretion to order the payment of the legal costs of another person if it is satisfied that that person has acted in the best interests of the represented person in respect of the proceedings before the Tribunal.
The Tribunal is not satisfied that a costs order should be made in this case. The Public Advocate and not the son brought the application to the Tribunal. The son opposed the orders sought by the Public Advocate. He engaged a solicitor to assist him to do so. He is quite within his rights to be represented before the Tribunal but it does not follow that the represented person should pay for that representation.
In the view of the Tribunal, the son engaged a solicitor to defend his own position at the hearing of the Tribunal rather than advance the interests of the represented person. The Tribunal could not find in these circumstances that in respect of the proceedings that he had acted in his mother's best interests to warrant the payment of his legal costs from her estate.
Conclusion
The Tribunal concludes that the legal costs are those of the donee's and that it should not exercise its discretion in either s 16(4) or s 71(5) of the GA Act for the payment of those costs from the estate. The application for directions is dismissed.
Copies of the transcripts of both hearings and all documents submitted by the Public Advocate for the hearing of the original application should be made available to the Public Trustee to enable the Public Trustee to be fully appraised of the evidence of the donee before the Tribunal.
Orders
The Tribunal makes the following order.
1.The application for directions is dismissed.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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