Re PD
[2008] WASAT 13
•25 JANUARY 2008
RE PD [2008] WASAT 13
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 13 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1973/2007 | 27 NOVEMBER 2007 | |
| Coram: | MS F CHILD (MEMBER) | 24/01/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Direction given to the administrator | ||
| B | |||
| PDF Version |
| Parties: | Perpetual Trustees Ltd WA PD |
Catchwords: | Guardianship and administration Application by plenary administrator for directions Represented person with acquired brain damage living apart from spouse Proposal to apply to Family Court for property settlement Need for appointment of case guardian to make an application |
Legislation: | Family Law Rules 2004 (Cth), r 6.08, r 6.09, r 6.10(2) Guardianship and Administration Act 1990 (WA), s 69, s 71, s 74 State Administrative Tribunal Act 2004 (WA), s 76 |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE PD [2008] WASAT 13 MEMBER : MS F CHILD (MEMBER) HEARD : 27 NOVEMBER 2007 DELIVERED : 25 JANUARY 2008 FILE NO/S : GAA 1973 of 2007 EX PARTE
Perpetual Trustees Ltd WA
Applicant
AND
PD
Represented Person
Catchwords:
Guardianship and administration - Application by plenary administrator for directions - Represented person with acquired brain damage living apart from spouse - Proposal to apply to Family Court for property settlement - Need for appointment of case guardian to make an application
Legislation:
Family Law Rules 2004 (Cth), r 6.08, r 6.09, r 6.10(2)
Guardianship and Administration Act 1990 (WA), s 69, s 71, s 74
(Page 2)
State Administrative Tribunal Act 2004 (WA), s 76
Result:
Direction given to the administrator
Category: B
Representation:
Counsel:
Applicant : Mr M Fatharly
Represented Person : N/A
Solicitors:
Applicant : Kott Gunning
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The administrator of the estate of a woman with an acquired brain injury applied to the State Administrative Tribunal for directions regarding the administration of her estate. The administrator, a trustee company, sought directions to enable it to apply to the Family Court of Western Australia for the appointment of a case guardian to act in relation to property settlement proceedings on behalf of the woman.
2 The woman had lived apart from her spouse for some years and had expressed the consistent wish to be divorced from him.
3 The Public Advocate is the plenary guardian of the woman and has taken the decision that divorce proceedings will not be initiated. The administrator submitted that it was in the financial best interests of the woman that the administrator consider proceedings to settle the property interests of the woman held jointly with her spouse because of the circumstances of the woman and the property.
4 Directions were sought as the legal advice to the administrator was that it could not apply to conduct the legal proceedings in the Family Court as administrator because, although having plenary powers, the appointed administrator is a company and the Family Court Rules require that a person under disability act by case guardian and that a case guardian is an individual. It was proposed that a senior officer of the company be authorised to apply for appointment as a case guardian.
5 The spouse and sons of the woman attended the hearing and opposed the direction being given. The spouse argued that the woman had not contributed financially to the property and so the house was his and should not be sold. The daughter of the woman supported the proposed action being taken as this had been the expressed wish of her mother since 2004. The daughter asserted that her mother had financially contributed to the property in particular had paid the balance of the mortgage owing from the proceeds of a compensation payout she had received for the personal injuries she had suffered.
6 The Tribunal noted that the question of the contributions made by the woman and her spouse were a question for negotiation between the parties (including the administrator on behalf of the woman) and if agreement could not be reached, for the Family Court to determine.
(Page 4)
7 The Tribunal gave the direction sought by the administrator as it determined that, by making the direction, it was enabling the administrator to exercise a power that it had as a plenary administrator.
Reasons of the Tribunal
8 These reasons relate to a determination of an application for directions by an administrator under s 74 of the Guardianship and Administration Act1990 (WA) (GA Act). The application was heard on 27 November 2007 and the decision reserved. The reasons are provided pursuant to s 76 of the State Administrative Tribunal Act2004 (WA).
Hearing
9 Notice of the hearing of the application for directions was given to the plenary guardian of the represented person, the Public Advocate, the represented person, her spouse, her sons, and her daughter and son-in-law. The spouse and sons attended the hearing, as did the daughter by telephone. The guardian advised the Tribunal that it was not in the best interests of the represented person that she attend the hearing. The guardian did not attend.
Background
10 The background of the represented person's circumstances are set out in the reasons of the Guardianship and Administration Board (the Board), delivered 7 April 2004, which relate to a decision of the Board to appoint the Public Advocate as plenary guardian of the represented person. That order is due for review in January 2009 (Unreported decision of the Board; File No 980575).
11 The reasons of the Board refer to a brain injury suffered by the represented person as a result of surgery in 1981 which caused her to suffer severe short-term memory problems and later epilepsy.
12 The reasons refer to the involvement of the Public Advocate in the investigation of concerns about the living environment of the represented person and lack of contact with her daughter in 1993.
13 On an application by the daughter in 1998, the Public Advocate was appointed limited guardian to facilitate contact between the represented person and her daughter as the spouse was preventing contact between them.
(Page 5)
14 In 2000, the spouse applied for his appointment as administrator of the estate of the represented person. The Board appointed Perpetual Trustees as the plenary administrator of the estate of the represented person.
15 Perpetual Trustees had, from 1993, managed some aspects of the represented person's finances, including the investment of the proceeds of a personal injury claim, as the donee of an enduring power of attorney executed by the represented person. When the administration order was made the enduring power of attorney was revoked by the Board.
16 In 2000, the Board confirmed the appointment of the Public Advocate as limited guardian.
17 On review of the order in 2004, the Public Advocate was appointed plenary guardian, among other things, to give effect to what the Board found was the expressed wish of the represented person to live apart from her husband.
18 The represented person has been a permanent resident in a hostel since June 2004.
Application for Directions
19 Counsel for the administrator states that Perpetual Trustees, as the plenary administrator (the administrator) of the represented person's affairs, has formed the view that it is appropriate in her financial interests to have a property settlement order made in the Family Court to realise her share of the home and to divide other marital assets.
20 Counsel notes that the represented person is currently the joint owner of a house with her spouse and in order to take steps to obtain orders for a property settlement, a case guardian needs to be appointed in order to commence the proceedings on behalf of the represented person as she is incapable of making that application for herself.
21 Although the administrator accepts that as the plenary administrator it has full powers to act for the represented person in relation to her estate, because the administrator is a corporate entity it cannot be appointed a case guardian to bring the application because that appointment can only be made to an individual. A senior employee of the administrator is proposed by the administrator to be authorised to seek appointment as a case guardian for the purpose of bringing the proceedings. The employee proposed holds the position of manager of Trusts of the parent company
(Page 6)
- of the administrator which is located in Sydney. In material put before the Tribunal regarding the proposed appointee, his role as manager of Trusts is described to include the supervision of trust managers managing the affairs of persons under trust or as attorney and including persons who have lost capacity, including the "sign-off on higher level decisions".
22 During the hearing, counsel submitted a copy of correspondence to the administrator from the Public Advocate's office which advises that the guardian had formed the view, based on professional advice, that the represented person lacks capacity to understand the effect of divorce and to make the decision to divorce her husband, despite her expressed wishes that she do so. The Public Advocate has determined that she will therefore not seek a divorce on behalf of the represented person. As the guardian did not attend, it was not possible to explore this issue further. Counsel submits that the property settlement orders proposed can be sought without an application for a divorce.
23 In respect of the property of the represented person orders, counsel notes that the property of the represented person is valued at $534 000, of which approximately $265 000 is her share of a residence which is jointly owned with her husband. Her assets include $70 000, which is held by way of a bond for accommodation in the residence where she lives. The administrator has for investment approximately $189 500 available for investments to generate income to meet her needs.
24 It is submitted that since the represented person is living in a nursing home, there is no need for her to have a main residence. It is said that the administrator has taken advice and considers that it is appropriate to seek orders to settle the marital property. This followed consideration of the asset position of the represented person following a strategic review of the investment portfolio in January 2006. The administrator determined that at that time, after taking out tax, income generated together with the represented person's pension entitlements were not providing an adequate level of income to meet her needs without regular capital draw-downs. At that time, those draw-downs were in the order of about $5 500 per annum.
25 Counsel submits on behalf of the administrator that the total asset pool of the represented person is being depleted, and over time, it will be reduced to a much lower level because of the lack of income being generated. In this regard, although it is said the property has had some capital growth, the property itself does not produce any income for the represented person which would assist with her ongoing needs. Given that as no income was currently being generated for the represented
(Page 7)
- person, the administrator had a duty to protect her interests in seeking to make the application for a property settlement.
26 The spouse of the represented person opposes the order being made by the Tribunal to authorise the administrator to act as proposed, as he states that the represented person has not contributed to the property and that, as he was the only wage earner during the period that they have owned the property, he is "claiming the complete property" (T: 13). He opposes the property being sold on the basis that it is his property and he questions why the administrator would sell it. He also opposes the orders as he states that the Public Advocate did not have the authority to remove the represented person from the property when he says that decision was made in 2001.
27 The spouse states that he has an Australian pension, a part UK pension and asserts that his income has been reduced because of his wife's assets. He also states that he has paid all the bills, including the rates and costs associated with the property. Counsel submits that this is not correct and that the represented person meets (and has met in the past) some costs of the property. The spouse states he sold the household furniture (presumably owned by both the represented person and the spouse) to his sons who live in the property with him.
28 Both sons of the represented person, who live with their father and are both fully employed, oppose the sale of the property. One son asserts that he and the spouse have paid for renovations (including installation of roller shutters and a fence).
29 The daughter of the represented person supports property settlement action being taken by the administrator and considers that there have been delays in dealing with the issue on the part of both the guardian and the administrator, as she says the represented person has been expressing her wish to deal with the property for some time, at least from 2004.
30 The daughter states that her mother has been in care since 2004, but was previously admitted to a nursing home in 2001 and removed by the spouse in 2003 to limit contact with her. She asserts that her mother's best interests have not been considered by the spouse.
31 The daughter concedes that the property has been the family home since 1974 but notes that since the represented person contributed financially to the property, paying out the balance of the mortgage in 1985 with funds received as compensation for her personal injuries, she should now receive a benefit from the property.
(Page 8)
32 In response to concerns expressed by the sons and the spouse of the represented person, counsel for the administrator states that there has been some consideration by the administrator of the impact on the pension entitlements and the effect on other family members, and a final decision had not been made to commence the action.
33 He notes that the financial contributions to the pool of marital assets by each of the parties will be considered by the Family Court. He notes that a proposal could be put to the administrator by the spouse and the sons to buy out the represented person's interest.
34 Following the hearing and consideration of the commentary regarding the appointment of a case guardian, the Tribunal wrote to the representatives of the administrator raising an issue about the appointment of a case guardian from outside Western Australia, as was proposed in the original application. In response it was agreed on behalf of the administrator that it was appropriate to leave the nomination of the proposed appointee with the administrator rather than name that person in the order of the Tribunal.
Legislation
35 The application for directions is made under s 74 of the GA Act, which provides:
"(1) Any administrator may apply to the State Administrative Tribunal for directions concerning any property forming part of the estate of the represented person, or the management or administration of such property, or the performance of any function, and the Tribunal may on any such application give to the administrator any direction not inconsistent with this Act.
(2) An administrator shall comply with any direction given to him under subsection (1).
…"
36 In this case, the administrator of the represented person has plenary powers. The effect of this is that the administrator may perform, or refrain from performing, in relation to the estate of the represented person, any function that the represented person could herself perform, or refrain from performing, if she were of full legal capacity (s 71(2)). Further, an action taken, decision made, consent given or other thing done by an
(Page 9)
- administrator in the performance of the functions vested in the administrator has effect as if it had been taken, made, given or done by the represented person and she were of full legal capacity (s 69).
37 Specified functions which may be vested in a limited administrator (and by implication included in the powers of a plenary administrator) are set out in Part A of Schedule 2 of the GA Act (s 71(3)). Relevantly, for this matter at cl 15 is the function:
"To bring, and defend, actions, suits and other legal proceedings in the name of the represented person."
38 Although, as noted, the administrator has plenary powers it is submitted for the administrator that a direction is required to authorise an employee of the administrator to act as case guardian because of operation of the Family Law Rules 2004 (Cth) In respect of the rules relating to case guardians the Family Law Rules2004 (Cth) are adopted by r12 of the Family Court Rules1998 (WA). which provide that a person with disability may start and conduct a proceeding only by a case guardian (r 6.08).
39 Eligibility for appointment as a case guardian is set out at r 6.09:
"A person may be a case guardian if the person:
(a) is an adult;
(b) has no interest in the case that is adverse to the interest of the person needing the case guardian;
(c) can fairly and competently conduct the case for the person needing the case guardian; and
(d) has consented to act as the case guardian."
40 By r 6.10(2), a person who is a manager of the affairs (including trustee or guardian) of a party is taken to be appointed as the case guardian if there is compliance with notice and other requirements. However, although a "person" includes a companyActs Interpretation Act 1901 the reference to "an adult" in r 6.08 suggests a natural person must act as the case guardian.
(Page 10)
Decision
41 It is clear by s 71 of the GA Act that a plenary administrator appointed under the Act has the power to make the decision to commence proceedings for property settlement on behalf of the represented person. However, because in this case the administrator is a company, the operation of the Family Court Rules appear to prevent the commencement of the proceedings without a direction or further order of the Tribunal authorising the administrator to nominate an individual to apply to the Family Court for appointment as case guardian to initiate the action.
42 The administrator asserts that the interests of the represented person are best served by bringing an action for property settlement. The decision in this regard is ultimately for the administrator, having regard to the obligations of an administrator to act in the best interests of the represented person, which will include a consideration of her wishes, the risks and benefits of the proposed action, as with any litigation, and the potential costs.
43 The direction of the Tribunal sought by the administrator will only facilitate the performance of a function already vested in the administrator. For this reason, the Tribunal will make the direction sought in the following terms:
Order
The administrator is directed to investigate and to determine if an application for property settlement of the marital property of the represented person should be made in the Family Court of Western Australia and if considered appropriate to do so, the administrator may authorise an employee of Perpetual Limited or Perpetual Trustees WA Ltd to apply for appointment as a case guardian to bring that application and to take all necessary steps (including to take advice and to engage lawyers) to conclude family law matters in the best financial interest of the represented person.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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