Re: GW
[2009] WASAT 126
•24 JUNE 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: Re: GW [2009] WASAT 126
MEMBER: MS H LESLIE (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 24 JUNE 2009
FILE NO/S: GAA 1631 of 2008
BETWEEN: PW
Applicant
AND
GW
Represented Person
Catchwords:
Guardianship - Administration - Costs
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2)(a), s 16(4)
Result:
Application for costs be dismissed
Category: B
Representation:
Counsel:
Applicant: Mr C Cook
Represented Person : Selfrepresented
Solicitors:
Applicant: Aegis Legal
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Following the revoking by the Tribunal of the represented person's enduring power of attorney and the appointment of the Public Trustee as her administrator, the represented person's son who was one of two joint attorneys under her EPA and who had been the applicant in the aforementioned application, applied for the payment of his legal costs out of the estate of the represented person. The original hearing was short and essentially uncontested notwithstanding significant conflict and acrimony between the represented person's two sons. The Tribunal took the view in all the circumstances that the applicant should pay his own costs.
Applications
The application before the Tribunal for determination is an application by PW, the son of GW, the represented person, for legal costs relating to his application for the appointment of the Public Trustee as administrator for GW filed 14 July 2008. The application for costs was made by letter after the conclusion of the administration hearing, but has been treated as an application under s 16(4) of the Guardianship and Administration Act 1990 (WA) (Act).
Previous orders
That application for administration was heard on 26 August 2008 and the Tribunal appointed the Public Trustee as plenary administrator for GW for five years and made an order revoking the enduring power of attorney (EPA) made by her on 3 March 2001 in favour of her two sons jointly.
Background
The hearing was attended by GW supported by her granddaughter, M. The two sons, PW and JW, attended as did PW's solicitor.
The Tribunal had received written submissions from PW in support of his application to be appointed Administrator in view of the claimed inability of the two sons to work together in relation to the affairs of GW.
The hearing was quite short. PW's claim was that because of differences between the two brothers, the EPA was not working (and could not be made to work). He sought the appointment of the Public Trustee as an independent administrator. This position was summarised by the presiding member and, in response to preliminary questions from the presiding member, JW agreed that the EPA was not working and stated that, although he was happy to manage his mother's affairs solely if that was what was required by the Tribunal, he was not opposed to the order sought, that is, that the Public Trustee be appointed as independent administrator. Each of the brothers appeared to have issues with what had gone before and with past actions of the other but both were happy to allow the Public Trustee to manage GW's affairs and to raise any historical issues with the Public Trustee separately and for the further direction of the Tribunal to be sought in the future regarding those matters if need be.
M indicated that she was happy with this outcome.
Accordingly, in view of the absence of any contention regarding the need for orders and regarding the suggested orders, the full text of PW's submission was not tabled or debated and, with the agreement of all present, the Tribunal made orders in line with the application appointing the Public Trustee as administrator and revoking the EPA.
Criteria
Section 16(4) provides that the Tribunal:
... may, if it is satisfied that a party to proceedings has acted in the best interests of the represented person, order that such costs relative to those proceedings as the … Tribunal thinks fit be paid to that party by or out of the assets of the represented person. (Tribunal's emphasis added)
The determination of any order for costs is a matter of discretion for the Tribunal.
Findings
Having considered all aspects in this matter, the Tribunal makes the following findings.
The processes and procedures of the Tribunal are designed to permit persons to appear without legal assistance. The hearing was short. The orders sought were made effectively by agreement of all parties. The substance of the orders was not contentious. It is accepted that there is significant conflict and animosity between the two brothers. In the view of the Tribunal, each must carry some responsibility for this. It is accepted that the dynamic between the two brothers may have been such that PW wanted the support of legal advice prior to the hearing and at the hearing, however it is the Tribunal's view that in all the circumstances this is not an expense for which his mother ought be required to meet any portion of the cost. She should not be penalised financially for the deteriorated state in the relationship between her two sons and their inability to rationally discuss her affairs in line with her obvious desire under the EPA. In the view of the Tribunal, and with the greatest respect to Mr Cook, PW's legal representation, whilst it may have been of some comfort to him, had no significant effect to the benefit of GW on the conduct of the proceedings or the outcome.
Conclusion
In relation to all applications, the Tribunal is required by s 4(2)(a) of the Act to consider the best interests of the represented person.
In all the circumstances, despite PW's stated position, the Tribunal considers that the making of the order set out hereunder is in GW's best interests.
Orders
PW's application for cost is dismissed.
I certify that this and the preceding [14] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS H LESLIE, SENIOR SESSIONAL MEMBER
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