| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE KRL [2011] WASAT 172 MEMBER : MS F CHILD (MEMBER) HEARD : 17 AUGUST 2011 DELIVERED : 17 OCTOBER 2011 FILE NO/S : GAA 2486 of 2011 EX PARTE Catchwords: Guardianship and administration - Application by an administrator for payment as a carer - Remuneration Legislation: Guardianship and Administration Act 1990 (WA), s 50, s 51(2)(c), s 51(2)(e), s 72, s 74(1), s 76, s 117, s 117(2), s 118, Sch 2 Pt A, Pt 6 Result: Application dismissed
Remuneration order varied
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Category: B
Representation: Counsel:
Solicitors:
Case(s) referred to in decision(s):
KRL [2010] WASAT 187
PG and KRL [2010] WASAT 30
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The administrator of an estate sought payment for carer duties she performed for the represented person, in addition to the remuneration she received as the administrator. 2 It was argued that there was no one else who could perform the personal tasks for the represented person, and it was consistent with the expressed wishes of the represented person that the administrator be paid for her time to undertake them. The represented person’s appointed guardian, the Public Advocate, supported the provision of the services to the represented person and the payment of the administrator for this purpose. 3 The Public Trustee, in submissions sought by the Tribunal, did not oppose the payment for the services but contended there was a conflict if the administrator both set the payment rate and paid herself. 4 The Tribunal decided that the personal services performed by the administrator were not functions performed as part of the administration of the estate and therefore the administrator could not be remunerated for them under the remuneration provision of the Guardianship and Administration Act 1990 (WA). 5 The Tribunal decided that the question of the services to which the represented person should have access was a decision for the appointed guardian and not the Tribunal. 6 In respect of the remuneration of the administrator previously ordered, the Tribunal varied the hours to be remunerated to take account of tasks, which although identified by the administrator as carer duties, in fact involved administration of the estate.
Background 7 In November 2009 the Tribunal appointed the Public Advocate as the guardian of the represented person. That order was later reviewed and on 18 August 2010 the Public Advocate was confirmed as guardian with the following functions: • To decide where the represented person is to live, whether permanently or temporarily. (Page 4)
• To decide with whom the represented person is to live. • To consent to treatment or health care of the represented person. • To determine what contact, if any, the represented person should have with others and the extent of that contact. • To determine the services to which the represented person should have access. 8 The guardianship order is to be reviewed by 18 August 2012. 9 An administration order was made on 18 August 2010 appointing PG (the current administrator) as the plenary administrator of the estate of the represented person. That order was reviewed on 21 December 2010 and confirmed. The order was again reviewed on 1 June 2011 and the appointment of the administrator was confirmed for a period of five years. 10 Some of the background to these matters is set out in PG and KRL [2010] WASAT 30 and later in KRL [2010] WASAT 187 (KRL). The later decision deals with the appointment of the administrator and the setting of the rate of remuneration of the administrator. 11 The administrator is remunerated pursuant to an order made on 17 December 2010, in the following terms; 1) For the period 14 June 2010 to 18 August 2010, $2,990 (being 3.5 hours part of June, six hours for July and two hours for part of August 2010). 2) For the period 18 August 2010 to 18 August 2012, $12,480 per annum with an additional payment of $1,511 per annum while the house property of the represented person is retained as an asset of the estate. 12 The rate of remuneration fixed is $260 per hour for four hours per month with an additional amount of $1,511 per annum for management of the house property of the represented person. This figure is based on the figure charged by the Public Trustee for similar work. 13 The administration order made on 1 June 2011 authorises the administrator, pursuant to s 71(5) of the Guardianship and Administration Act 1990 (WA) (GA Act), to gift personal and household effects of the represented person to friends and relatives of the represented person in consultation with her. (Page 5)
The application for directions 14 The appointed administrator seeks payment for caring duties she performs for the represented person in addition to the functions she performs as administrator. 15 The recent review of the administration order was set at an earlier date as the administrator had indicated at the previous hearing that she wanted to consider her position, due to the rate of remuneration for the administration of the estate as determined by the Tribunal being less than the amount sought. At the review hearing the administrator confirmed her consent to her reappointment. 16 The representative of the Public Trustee attending the review hearing reported that the opinion of the Public Trustee’s legal officer was that there was a conflict of interest in the administrator paying herself as a carer, and that she should seek directions from the Tribunal. 17 As noted, the Tribunal had in 2010 set a rate of remuneration for the administrator: see KRL. That decision dealt in part with a proposal by the administrator for payment for carer duties performed. The Tribunal had determined that such an order could not be made. 18 On 21 June 2011 the administrator submitted a written submission regarding a proposal that she be paid for caring duties. 19 The Tribunal treated the proposal as an application for directions pursuant to s 74(1) of the (GA Act). 20 The Tribunal decided that the matter should be determined on the papers, without a further hearing, as hearings before the Tribunal reportedly cause great distress to the represented person. 21 Written submissions were sought from the Public Advocate as guardian of the represented person, the Public Trustee, the administrator, a longterm friend of the represented person who had attended the hearing, the niece of the represented person who had been the original applicant and one of the former donees of the represented person’s enduring power of attorney. 22 The Public Advocate and Public Trustee filed submissions with the Tribunal and an additional submission was received from another friend of the represented person who expressed concern that the represented person had become distressed having received a letter from the Tribunal regarding the matter. The friend said that it would be in the (Page 6)
best interests of the represented person if 'totally neutral parties looked after [the represented person’s] affairs' and proposed that the Public Trustee be appointed. The friend asked that the represented person not receive letters and that the appointed guardian handle any correspondence from the Tribunal.
Legislation 23 Section 117 of the GA Act provides for the remuneration of an appointed administrator. The section states: (1) The State Administrative Tribunal may fix remuneration or a rate of remuneration and order that the same be paid to an administrator out of the estate of the represented person if the Tribunal considers that, because of the size or complexity of the estate or both, remuneration should be paid to the administrator. (2) A guardian, and except as provided in subsection (1) an administrator, shall not receive remuneration for services rendered to the represented person. (3) Nothing in this section - (4) Subject to subsection (3)(a), a corporate trustee shall only be entitled to commission in respect of the capital of the estate of a represented person to the extent that the State Administrative Tribunal expressly allows. 24 Section 118 of the GA Act provides for the recovery of expenses of an administrator. The section states: (1) An administrator may reimburse himself for or pay out of the estate of the represented person all expenses reasonably incurred in or about the performance of his functions. (2) A guardian is entitled to receive from the represented person such expenses as are reasonably incurred in or about the performance of his functions and are allowed by the State Administrative Tribunal, either generally or in any particular case. (3) If expenses to which a guardian is entitled under subsection (2) are not paid, he may recover them as a debt due in a court of competent jurisdiction. (Page 7)
25 Section 72 of the GA Act provides: Material before the Tribunal
The administrator’s proposal 26 In the proposal for remuneration for caring duties filed in June 2011, the administrator submits that old friends and family members of the represented person cannot assist with various necessary personal tasks for the represented person and explains why she should be paid for her time to undertake them. 27 The administrator proposes that she be remunerated for the following: • appointments to be made (and changed) for [the represented person]; • assisting the represented person to understand what some of her doctors and dentist have said about her health; • helping her understand what items are on her pharmacy list; • running around for spectacles etc; • assisting her with some shopping [at her request]; • taking her out occasionally for breakfast … and for coffee …; • helping her with clothes shopping; • taking things from her house to her (soap, tissues she will not purchase these items since she has already this at home and she does not want the items brought in bulk to her room at [location deleted]); • being a go between with [location deleted] (over loss of clothing, injections she may or may not have had, food items and so on); (Page 8)
• filling in forms; • receiving telephone calls from friends (advising me that [the represented person] needs this and that); • coordinating ACROD, use of equipment (Sir Charles Gairdner Hospital) and so on; • buying Christmas presents; • reporting to [the delegated guardian], the Public Advocate. 28 In her written submission the administrator estimates she spends an 'hour a week on average on carer duties'. She seeks payment for the period from 18 June 2010 to 31 December 2010 at two hours per week and one hour per week from January 2011 to June 2011, the time of the submission.
The Public Advocate's submissions 29 The delegated guardian of the Public Advocate supports the proposal that the administrator be remunerated for care services because of the 'unique circumstances' of the represented person 'her lack of trust of people and her need for privacy[which] limits the options available for her to secure services from another agency'. The guardian notes that the niece of the represented person previously played the role of arranging medical and personal appointments as the service is not provided at the residential care facility in which the represented person lives. The represented person is reported to have no other family member in Western Australia to take on the role. 30 The guardian reports that she met with the represented person and the administrator to discuss who the represented person wished to make her medical and personal appointments. For privacy reasons, the represented person is reported not to want any of her friends to perform this role and is reported as stating that she trusts the administrator with making her medical and personal appointments for her and wants to reimburse her for this. 31 The guardian notes that the administrator has 'offered to provide the service to the represented person at less than half her professional rate and proposes to charge the represented person $130 per hour, originally for two hours per week and then for one hour per week. The guardian submits that given the represented person's wish to pack up her belongings, sell her house and give away her things, along with her (Page 9)
wishes to be consulted and included in the process, that it is reasonable to allow six months for this process to occur at two hours per week. 32 Once the represented person has completed this process, the guardian submits that it is reasonable for the administrator to be remunerated for one hour per week to make medical appointments and medical arrangements. The Public Advocate recommends that the administrator should continue to make medical and personal appointments for the represented person and that she be remunerated for her time at $130 per hour for two hours per week for six months, followed by remuneration to provide this service for one hour per week.
The Public Trustee's submissions 33 The Public Trustee submits that the Tribunal can make an order for 'reimbursement for caring duties' performed by the appointed administrator and that payment for caring duties could be covered by s 117 or s 118 of the GA Act. The submission notes that if these caring duties were to be performed by a third party, other than the administrator, that the administrator would be within her power to incur the expenditure if she thought that it was in the best interests of the represented person to do so. 34 The issue taken by the Public Trustee with the proposal is that because the administrator proposes she be paid for the caring services, the administrator could be seen to have a conflict of interest when determining the rates to be paid. 35 The Public Trustee submits that some of the identified duties, including reporting to the Public Advocate as guardian, receiving telephone calls from friends, advising of the represented person's needs and being a gobetween with the residential care facility and filling in forms, could be included in tasks performed by an administrator. However, the Public Trustee contends that the other duties in the administrator’s proposal would not normally fall within the duties an administrator would be expected to perform (especially a professional administrator). 36 The Public Trustee submits that the represented person has a substantial estate and can afford the proposed costs of 'care services', and submits the following factors should be considered. (Page 10)
Are there any viable alternatives? 37 The Public Trustee notes that the administrator has advised that there is no immediate family of the represented person living in Perth, and that the administrator contends that the represented person 'needs to be protected from input from friends and other family'. Based on this information, the Public Trustee submits that there may not be viable alternatives to obtain the services other than from the administrator.
What is the reasonable rate to pay for these services? 38 The Public Trustee submits that the cost of providing 'care services’ by care agencies is usually in the range of $30 $35 per hour. The charge of $130 per hour proposed by the administrator is therefore well outside the 'care industry' norm. 39 The Public Trustee submits that the represented person will benefit from the fact that she has had a long-term relationship with the administrator and appears to trust her and enjoy her company. If another party were to be employed to provide the services, the administrator would need to be involved in some form of liaison role. 40 The Public Trustee further submits that if the administrator's request to charge for care services is authorised that the Tribunal should make clear whether the rate is inclusive or exclusive of GST. 41 The Public Trustee also submits that to avoid having to deal with issues surrounding employer/employee relationships that the 'care services' charges are charged to the represented person via the administrator's accounting firm. 42 In summary, the Public Trustee does not oppose the administrator being paid for providing care services to the represented person. However, in light of the submission that the proposed rate is well outside the industry norm, the Public Trustee requests the Tribunal specify the hours per week for which the administrator may charge.
Reasons 43 As noted above,the previous decision of the Tribunal in KRL dealt in part with the decision to order remuneration of the administrator. Remuneration was ordered on the basis that the represented person's estate was sufficiently large enough to warrant it (s 117 of the GA Act). At [78] of the decision the Tribunal accepted the submission of the administrator that the estate itself was not complex. (Page 11)
44 The current proposal for payment of the administrator for duties other than the administration of the estate is substantially the same as the one made in 2010 and was dealt with in the earlier decision. 45 At [83] of the decision, it was noted that remuneration of an administrator can only be for the administration of the estate of the represented person. It is noted that administration of the estate largely involves financial decisionmaking. Reference was made to Sch 2 Pt A of the GA Act. Guidance as to the role performed by an administrator is also found throughout Pt 6 of the GA Act, which deals with administration orders, as reference is continually made to the 'estate' of the represented person. Section 76 is also relevant in understanding the role of the administrator; that section states that the administrator may employ agents rather than acting personally. Although the category of persons is not closed, the list given indicates that the business conducted or transactions undertaken by agents on behalf of the administrator relate to the financial, business or legal affairs of the represented person. 46 The decision refers at [84] to a lower rate proposed to be charged at that time by the administrator for personal services and shopping. The Tribunal found that these services did not relate to the financial management or administration of the estate and cannot therefore be the subject of an order for remuneration. 47 The current proposal by the administrator for payment for carer services provided to the represented person is substantially in the same terms as her earlier proposal. Other than the tasks identified by the Public Trustee and accepted as those which might be performed by the administrator, the administrator cannot be remunerated for the carer services. The carer services, although performed by the administrator, do not involve administration of the estate. They are simply performed by the same person. As such, the Tribunal cannot order remuneration for them pursuant to s 117; nor could payment be treated as reimbursement of expenses of the administrator pursuant to s 118 of the GA Act as the administrator seeks payment for her time and not the recovery of expenses incurred. 48 Further, some services identified by the administrator such as 'assisting her to understand what some of her doctors and dentists have said about her health' and discussing with the facility 'injections she may or may not have had' may, in fact, be part of the guardian's role. See s 51(2)(c) and s 51(2)(e) of the GA Act. The GA Act provides that a guardian cannot be remunerated (s 117(2)). (Page 12)
49 In addition to the tasks identified as administrator’s functions by the Public Trustee, the disposal of the represented person’s personal property and the sale of the represented person’s house, as noted in the Public Advocate’s submission, are functions performed by the administrator in the course of administering the estate. I will return to this aspect later. 50 The Tribunal accepts the submission of the Public Trustee that the administrator is put in a position of conflict in respect of the payment to herself for services which are not within the remuneration ordered by the Tribunal. 51 The question arises as to whether there is any other provision which would enable the Tribunal to make the order sought. It might be arguable that the wide scope of s 72 of the GA Act provides such an authority. 52 Section 72 provides the Tribunal to make wide-ranging orders it thinks necessary and expedient for the proper administration of the estate of the represented person. Although the 'carer services' (as distinct from the administrator’s functions) may be necessary for the represented person, they are not necessary for the proper administration of the estate,so my view is that payment for the carer duties cannot be authorised under that section of the GA Act. 53 I consider that the better view is that the carer services provided by the administrator are a matter for the Public Advocate as the guardian, and not the Tribunal, as the guardian has the authority to determine the services to which the represented person should have access. 54 Should the guardian decide that the 'carer services' to which the administrator refers in her submission are necessary for the represented person, then as guardian she may determine that the represented person should have access to them. 55 Section 50 of the GA Act provides: An action taken, decision made, consent given or refused, document executed or thing done by a guardian in the performance of the functions vested in him has effect as if it had been taken, made, given, refused, executed or done by the represented person and he were of full legal capacity. 56 In respect of the tasks performed by the administrator of reporting to the guardian, advising of the represented person's needs, liaising with the residential care facility and filling in forms, I consider that these tasks can be performed by the administrator within the hours already remunerated, as none appear on their face to require significant additional time. However, in respect of the disposal of the represented person’s personal (Page 13)
items, especially given her expressed wish to be consulted and included in the process, I accept the guardian’s submission that it is reasonable to allow six months for this process to occur and for this period that the additional time allocated by the administrator to this task be remunerated. As these tasks are performed as part of the administration of the estate, the order for remuneration can be varied to provide for this. An additional two hours per month for a period of six months from 1 June 2011 to 1 December 2011 being the date of the order authorising the disposal of the personal property of the represented person is warranted, in addition to the four hours per month at the rate of $260 per hour previously ordered by the Tribunal. 57 For the reasons given, no order is made in respect of the carer services. Orders 58 Remuneration of the administrator is ordered in the following terms: 1. For the period 1 June 2011 to 1 December 2011, the rate of remuneration is $260 per hour (exclusive of GST) for six hours per month. 2. Thereafter, until review of the order on 1 June 2016 or further order of the Tribunal, the rate of remuneration is $260 per hour for four hours per month totaling, $12,480 per annum, (exclusive of GST) with an additional payment of $1,511 per annum (exclusive of GST) while the house property of the represented person is retained as an asset of the estate. 3 The application for directions is dismissed. |