Public Trustee and MB

[2009] WASAT 68

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

1. 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.

2. 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.

3. 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.

4. 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.

5. The application for directions was dismissed.

Background

1. 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.

2. 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.

3. 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…