Re ; Ex Parte MM - [2011] WASAT 47

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE ; EX PARTE MM [2011] WASAT 47

MEMBER: MS F CHILD (MEMBER)

HEARD: 7 JANUARY 2011

DELIVERED : 24 MARCH 2011

FILE NO/S: GAA 3246 of 2010
GAA 3249 of 2010
GAA 3493 of 2010
GAA 3494 of 2010
EX PARTE
MM
Applicant
AND
GM
Represented Person

Catchwords:

Guardianship and administration Application for legal costs following applications for the appointment of a guardian and an administrator Application for costs pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) Factors to be considered in determining costs applications Whether the Tribunal should depart from the rule that parties bear their own costs

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2)(f), s 16(4), s 64, s 77(1)(a)
Mental Health Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Jackson McDonald
Represented Person : N/A

Solicitors:

Applicant: Jackson McDonald
Represented Person : N/A

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

IO Ex Parte VK [2008] WASAT 8
LC and JS [2007] WASAT 127
M [2008] WASAT 262 (S)
Pearce & Anor and Germain [2007] WASAT 291 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications were made to the Tribunal for guardianship and administration orders to be made for GM, a 93yearold man who was detained as an involuntary patient under the Mental Health Act 1996 (WA). The social worker from the treating team from the facility where GM was an inpatient sought the appointments of the Public Advocate as GM's guardian and the Public Trustee as the administrator of his estate. After the social worker's applications had been listed for hearing, GM's son, MM, made his own applications in an effort to have the hearing of the applications brought forward to a date prior to his father's planned departure from Western Australia.
At the hearing of the applications, MM was appointed plenary administrator of the estate of GM, and his limited guardian to consent to proposed medical treatment. The Public Advocate was appointed limited guardian to deal with other aspects of personal decisionmaking for GM, including where he was to live on his discharge from hospital, travel and the services to which he should have access.
MM sought payment of his legal costs incurred in respect of his applications to the Tribunal regarding his father.
Although the costs of a party can be paid from the estate of the represented person if the Tribunal is satisfied that that party has acted in the best interests of the represented person, the Tribunal dismissed MM's application because it was not satisfied that a costs order should be made in this case.

Background

Applications were made to the Tribunal for the appointment of a guardian and administrator for GM (represented person) by the social worker from the treating team at an Older Adult Mental Health Service facility where the represented person is detained as an involuntary patient under the Mental Health Act 1996 (WA) (MH Act).
The applications were filed with the Tribunal on 9 November 2010 and proposed the appointment of the Public Advocate as guardian and the Public Trustee as administrator of the estate of the represented person. The applications state that the represented person has a cognitive impairment, possibly Alzheimer's type (dementia), and was awaiting neurocognitive testing results. His diagnosis was said to be complicated by a lifelong history of schizotypal personality traits, with differential late-onset schizophrenia and/or organic psychosis related to dementia. The application states that the represented person is in a secure facility under the MH Act, as he was refusing medical care and wants to continue driving his motorhome, despite the loss of his driver's licence and his poor eyesight. The represented person is reported to be suffering impaired vision and hearing but refuses to pay for adequate eyeglasses and hearing aids. The represented person is said to have other health complications, including a heart condition, and requires an ablation procedure which requires formal consent from a guardian as the represented person is incapable of giving consent.
In correspondence sent to the Tribunal dated 25 November 2010, solicitors for the applicant son (MM) advised that his father was booked to return on a flight to the United States on 15 December 2010 and urgently sought the hearing of the applications to be brought forward before that date.
An application for review of the represented person's involuntary status was heard on 14 December 2010 by the Mental Health Review Board, the Board determining that GM should remain an involuntary patient.
The hearing of the applications before the Tribunal took place on 7 January 2011.
During the hearing, it was the expressed wish of the represented person that MM assist him with decisions.
The Tribunal determined that MM was suitable for appointment as the administrator of the estate of the represented person; MM stated that he holds a senior position in his employment and he appears to present with the requisite skills necessary to administer the estate.
The Tribunal also decided that, consistent with the represented person's expressed wishes, MM could be appointed limited guardian for the represented person to give consent to proposed medical treatment while the represented person was in the controlled environment of the mental health facility. The Tribunal determined that it was not appropriate to appoint MM with authority for the discharge planning for the represented person. There was doubt whether MM's proposal for care of the represented person was workable. This, together with an apparent lack of recognition of the significance of the represented person's cognitive impairments on his functioning and need for care, meant there was a need for an independent guardian to monitor and oversee arrangements for the represented person, including where he was to live and whether he was to travel.

Costs application

Immediately following the hearing on 7 January 2011, the solicitor for MM indicated that a costs order would be sought pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) (GA Act) for MM's costs to be paid from the represented person's estate. Written submissions were invited and received on 31 January 2011.

Legislation

The determination of costs applications is at the discretion of the Tribunal within the framework of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and the enabling Act, in this case, the GA Act. The relevant provisions are s 87 of the SAT Act which provides:
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
…
and s 16(4) of the GA Act which provides:
The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.

Submissions of MM for payment of his legal costs

MM submits that his legal costs of $5,302.40 for advice and representation before the Tribunal should be paid from the estate of the represented person. He contends that the represented person should pay his costs, because the question of who should be appointed the administrator and the guardian for the represented person was complicated because of his status as an involuntary patient. It is also argued that the applications to the Tribunal had been made without the knowledge of MM.
The social worker's application is said to contain factual inaccuracies and her proposals for the appointments of the Public Trustee and the Public Advocate were against the wishes of the represented person, due to his acute mistrust of government. It is submitted that these factors justified MM obtaining legal assistance with a view to ensuring that his father's interests and wishes were accurately and clearly enunciated at the hearing. It is said that the represented person expressly asked MM to engage legal representation to assist him to secure his release from hospital detention, and the issue of guardianship was intertwined with this. It is argued that as the represented person has a significant estate, the recovery of costs by MM will not present a financial burden for his father.
The Tribunal has a wide discretion under s 16(4) of the GA Act to award costs. However, as has previously been said, s 16(4) of the GA Act should not be read independently of the costs regime set out in the SAT Act. As seen above, the starting position in s 87(1) of the SAT Act is that parties bear their own costs. The GA Act contained a similar provision, until repealed, when the guardianship and administration jurisdiction was brought into the Tribunal in 2005 (see M [2008] WASAT 262 (S) at [66]).
The entitlement to costs under s 16(4) of the GA Act has been treated more narrowly than simply the recognition that an applicant applying for costs has acted in the best interests of the proposed or represented person, since it has been recognised that it is 'not a difficult threshold to cross' (see LC and JS [2007] WASAT 127).
Seen in this way, something more than merely acting in the best interests of the represented person is required for a costs order to be made. Cases which have attracted payments of costs have been cases where legal advice and representation has been obtained which led to the protection of the interests of the represented person following the application being made. For example, in the case of IO Ex Parte VK [2008] WASAT 8 (IO), where the Tribunal ordered that some of the costs of the applicant daughter be paid from her father's estate, because the application might not have been made but for the legal advice and assistance obtained by her. The Tribunal found that because of the conflict in the evidence about the capacity of the proposed represented person, the legal complexity in relation to a transfer of his land from him to another daughter who held his enduring power of attorney (which was the reason for the applications being made), allegations of financial abuse and the conflict between his daughters, legal representation was warranted and a costs order from the estate of the represented person should be made in favour of the applicant.
In this case, there was no conflict between the social worker applicant and MM about the incapacity of the represented person to make decisions about his person or about his estate. Similarly, there was also no conflict about the need for orders, although MM objected to the timing of the original applications. There was dispute about who should be appointed.
Relevant to the consideration of the exercise of the discretion in s 16(4) of the GA Act is that MM was not the original applicant. The need for the appointment of a guardian and administrator for the represented person had been identified by the treating team who brought the original applications. At the time of the applications, the represented person was detained under the MH Act because he was considered a risk to himself and others.
MM acknowledged in the hearing that he considered his father a risk because he drove unlicensed, with impaired eyesight, and suffered a mental illness. MM said he had considered his father to be a dangerous driver for over 10 years. Further, MM said he was aware that the represented person had had motor vehicle accidents in the past and had been pursued by insurance companies in respect of property damage following traffic accidents in which he had been involved. MM said he had not acted in relation to these concerns as he did not have authority to act. It is not apparent what, if any, steps he took to address these issues. It may be that the applications might not have been brought and the protective orders made, but for the intervention of the social worker from the treating team. It is not possible to say whether MM would have made applications, had the applications not been brought by the social worker. However, considering the correspondence before the Tribunal, it appears more likely than not that, had the represented person been discharged from involuntary status on 14 December 2011, he would have left Western Australia on 15 December 2010 with the assistance of MM. It is unclear whether MM was aware of the reported potential risks of air travel for his father, both to his mental state and physical health, but it seems unlikely, since it appears that no plans were made to accompany the represented person on the planned flight.
Further, properly advised, MM would have understood that it was not necessary to make his crossapplications, thereby exposing himself to additional costs (see LC and JS). As applications had already been filed with the Tribunal, advocacy to bring the hearing forward to a date prior to a planned departure of the represented person to return to the United States could have occurred without his applications being filed. That the applications were made for this reason may indicate that the effect of the represented person's involuntary status under the MH Act had not been fully considered and that a guardian, whoever was appointed in that role, would not have the authority to change the decision of the treating psychiatrist to maintain the represented person's involuntary status.
The Tribunal does not accept that MM needed legal representation and assistance to convey his proposal for his appointment and his father's wishes to the Tribunal. The Tribunal is bound to ascertain the wishes of the represented person (s 4(2)(f) of the GA Act) and the transcript reflects that this issue was the first canvassed in the hearing.
Nor does the Tribunal accept that MM required legal representation to make his submissions to the Tribunal. In the hearing, MM spoke largely on his own behalf. In contrast to the applicant in IO, MM presented as an educated and articulate individual who was well able to present his case, which he did in the course of the hearing.
In response to the contention that the social worker made the applications without notice to MM, even if it was the case, this does not support legal costs being recovered by MM. There can hardly be anything controversial in a social worker from a facility for elderly persons with mental health diagnoses bringing applications to the Tribunal. Numerous applications of this kind are made to the Tribunal each year. Nor is there anything unusual in a family member proposing himself or herself for appointment rather than the Public Advocate or Public Trustee, as proposed by a professional applicant. MM did not oppose the applications at the hearing but took issue with the timing of the applications, that is, prior to the completion of the assessments being conducted at the facility. This position is adopted despite his acknowledgement that his father has a cognitive impairment of longstanding, that his father was a risk to himself and others because of his driving, and had been so for over 10 years.
At the hearing, the applicant social worker alleged that MM had not been frank with her about the planned travel of the represented person to return to the United States. Dr N, a member of the treating team who attended the hearing, gave evidence that air travel was a risk to the represented person's health due to his medical problems.
Both the applicant social worker and MM maintain that each withheld information from the other. MM says that the social worker made the applications to the Tribunal without further consultation with him, and the social worker says that the planned travel of the represented person was not disclosed by MM. Each denies the other's allegations.
In relation to the conflict in the evidence regarding the nondisclosure of the planned travel, I prefer the social worker's evidence that MM did not disclose this information to her (either deliberately or inadvertently). I think this inference can be drawn from MM's lack of appreciation that his father's health might be a risk from air travel. It is likely that he would have been told this if he had advised of the planned departure date.
It was not necessary to decide this issue in determining the substantive applications, since what was relevant was the deterioration in the working relationship between the treating team and MM, and the impracticality of his proposals for the care of the represented person following his discharge from hospital. But MM puts the matter in issue because of his submission that he acted in the best interests of the represented person in respect of the proceedings to support his claim for costs to be paid from the represented person's estate.
It does not follow that since MM was appointed administrator and limited guardian, he should recover the legal costs expended. This position is inconsistent with the 'no costs' provisions of the SAT Act generally (see, for example, the discussion in Pearce & Anor and Germain [2007] WASAT 291 (S)).
Finally, the submission that the represented person asked MM to engage legal representation to assist him to be released from detention is a distinct issue. Section 16(4) costs can only relate to 'costs of the proceedings', that is, the proceedings before the Tribunal.
If legal costs were incurred by the represented person for his representation before the Mental Health Review Board on 14 December 2011, an administrator may pay that debt as a debt owed by the estate of the represented person. The costs in respect of that proceeding were incurred prior to the declaration being made, pursuant to s 64 of the GA Act, that the represented person was a person in need of an administrator of his estate, following which s 77(1)(a) of the GA Act applies, which provides that the represented person is incapable of entering into any contract.
In conclusion, for the reasons given, the facts of this case do not support an order for the legal costs of MM to be paid from the represented person's estate.

Orders

The application for a costs order is dismissed.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER