Public Trustee and PJH
[2006] WASAT 81
•31 MARCH 2006
PUBLIC TRUSTEE and PJH [2006] WASAT 81
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 81 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2089/2005 | 12 JANUARY 2006 | |
| Coram: | MR J MANSVELD (MEMBER) | 31/03/06 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | An administrator is appointed with plenary powers save and except the function of investigating and taking necessary action in relation to a possible claim to contest a will for which a limited administrator is appointed | ||
| B | |||
| PDF Version |
| Parties: | PUBLIC TRUSTEE PJH |
Catchwords: | Guardianship and administration Administration Contesting will Inadequate provision made under a will Administrator has a conflict of interest when also executor and primary beneficiary of a will which restricts distribution to the represented person Limited administrator appointed to investigate whether represented person can contest the will Administrator also appointed with plenary powers save and except the authority and function of the limited administrator |
Legislation: | Guardianship and Administration Act 1990 (WA), s3, s 4, s 64, s 64(1)(a), s 64(1)(b), s 68, s 80, s 90 Inheritance (Family Dependants Provision) Act 1972 (WA) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PUBLIC TRUSTEE and PJH [2006] WASAT 81 MEMBER : MR J MANSVELD (MEMBER) HEARD : 12 JANUARY 2006 DELIVERED : 31 MARCH 2006 FILE NO/S : GAA 2089 of 2005 BETWEEN : PUBLIC TRUSTEE
- Applicant
AND
PJH
Represented Person
Catchwords:
Guardianship and administration Administration Contesting will Inadequate provision made under a will Administrator has a conflict of interest when also executor and primary beneficiary of a will which restricts distribution to the represented person Limited administrator appointed to investigate whether represented person can contest the will Administrator also appointed with plenary powers save and except the authority and function of the limited administrator
(Page 2)
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 64(1)(a), s 64(1)(b), s 68, s 80, s 90
Inheritance (Family Dependants Provision) Act 1972 (WA)
Result:
An administrator is appointed with plenary powers save and except the function of investigating and taking necessary action in relation to a possible claim to contest a will for which a limited administrator is appointed
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):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 PJH is a 60yearold man who suffers from a cognitive impairment and who is unable to make reasonable decisions about his financial affairs.
2 In September 2003 PJH's sister and brotherinlaw were appointed his joint plenary administrators.
3 In June 2004 PJH's mother died. She had appointed her daughter as the executor of her estate. In her will, the mother expressly restricted PJH's distribution from her estate on the basis that his needs were adequately provided for.
4 When PJH's sister and brotherinlaw, as his administrators, submitted annual accounts to the Public Trustee as required under the Guardianship and Administration Act 1990 (WA), the Public Trustee became aware of the mother's will and considered that PJH might have a claim under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (IFDP Act). The IFDP Act allowed certain people to challenge a will if they believed that adequate provision had not been made for them.
5 The Public Trustee applied to the State Administrative Tribunal for a review of the administration order and sought a determination by the Tribunal in respect of the concern that PJH may be able to make an application under the IFDP Act.
6 PJH's sister, who was his joint administrator together with her husband, as well as the executor of her late mother's estate and primary beneficiary of that estate, said that she had carried out her mother's wishes as expressed in the will. She said that she and her husband ensured that all of PJH's needs and wants were met and that they had a commitment to continue to support him. This view was endorsed by the agency which managed PJH's support needs.
7 The Tribunal accepted that PJH's sister and brotherinlaw displayed great care and affection for him and had an ongoing commitment to his wellbeing. The Tribunal was of the view, however, that they were unable to sufficiently separate their various roles and authorities so as to objectively consider the particular right of PJH to consider a claim under the IFDP Act. The Tribunal therefore appointed the Public Trustee
(Page 4)
- as PJH's limited administrator with the authority to undertake that function.
8 The Tribunal otherwise accepted that PJH's sister and brotherinlaw satisfied the provisions of the Guardianship and Administration Act 1990 (WA) in respect of PJH's estate generally, in that they acted in his best interests in managing his daytoday finances and should continue to be his administrators for that purpose.
9 The Tribunal decided to reappoint PJH's sister and brotherinlaw as his joint plenary administrators save and accept that the Public Trustee was appointed his limited administrator to investigate and take any necessary action in respect of a possible claim under the IFDP Act.
Background
10 These reasons relate to an application for review of an administration order for PJH (the represented person) made by the Public Trustee.
11 On 1 September 2003, CAS, sister of the represented person, and GJS, brotherinlaw of the represented person, were appointed his joint plenary administrators by the former Guardianship and Administration Board (the Board). The order was made for five years and was due to be reviewed by 1 September 2008.
12 On 24 January 2005, most of the functions of the Board were taken over by this Tribunal including the review of orders made by the Board. One of the functions of the Board, that of examining accounts submitted by administrators under s 80 of the Guardianship and Administration Act 1990 (WA) (GA Act), was transferred to the Public Trustee.
13 In the course of examining accounts submitted by the administrators in respect of the represented person, the Public Trustee ascertained that the represented person's mother had died on 21 June 2004 and had left a will with a direct expression that the represented person's share of her estate be limited. The principal beneficiary under the will was CAS, sister of the represented person and one of his joint administrators.
14 It appeared to the Public Trustee that CAS and GJS, as joint administrators of the estate of the represented person, had not considered whether a claim under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (IFDP Act) was warranted on behalf of the represented person.
(Page 5)
15 The Public Trustee then decided to seek a review of the administration order made by the Board on 1 September 2003 " … to ensure that the best interest[s] of the represented person have been protected." (page 2 of the application.)
16 The application was heard on 12 January 2006 and the hearing was attended by the represented person, GR and JR from the office of the Public Trustee (the Public Trustee), CAS and GJS (the administrators) and HP, the service coordinator for the agency which manages the accommodation and support funding for the represented person received from the Disability Services Commission.
17 The Tribunal reserved its decision at the hearing and delivered its decision on 19 January 2006.
Decision
18 The Tribunal has decided to revoke the order of 1 September 2003 and make an administration order in the following terms:
CAS and GJS are appointed joint plenary administrators of the represented person with all the powers and duties conferred by the GA Act save and except that the Public Trustee is appointed limited administrator of the represented person with the following function:
• To investigate and to seek legal advice on behalf of the represented person in relation to any claim he may have against his late mother's estate under the IFDP Act, and to bring and defend actions, suits and other legal proceedings in relation to the same and related matters, and if appropriate, to settle these matters.
It is further ordered that the plenary administrators pay, from the estate of the represented person, the reasonable costs and disbursements of the investigation and any legal proceedings undertaken by the Public Trustee, as limited administrator of the represented person, in relation to any claim the represented person may have against his late mother's estate under the IFDP Act.
19 The Tribunal will give the reasons for its decision by detailing the relevant legislation, discussing the represented person's capacity to make reasonable decisions for himself, stating the submissions put to the Tribunal and finally discussing the submissions in the context of the legislation to arrive at its findings and decision.
(Page 6)
The relevant legislation
20 The powers of the Tribunal on review of guardianship and administration orders are set out in s 90 of the GA Act, which provides:
"(1) Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order
(a) amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;
(b) revoke the order, or revoke the order and substitute another order for it; or
(c) without limiting paragraphs (a) and (b)
(i) revoke the appointment of any guardian or administrator;
(ii) appoint a new or additional guardian or administrator;
(iii) appoint an alternate guardian.
21 When considering administration, the Tribunal must be satisfied that the represented person is someone for whom an administrator could be appointed (the question of capacity) and if found incapable, whether the person should have an administrator appointed (the question of need). If an administrator is to be appointed, the final questions to be considered are what functions should be given to the administrator and who that administrator should be.
22 The relevant legislation is contained in s 3, s 4, s 64 and s 68 of the GA Act.
23 With regard to administration, the Tribunal needs to be satisfied that the represented person 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 is in need of an administrator (s 3, s64 of the GA Act).
(Page 7)
24 The principles to be observed by the Tribunal when dealing with proceedings under the GA Act are set out in s 4. The primary concern of the Tribunal shall be the best interests of the represented person. The remaining principles are, firstly, that every person is presumed to be capable of looking after his or her own health and safety; of making reasonable judgments in respect of matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate unless otherwise determined by the Tribunal. Secondly, an order appointing a guardian or administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.
25 The question of who should be appointed administrator is provided for in s 68 of the GA Act which reads:
"(1) 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.
(2) 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.
- (3) 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.
(4) The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.
The represented person's capacity
26 The Tribunal has been provided with two recent reports which speak to the represented person's capacity. The first is by Dr ST, the represented person's general practitioner. Dr ST states that the represented person has a "developmental delay" and that he has a limited understanding of the context and consequences of decisions relating to his personal health care, living situation and financial affairs. The second report is from MA, a representative of the support agency which manages the represented person's Disability Service Commission funding. She states that the
(Page 9)
- represented person requires support with all aspects of daily living, that he is "non-verbal" and uses sounds and gestures to make himself understood.
27 It was common ground at the hearing that the represented person is incapable of making reasonable decisions in relation to his person and his financial affairs.
The submissions
28 The Public Trustee states that the represented person's mother died on 21 June 2004 and left a will which appointed CAS as her executor. Probate was granted on 5 October 2004. The will is reported to contain a clause limiting the extent to which the represented person benefits from his mother's estate. According to the Public Trustee, in his application for review of the administration order, the relevant clause states:
"I have considered my obligation toward my son [the represented person] and believe that his needs are adequately provided for and that further provision from my estate will not improve his quality of life. My son is presently cared for by my daughter [CAS] and it is my wish that my daughter continues to care for my son. Further it is my wish that no provision beyond the gifts contained in this my will be made for my son from the estate."
29 The Public Trustee submits that what the administrators would be expected to do in such circumstances is to consider whether there are grounds to make an application under the IFDP Act, on behalf of the represented person, on the basis that adequate provision might not have been made for him in his late mother's will. The position of CAS is difficult, however, given that she is a major beneficiary under the will and a joint administrator of the estate of her brother, the represented person. The Public Trustee submits that CAS is in a position of conflict and might not be able to separate her roles as executor, beneficiary and administrator such that she, together with her husband GJS (the other joint administrator), can make an objective assessment of the interests of the represented person as regards his late mother's estate.
30 The Public Trustee states that the application for review of the administration order:
" … is in no way intended to be a criticism of [the administrators]. On the contrary, we are sympathetic to the difficult position in which they find themselves, from a strictly
(Page 10)
- legal point of view. Whilst with some 30 odd years of experience in this area, it might occur to me that there's potential for an Inheritance Act claim, it wouldn't have occurred to [the administrators], and this application is not in any way intended to suggest that they haven't always acted in [the represented person]'s best interests." (page 7 of the transcript.)
31 CAS has provided the Tribunal with a copy of an affidavit she lodged with the Probate Division of the Supreme Court of Western Australia on 22 July 2004 as executor of her late mother's estate. The affidavit includes a statement of the assets and liabilities of the estate; the assets are shown as bank accounts to the value of $33 983 and a property valued at $249 000. There are no liabilities recorded.
32 CAS submits that it has never occurred to her that there is a conflict in her respective roles as executor and primary beneficiary of her late mother's will and joint administrator of the represented person. She states:
"And my mother, even to other family members and myself, had always told me that the house would come to me, where my brother would be looked after in the same manner as he always was. I looked after my mother and [the represented person], from 1998 until 2003, and because of high care, I was unable to look after him any more." (page 7 of the transcript.)
33 CAS submits that as executor of her late mother's estate she has acted according to her mother's wishes which are clearly articulated in her will. CAS states that her mother, by giving her the house, would ensure that she would always look after the represented person.
34 In respect of the represented person's needs, CAS and GJS state that they provide everything for the represented person; they provide him with whatever he wants. If, for example, a holiday was suggested by the represented person's support agency and it would cost several thousand dollars, then CAS and GJS state they would provide the funds. "He doesn't miss out on anything." (GJS at page 9 of the transcript.) GJS further states:
"To me it['s] bureaucracy gone crazy. That's the way I look at it. We believe both [CAS] and I more than adequately look after him. He's got no worries on money. Care. Doesn't matter what he wants, he gets if he runs short of money, more
(Page 11)
- money goes in. If he wants and we believe we read him far better than anybody else. And we look after his interests." (page 16 of the transcript.)
35 CAS submits that were the represented person to receive an inheritance, he would not be able to manage that inheritance and "that's why it was done like this." (page 10 of the transcript.)
36 HP, the service coordinator for the represented person's support agency, states her view that CAS and GJS have always had the represented person's best interests at heart. She states that the represented person's current accommodation is a private tenancy and that CAS and GJS contribute to the rental cost. The represented person receives funding from the Disability Services Commission for his support needs. Negotiations are currently under way with the Department of Housing and Works for that agency to purchase a house for the represented person so that he can move from the costly private rental.
Discussion of the submissions and findings of the Tribunal
37 There is no dispute that the represented person suffers from a cognitive impairment as a consequence of which he is unable to make reasonable judgments in respect of matters relating to all of his estate. He is also in need of an administrator and cannot have such a need met by means less restrictive than the making of an administration order. In that regard, the situation of the represented person has not changed since the Board appointed CAS and GJS as his joint plenary administrators in September 2003. The represented person therefore continues to satisfy the provisions of s 64(1)(a) and s 64(1)(b) of the GA Act.
38 The critical question for the Tribunal is who should be the administrator and what functions should be conferred on him or her given the Public Trustee's contention that the represented person may have a claim under the IFDP Act.
39 The Tribunal has heard submissions that CAS and GJS demonstrate significant affection and support for the represented person. The Tribunal accepts these submissions. CAS and GJS clearly act in what they consider to be the represented person's best interests and HP, as the service coordinator of the represented person's support agency, attests to their ongoing dedication and determination to meet his needs.
40 When the represented person's mother died in June 2004, she left a will which expressly restricted his entitlement to her estate.
(Page 12)
- Had the represented person at that point been capable of doing so, he might have decided that he did not agree with the provisions of his late mother's will and that he should give consideration to contesting it. One option would have been to consider a claim under the IFDP Act on the view that his late mother has not made adequate provision for him.
41 The circumstances are such that the represented person could not and cannot entertain such a consideration because he suffers from a cognitive impairment which prevents him from making reasonable judgments about these matters. If consideration is to be given, then someone has to do it on his behalf.
42 As the executor of her late mother's estate, CAS states that she has carried out her mother's wishes as articulated in her will, and as was accepted, that she would continue to support and care for the represented person. CAS is the primary beneficiary in her mother's will.
43 The submission of CAS and GJS is that they ensure that all of the represented person's needs and wants are met and that they have made a commitment to continue to do so. The Tribunal accepts that their intentions are genuine. The Tribunal is, however, concerned that, were the situation to change such that CAS and GJS were no longer able to support the represented person in this way, he might be disadvantaged and that the disadvantage stems from a lack of adequate provision in his late mother's will.
44 It is not for the Tribunal to decide this particular matter but it is the role of the Tribunal be make certain an administrator is appointed who will undertake an objective assessment of the represented person's potential further entitlement in his late mother's estate.
45 The Tribunal has already accepted that both CAS and GJS display great care and affection for the represented person and have a commitment to his wellbeing. The Tribunal is of the view, however, that they are unable to sufficiently separate their various roles and authorities so as to objectively consider the particular right of the represented person to consider a claim under the IFDP Act. The Tribunal must therefore appoint the Public Trustee as limited administrator of the represented person with the authority to undertake that function.
46 The Tribunal otherwise accepts that CAS and GJS satisfy the provisions of s 68 of the GA Act in respect of the represented person's estate generally in that they act in his best interests in managing his
(Page 13)
- daytoday finances and should continue to be his administrators for that purpose.
47 The Tribunal will revoke the order made by the Board on 1 September 2003 and make an order appointing CAS and GJS as plenary administrators of the estate of the represented person save and except that the Public Trustee is appointed limited administrator to investigate, seek legal advice and take any necessary action in relation to any claim the represented person may have under the IFDP Act in respect of his late mother's estate.
48 The Tribunal further orders that the plenary administrators pay from the estate of the represented person those reasonable costs and disbursements incurred by the Public Trustee in his role as limited administrator.
49 The order will be reviewed in twelve months, by which time it is anticipated that the Public Trustee will have determined what action, if any, is to be taken on behalf of the represented person.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
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