Re Ta; Ex Parte La
[2008] WASAT 90
•1 MAY 2008
RE TA; EX PARTE LA [2008] WASAT 90
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 90 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2286/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS F CHILD (MEMBER) MS C HILL (SENIOR SESSIONAL MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER) | 1/05/08 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | LA TA LS |
Catchwords: | Guardianship and administration Application for legal costs to be paid from represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) Whether the claimant for costs acted in the best interests of the represented person |
Legislation: | Guardianship and Administration Act 1990 (WA), s 16(4), s 76, s 80, s 107, s 118 State Administrative Tribunal Act 2004 (WA), s 77, s 87 |
Case References: | GD and AD [2005] WASAT 203 IO Ex parte VK [2008] WASAT 8 LC and JS [2007] WASAT 127 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE TA; EX PARTE LA [2008] WASAT 90 MEMBER : MS F CHILD (MEMBER)
- MS C HILL (SENIOR SESSIONAL MEMBER)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
LA
Applicant
AND
TA
Represented Person
LS
Interested Party
Catchwords:
Guardianship and administration Application for legal costs to be paid from represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) Whether the claimant for costs acted in the best interests of the represented person
(Page 2)
Legislation:
Guardianship and Administration Act 1990 (WA), s 16(4), s 76, s 80, s 107, s 118
State Administrative Tribunal Act 2004 (WA), s 77, s 87
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Represented Person : No appearance
Interested Party : Mr A Prime
Solicitors:
Applicant : Self-represented
Represented Person : No appearance
Interested Party : McCallum Donovan Sweeney
Case(s) referred to in decision(s):
GD and AD [2005] WASAT 203
IO Ex parte VK [2008] WASAT 8
LC and JS [2007] WASAT 127
(Page 3)
Summary of Tribunal's decision
1 Following a hearing at which the State Administrative Tribunal appointed an administrator of the estate of an elderly woman suffering dementia, the Tribunal received an application for the legal costs of a party to be paid from the woman's estate. The claim for costs was made by a daughter of the woman. The Guardianship and Administration Act 1990 (WA) provides that a party's legal costs relative to a proceeding brought under that Act, can be paid from the represented person's estate if the Tribunal is satisfied that the party acted in the best interests of the represented person.
2 Although the Tribunal found that the legal representation obtained by the parties had reduced the time required for the hearing through the development of a common position put by their representatives, it was not satisfied that the claimant for legal costs had acted in her mother's best interests sufficient to justify the payment of her legal costs from her mother's estate. The Tribunal found that it had been the daughter's conduct, as the donee of her mother's enduring power of attorney, which had brought about the need for the application to the Tribunal and the appointment of an administrator. In addition, some of the legal costs had been incurred by her prior to the application being made to the Tribunal and could not be said to be relative to those proceedings.
3 The Tribunal dismissed the application because, applying the provisions of both the Guardianship and Administration Act 1990 (WA) and the State Administrative Tribunal Act 2004 (WA), it determined that the claimant was not entitled to the payment of her legal costs.
Reasons for the Tribunal's decision
4 These reasons relate to an application for costs arising from a hearing of the State Administrative Tribunal (Tribunal) of an application for the appointment of an administrator brought under the Guardianship and Administration Act 1990 (WA) (GA Act).
5 The claimant for legal costs is one of the daughters of the woman for whom an administrator was appointed (represented person).
6 The application for costs was decided on the documents following the application being received and submissions sought from the other daughters of the represented person who had attended the hearing.
(Page 4)
- These written reasons are produced pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Background
7 An application for the appointment of an administrator of the estate of the represented person was filed with the Tribunal on 19 November 2007 by LS, one of the represented person's four daughters (for the purposes of these reasons, the applicant). The applicant asserted that her sister, LA, the claimant for her legal costs (for the purposes of these reasons, the donee), had not acted in their mother's best interests as the donee of an enduring power of attorney (EPA) executed by their mother in October 2006 (2006 EPA). The applicant said that the donee proposed to sell their mother's house and distribute the proceeds of sale to her adult children.
8 The medical evidence presented to the Tribunal is that the represented person suffers from vascular dementia and that she is not capable of managing her financial affairs. There is conflicting evidence about the capacity of the represented person to make an EPA in 2006.
9 At the time of the hearing of the application in January 2008, the represented person was a resident of a high care facility, having been admitted there in 2006.
10 Both the applicant and the donee provided written material to the Tribunal for the purposes of the original application. The Tribunal has relied on this material and the submissions made in relation to costs to determine the costs application.
11 It is common ground between the applicant and the donee that the represented person executed an EPA in 2004 (2004 EPA) which appointed the donee and the applicant jointly and severally. In her written submission to the Tribunal, the donee states that, at the time, she had felt "it was a mistake and that I wouldn't be able to work with [the applicant]". Later, in the same submission in a note dated July 2006, she states "I felt I was unable to act severally with [the applicant] being signatory on the EPA form dated 26 July 2004. This was mainly because what I considered to be [the applicant]'s inappropriate behaviour".
12 According to material before the Tribunal, a new EPA was executed by the represented person on 12 October 2006 appointing the donee solely. It appears that the 2004 EPA was not revoked by the represented person despite the inconsistency between the two documents.
(Page 5)
- Although the donee was in communication with the applicant following the execution of the 2006 EPA, including regarding the sale of the represented person's property, which the applicant opposed, she did not advise the applicant of the 2006 EPA until October 2007.
13 The applicant and her other sisters, according to the material put before the Tribunal by the donee, urged the donee to be cautious regarding the proposed sale of their mother's property. In a note by the donee dated November 2006, one sister, T, is reported as questioning whether the sale of the represented person's property might affect the represented person's pension.
14 In August 2007, it is noted again by the donee that the applicant is again said to question whether it was "wise to sell Mum's property at the end of the year". In September 2007, another sister, G, is reported as raising concerns regarding the sale of the property, and the proposal by the donee to give the proceeds of sale to each of the adult children of the represented person. The donee notes:
"[G] informed me that I will be unable to distribute the funds in this way because I wasn't the Public Trustee. She also mentioned the proceeds from the sale of the house should be held in a trust account and that, if the sale of the house eventuated then [the brother] would receive more money than he was entitled to [under the will of the represented person]. I said I would seek legal advice."
15 In October 2007, the donee records that the applicant telephoned her stating that the property could not be sold without her agreement as she was a "signatory to the enduring power of attorney".
16 Following receipt of a letter dated 8 October 2007 advising them of the existence of the 2006 EPA, solicitors for the applicant wrote to the solicitors for the donee on 7 November 2007 alerting them to concerns about the proposed sale of the property and the validity of the 2006 EPA. A report by Dr A, a consultant in geriatric psychiatry, dated 25 October 2007, which raised an issue as to whether the represented person was capable of granting the 2006 EPA, was enclosed with the letter. The letter from the solicitors and the report of Dr A, annotated by the donee, was submitted to the Tribunal.
17 In his report, Dr A assesses the mental state of the represented person and notes the execution of the 2006 EPA. The report refers to a CT scan of the represented person's brain undertaken in Royal Perth Hospital
(Page 6)
- in 2006 which indicated "atrophy with small vessel changes and dilated ventricles" and admissions to Royal Perth Hospital in April 2006 and June 2006 when the represented person was admitted when physically unwell. Dr A notes that although that he had not seen the represented person in 2006, from his review of the available evidence, he "would doubt that she was fully competent".
18 The applicant's solicitor's letter notes that Dr A recommended that an application be made to the Tribunal. Undertakings are sought that the donee will not act on the 2006 EPA until the issue of its validity is resolved and that the represented person's property be taken off the market. An option is proposed that the parties act jointly under the 2004 EPA, but raises the question whether this will be workable. A response is sought by 9 November 2007 and advises that otherwise an application will be made to the Tribunal. The relevance of the letter from the solicitors for the applicant and the enclosure of Dr A's report will be referred to later in these reasons.
19 The application for the appointment of an administrator was filed by the applicant with the Tribunal on 19 November 2007. Before the hearing of the application on 11 January 2008, the donee sought a further medical assessment of the represented person from a consultant geriatrician, Dr C.
20 Dr C's report dated 2 January 2008 notes that the represented person is able to indicate some choices but that she is clearly incapable of making decisions for herself. Dr C refers to the medical notes before him, including part of a hospital discharge summary from December 2005 and reports of assessments in November 2005. He states that, in his opinion, "it was quite possible that [the represented person] was capable of executing an enduring power of attorney in 2006". He qualifies this by stating "This view is however based on only having met [the represented person] once and access to limited clinical documentation".
21 It seems clear that although the report of Dr A was in the possession of the donee on or around 7 November 2007, she did not disclose it or refer to its contents during the medical history she gave to Dr C on 2 January 2008 and to which he refers in his report.
22 In written submissions filed by the donee with the Tribunal in January 2008, referred to earlier in these reasons, it appears the donee maintained that the property of the represented person should be sold, and includes a proposal for the investment of proceeds of sale. The information provided by the donee in her submission is not
(Page 7)
- consistent, and later notes that the proposed sale was "probably unwise in the late stages of our mother's life". It goes on to say "I now propose to keep the house as set out above in the proposed orders". However, at [12] of the same document, the donee notes "The interest earned on the money must go towards paying Mum's high care fees which will double after the sale of the house and she will lose all of her pension".
23 On 11 January 2008, following a hearing of the application for the appointment of an administrator, the Tribunal appointed an administrator of the represented person's estate, having determined that she lacked capacity to manage her financial affairs and that she was in need of an administrator of her estate. The Tribunal also ordered that the EPAs executed by the represented person in 2004 and 2006 be revoked.
24 The Tribunal appointed the former donee as the administrator of the estate consistent with the expressed wishes of the represented person and supported by the representative of the Public Advocate who had investigated the application on referral from the Tribunal. The EPA appointing her as donee was revoked because the Tribunal decided that its continued operation was not an appropriate way by which the represented person's estate should be managed. The Tribunal concluded that an administration order was needed because of doubts about the capacity of the represented person to execute the 2006 EPA, ambiguity about the 2004 EPA which had appointed both the applicant and the donee, and which had not been revoked, and the conduct of the donee when acting under the power. The particular conduct of concern to the Tribunal was the donee's failure to inform the applicant of the execution of the 2006 EPA when, in the circumstances, it was reasonable that she do so, the apparent failure to consider or make proper investigations regarding the financial implications to the represented person of the sale of the property at the time it was proposed, and finally, her proposal to distribute the proceeds of the sale of the property of the represented person. The Tribunal considered that the accountability afforded by an administration order which is not routinely provided under the provisions of an EPA was necessary to protect the interests of the represented person. It accepted submissions by the Public Advocate that, with the examination of accounts lodged with the Public Trustee by the administrator, pursuant to s 80 of the GA Act, and the donee's undertakings to keep her sisters informed, the donee was suitable for appointment as administrator.
25 The administrator was appointed with plenary powers, other than the power of sale of the property of the represented person, without further order of the Tribunal.
(Page 8)
Application for costs
26 The donee submitted to the Tribunal a claim for payment of all of her legal costs of $13,410.65 to be paid from the estate of the represented person.
27 In support of her claim, she submitted accounts from her solicitor which date from 5 October 2007, and her barrister from 8 October 2007. Fees charged include appearances by both the solicitor and the barrister at the Tribunal on 11 January 2008.
28 In a further written submission invited by the Tribunal to support her claim, the donee states that she believes her legal costs should be paid because:
1) she was not the applicant (for the appointment of an administrator);
2) legal costs incurred by an administrator in the conduct of the management of an estate can be claimed as expenses by the administrator;
3) that she acted in her mother's best interests as donee of the represented person's EPA between 3 January 2006 to 11 January 2008; and
4) by "seeking legal advice for this matter, [she] was acting in the best interests of [her] mother and not in self interest."
33 In response to an invitation by the Tribunal to make written submissions regarding the donee's claim, the Tribunal received submissions from the other daughters of the represented person. One sister, G, considers that half of the legal costs of the donee should be paid by the donee and the remaining $6,705.33 be paid from the estate of the represented person. Another sister, T, considers that payment by the represented person of $5,000 of the legal costs of the donee is acceptable. The original applicant to the proceedings, LS, opposes the payment of legal fees from the represented person's estate. The grounds of objection are set out in a letter sent from her solicitors, as follows:
"1. the solicitors for the respective parties discussed, prior to orders being made at the hearing on 11 January 2008, the issue of legal costs and it was agreed between the solicitors for the parties that neither party were [sic]
- entitled to, nor would, seek a costs order and more specifically any costs order from the estate;
- 2. the costs incurred by [the donee] were incurred prior to her appointment as Administrator and therefore are not properly costs which are claimable from the Estate; and
3. further and in any event, our client considers there was no necessity for [the donee] to engage both a solicitor and a barrister in respect of the matter."
34 Further, it is submitted that an estoppel arises with respect to the claim for costs by the donee, based on the agreement said to have been reached between the applicant and the donee prior to the hearing regarding orders they proposed the Tribunal should make for the appointment of an administrator and that no costs order would be sought by either of them.
35 Because the Tribunal has decided this application on other grounds, it is considered that there is no need to deal at length with this part of the submission or to seek further submissions from the donee.
Legislation
36 Section s 87(1) of the SAT Act provides that the starting position is that parties bear their own costs in a proceeding of the Tribunal. Because of the nature of the proceedings, most persons are unrepresented in matters brought under the GA Act. Costs orders are relatively rare in the Tribunal generally and even more so in GA Act matters.
37 However, the GA Act provides at s 16(4) that the Tribunal may, if it is satisfied that a party to proceedings commenced under the 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 Tribunal thinks fit, be paid to that party by, or out of the assets of, that person.
Factors for consideration
38 The first issue for the Tribunal to consider is whether the costs incurred are "relative to the proceeding" before it. Then, the Tribunal must consider whether the party claiming costs acted in the best interests of the represented person, and if that is the case, whether the circumstances warrant the payment of the costs of the party claiming them. Those circumstances will always include that the party claiming
(Page 10)
- costs is on notice because of s 87 of the SAT Act that the decision to engage legal representation will generally mean that the party will be liable for those costs.
39 As noted in previous decisions of the Tribunal regarding applications under s 16(4) of the GA Act, the decision in relation to costs is at the discretion of the Tribunal and dependent on the facts of any particular case. See, for example, LC and JS [2007] WASAT 127 GD and AD [2005] WASAT 203 and IO Ex parte VK [2008] WASAT 8.
40 The first factor asserted by the donee in support of her claim - that she was not the applicant - does not support the payment of her legal costs from the estate of the represented person.
41 The application made by the applicant resulted in the appointment of an administrator who will be required to account to the Public Trustee for the management of the estate and the revocation of two EPAs which, as noted, the Tribunal concluded were not an appropriate means by which the financial affairs of the represented person should be managed. The original application was brought by the sister of the donee, who obtained legal advice herself, at her own expense, and who, based on the circumstances of the represented person and presumably on the legal advice she had received about those circumstances, identified the matter as one which should be brought to the Tribunal to determine.
42 There is no doubt that both the applicant and the donee benefited from legal representation before the Tribunal in the presentations of their positions and in the prior negotiations, which resulted in an agreed position about the appointment of the donee as administrator. This had the effect of reducing the length of the hearing.
43 In respect of the second factor advanced by the donee in support of her claim, the Tribunal accepts the submission of the applicant that the legal costs of the donee were incurred prior to her appointment as administrator. As such, the provisions of s 76 of the GA Act, where an appointed administrator may employ an agent, and s 118 of the GA Act, where expenses "reasonably incurred" by an administrator in the performance of her functions may be paid from the estate, do not apply. In fact, from the accounts provided by the donee, the legal costs were, at least in part, incurred prior to the application being made to the Tribunal on 19 November 2007.
44 In respect of item 3 and item 4 of the donee's submission that she was acting in the represented person's best interests as donee from
(Page 11)
- 3 January 2006 until 11 January 2008, and when taking legal advice, she was acting in her mother's and not in self interest, the Tribunal does not accept that this was always the case, and even if this were the position, it would not bring the application for costs within the ambit of s 16(4) of the GA Act as, in our view, the operation of the EPA occurred prior to the proceedings before the Tribunal and was the reason the proceedings were brought.
45 It may be argued that the donee properly sought legal advice about her obligations as donee. In principle, legal costs incurred by a donee for such a purpose might properly be paid from the estate of the donor. An appointed administrator might pay such a claim from a former donee from the estate of the represented person.
46 In this case, the purpose of the legal advice and representation obtained by the donee went beyond advice to her about her obligations as donee. Furthermore, any consideration of this type places the donee in a difficult position since it is she who is the administrator. On her appointment, she did not seek any orders or directions of this nature from the Tribunal. Any payment made by an administrator from the estate of the represented person for such a purpose would likely be examined closely by the Public Trustee pursuant to s 80(3) of the GA Act.
47 In respect to the question of whether the claimant for costs acted in the best interests of the represented person such that her legal costs should be paid by the represented person, the Tribunal is entitled to have regard to the relevant conduct of the claimant prior to and during the proceedings before the Tribunal. In respect of her conduct as donee, the Tribunal determined that the continuation of the EPA was not in the best interests of the represented person for the reasons set out above. Further, in respect of the proceeding before the Tribunal, the failure to disclose a relevant report to Dr C for his assessment of the represented person is of concern. The assessment was sought by the donee and prepared for the purposes of the application before the Tribunal, and the donee failed to disclose medical history of the represented person in her possession relevant to that assessment and the expert evidence to be given to the Tribunal.
48 Considering her actions as donee from her written submissions, the Tribunal notes that she took the decision to sell the property of the represented person without a full examination of the financial implications of that decision, against the advice of her sisters that the sale of the property may have adverse implications for the represented person's pension entitlements and may undermine the intention of the represented
(Page 12)
- person's will. The donee appeared to pursue the decision to sell the property right up to the point that the application came before the Tribunal. In her later statements, she concedes that the decision may have been "unwise". It cannot be said that such an approach to the management of the estate meets the obligation of a donee to exercise powers "with reasonable diligence to protect the interests of the donor" as required by the GA Act.
49 It may be that the sale of the property will be required in the best interests of the represented person, and once fully examined and the implications understood, an application may be made to the Tribunal for review of the order to include that authority.
50 Had the sale proceeded and the donee distributed the proceeds of the sale to the adult children of the represented person as she proposed, she would have been in breach of her fiduciary duty to the represented person as donee of the EPA and in breach of her statutory obligations as set out in s 107 of the GA Act.
51 In relation to her failure to inform the joint donee, and later the applicant, of the execution of the 2006 EPA until October 2007, there can be no doubt that this operated against the interests of the represented person who by 2006 was, according to the medical evidence, increasingly frail and dependent. On her own evidence, the donee states she had doubts about the workability of the 2004 EPA as soon as it was executed. It is not clear if she expressed those doubts to the represented person at that time. Whatever the position, it was not until 2006 following the represented person's admission to a high care facility and after a period of acute illness and hospital admissions, that the EPA appointing the donee solely was executed. That the applicant was only advised of the 2006 EPA by letter from the solicitors for the donee in October 2007 indicates the donee's approach to these matters. The failure by the donee to disclose the execution of the new EPA to the applicant appears to have arisen from her animosity to the applicant rather than following consideration of the interests and needs of the represented person.
52 In respect of the submission that an estoppel arises in relation to the claim for costs - in effect, that the applicant did not make an application for costs because of an agreement that neither she nor the donee would seek their costs - relies, in our view, on an understanding that the agreement (not to make a costs application) is in some way binding on the Tribunal when reaching a decision about a costs order, which it is not.
(Page 13)
53 If it were the case that such an agreement was reached between the parties, it might be relevant that one party had not honoured an agreement to a consideration by the Tribunal of the conduct of that party in proceedings. It is not possible, or necessary, to reach a concluded view regarding this point as the Tribunal has not heard from the claimant for costs regarding this matter, as the application for costs was decided on other grounds.
54 Fundamentally, the Tribunal is not satisfied that the donee acted in the best interests of the represented person in relation to her duties as donee, nor in relation to the proceedings before the Tribunal. Therefore, the application for her legal costs to be paid from the estate of the represented person is dismissed.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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