RK
[2021] WASAT 13
•5 FEBRUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RK [2021] WASAT 13
MEMBER: JUDGE K GLANCY, DEPUTY PRESIDENT
DR B DE VILLIERS, MEMBER
MS F CHILD, MEMBER
HEARD: 14 DECEMBER 2020
DELIVERED : 5 FEBRUARY 2021
FILE NO/S: GAA 3363 of 2020
RK
Represented Person
Catchwords:
Guardianship and administration - Review by Full Tribunal of determination of single Member to dismiss an application for the appointment of an administrator of the represented person's estate - Whether in need of an administrator of his estate - Whether less restrictive alternative of enduring power of attorney operating in best interests of represented person - Whether attorney appointed under the enduring power of attorney of the represented person acting with reasonable diligence to protect the interests of the represented person - Wishes of the represented person - Proposed appointment of corporate trustee not consistent with legislative provisions
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A, s 17A(1), s 64(1)
Interpretation Act 1984 (WA), s 5
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
FS [2007] WASAT 202
FY [2019] WASAT 118
PB [2020] WASAT 121
Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
RK [2020] WASAT 53
RK [2020] WASAT 99
SAL and JGL [2016] WASAT 63
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
AW has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for review of a decision made by a single member of the Tribunal on 25 August 2020 (the Review Application).
In that decision, the learned Member made an order dismissing AW's application that an administrator be appointed in respect of the estate of her father, RK.
In the Review Application, AW contends that her father's needs are not being adequately met because her mother, CM, who is RK's wife and guardian and the donee of his power of attorney, is financially abusing him.
On 8 May 2020 the Full Tribunal dismissed a review application which had been made by AW from a decision of a single member of the Tribunal which had appointed CM as RK's guardian for the purposes of making decisions about where he is to live, with whom he is to live, to make treatment decisions on his behalf and to determine the services to which RK should have access. The reasons for decision in that matter are reported at RK [2020] WASAT 53 (The May Guardianship Decision).
For the reasons which follow, the Tribunal has concluded that while RK is someone for whom an administration order could be made under the GA Act, it is unnecessary for an administrator to be appointed because RK's needs are being adequately provided for by CM through her use of the enduring power of attorney which was executed by RK in March 2018.
The evidence before the Tribunal on the Review Application
In considering AW's application for review the Tribunal has had regard to written material which was before us and the oral evidence which was given in the course of the hearing.
The hearing commenced on 2 November 2020. It was adjourned part heard in order to allow the Public Advocate to speak privately with RK and to provide a report which addressed both RK's wishes and views about whether his needs were being met by CM and more generally to consider and report to the Tribunal on the question of whether the existing enduring power of attorney provided a less restrictive alternative to the making of an administration order.
RK attended both days of the hearing by telephone and we invited him to express his views in respect of the Review Application on each occasion. We have taken the views expressed to us by RK into account in determining the Review Application.
A number of interested persons attended and gave evidence. They were:
(1)the applicant, AW:
(2)AW's husband, SW:
(3)LK, who is RK's and CM's son;
(4)CM, who is RK's wife;
(5)Mr DD, a Senior Investigator/Advocate from the Office of the Public Advocate; (Investigator) and
(6)Ms CR the General Manager, Operations, at the residential care facility where RK resides. Ms CR attended on 14 December 2020 by telephone.
CM was legally represented, as was her right. The other family members who attended the hearing had no legal representation. Despite not being legally represented, they were very capable of expressing their views both orally and in writing. The Tribunal considers that they were not disadvantaged by their lack of representation.
TK, who is RK and CM's younger daughter, attended the hearing with her mother but did not give evidence or make submissions. Similarly, LK's partner also attended the hearing but did not give evidence or make submissions.
Also in evidence before the Tribunal were a number of documents which were a combination of witness statements and submissions. They were:
(1)submissions by SW headed Submissions to Administration Appeal GAA 3363-2020 dated 19 October 2020;
(2)submission by LK dated 19 October 2020;
(3)written submission by AW dated 12 October 2020;
(4)undated submission to GA 3363/2020 by AW and the annexures to it which was provided to the Tribunal on 14 December 2020;
(5)power of attorney dated 19 March 2009 which was provided by CM;
(6)telephone records regarding phone calls made by RK between 15 August 2020 and 7 October 2020; and
(7)submissions of AW dated 14 December 2020.
Various documents prepared by medical practitioners and health professionals also formed part of the evidence. Those documents included, relevantly:
(1)Discharge Summary from Fremantle Hospital dated 9 March 2018;
(2)Fremantle Hospital and Health Services Medical Imaging Report dated 28 February 2018;
(3)Neurologists report of Dr PT dated 25 September 2018;
(4)Report of Dr LS dated 9 October 2020; and
(5)Osborne Park Hospital discharge summary dated 18 March 2020.
There were also reports prepared by service providers engaged in RK's care at various times including:
(1)support plan from 'my aged care' generated 18 March 2020;
(2)service provider report prepared by Ms CR, the general manager of operations at RK's residential care facility, dated 8 October 2020;
(3)a subsequent service provider report of Ms CR dated 27 November 2020; and
(4)report of the Investigator dated 7 December 2020.
The Tribunal also had regard to the Enduring Power of Attorney executed by RK on 13 March 2018 (EPA).
Finally, the Tribunal also had regard to the reasons for decision of the hearing before the learned Member reported as RK [2020] WASAT 99.
We will refer to the evidence and submissions and the reports later in these reasons.
Factual background
Matters concerning RK have been before the Tribunal on several occasions now. While family members disagree about whether RK is being adequately provided for, the factual background which we find established by the materials before us is uncontentious.
RK is 77 years of age. He has a diagnosis of dementia syndrome. He lives in a residential care facility.
RK is married to CM. While AW and LK regard them as no longer married because they say they have led separate lives for many years, as a matter of law they remain married.
Together RK and CM have three adult children AW, LK and TK.
CM is RK's attorney under the EPA. Prior to the making of the enduring power of attorney RK had granted a power of attorney to CM in 2009 (POA).[1]
[1] The power of attorney was handed up on 14 December 2020. AW gave evidence that it was executed because at that time RK would return to Europe periodically to visit relatives and CM needed to be able to deal with financial matters in his absence.
CM is RK's limited guardian. She has the authority to make decisions concerning RK's accommodation, the services to which he should have access and to consent to his medical treatment. That authority was conferred by orders made by the Full Tribunal in the May Guardianship Decision.
On 25 August 2020 the learned Member dismissed AW's application for the appointment of an administrator because he was satisfied that there was no need for an order because RK's financial affairs were being dealt with for his benefit via the EPA.
The nature of the review
Section 17A(1) of the GA Act permits any party who is aggrieved by a determination made by the Tribunal consisting of one member, to request the President of the Tribunal to arrange for a Full Tribunal to review the determination. Reviews under s 17A, therefore, come within the Tribunal's review jurisdiction.
As the Tribunal is exercising its review jurisdiction, the hearing of the Review Application was conducted as a hearing de novo. Consequently, the hearing was not confined to the matters that were before the Tribunal at first instance but involved the consideration of new material including evidence the Tribunal received in the hearing of the Review Application.[2]
[2] State Administrative Tribunal Act 2004 (WA) (SAT Act) s 27(1).
The purpose of a review is to produce the correct and preferable decision at the time of the decision on the review.[3]
[3] SAT Act s 27(2).
The issues for the Tribunal on the review were:
(1)whether RK is a person for whom an administrator could be appointed under the GA Act;
(2)if so, whether an administrator should be appointed in respect of RK's estate; and
(3)if so, who that administrator should be.
Principles governing proceedings under the GA Act
It is appropriate to recall, before turning to consider the primary questions in more detail, that in dealing with proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4 of that Act.
The primary concern of the Tribunal is the best interests of the represented person.[4] In addition, every person is presumed to be capable of, amongst other things, managing their own affairs and making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal.[5] That presumption applies in respect of every application under the GA Act.
[4] GA Act s 4(2).
[5] GA Act s 4(3).
In considering any matter relating to a represented person, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[6]
[6] GA Act s 4(7).
Furthermore, an administration order should not be made if the needs of the proposed represented person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action.[7]
[7] GA Act s 4(4).
Where the appointment of an administrator is required to be made, the order appointing an administrator or limited administrator should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible, in the circumstances, on the represented person's freedom of decision and action.[8]
[8] GA Act s 4(6).
When deciding who should be appointed as administrator the Tribunal must be satisfied that the adult person(s) who propose themselves as administrator (or the corporate trustee) will act in the best interests of the person concerned and be otherwise suitable to act as the administrator of the estate.
In deciding the issue of suitability the Tribunal shall, as far as possible, have regard to the following matters:
(1)the compatibility of the proposed appointee(s) with the person in respect of whom the application has been made;
(2)the compatibility of the proposed appointee(s) with the guardian (if any) of the person in respect of whom the application has been made;
(3)the wishes of the person in respect of whom orders are proposed to be made; and
(4)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
Appointment of an administrator
The appointment of an administrator requires that the Tribunal be satisfied as to the matters set out in s 64(1) of the GA Act. That subsection provides:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
The three primary questions for the Tribunal on the review, therefore, are:
(1)Whether RK suffers from a mental disability;
(2)Whether, by reason of that mental disability, RK is unable to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(3)Whether RK is in need of an administrator of his estate.
If those three questions are answered 'yes', then the Tribunal is required to consider subsidiary questions, such as who should be appointed the administrator.
RK and CM's marital situation and the making of the enduring power of attorney
Much was made by AW and LK in their submissions of their view that their parents are separated. The family circumstances were canvassed by the Tribunal in the May Guardianship Decision in which the Tribunal concluded that on the balance of the evidence CM could not be regarded as RK's former wife or ex-wife when considering family relationships.[9] There was nothing before the Tribunal on the Review Application that would cause us to depart from the previously expressed view of the Tribunal in relation to this matter. In any event we consider that the marital status of the represented person and the donee of his enduring power of attorney is not determinative of the matters we must consider on review of the decision of the single member and we do not propose to canvass that issue further in these reasons.
Consideration of criteria in s 64(1)
(a) Whether RK has a mental disability
[9] RK [2020] WASAT 53 [41].
Section 64(1)(a) of the GA Act requires that a person be 'unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate'.
The Tribunal must, therefore, be satisfied that the proposed represented person (in this case RK) has a mental disability. The expression 'mental disability' is defined in s 3 of the GA Act as including 'an intellectual disability, a psychiatric condition, an acquired brain injury and dementia'.
The medical evidence in this case is to the effect that that RK has dementia syndrome. The medical evidence supporting that finding is summarised in the May Guardianship Decision at [29]-[35]. The learned Member relied upon that evidence to find that RK has a mental disability.[10] There is no need to repeat that evidence in these reasons. In addition, at the review hearing the Tribunal had the benefit of a medical report of Dr LS dated 9 October 2010. Dr LS's report was written after seeing RK on that day. Dr LS reported that it was her opinion that RK has a mental disability, being dementia.
[10] RK [2020] WASAT 99 [71]-[72].
Having regard to the evidence, we are satisfied on the balance of probabilities, and we find, that DK is a person who has a mental disability.
It should be noted that finding was not in issue in these proceedings.
(b) Whether RK is, by reason of a mental disability, unable to make reasonable judgments in respect of matters relating to all or any part of his/her estate
Section 64(1)(a) of the GA Act requires that a person be 'unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate'. This means that, having found that RK has a mental disability, the Tribunal must also be satisfied first that RK cannot make reasonable judgments about matters concerning all or part of his estate and second, that that inability arises because of his mental disability.
The application of that section involves both subjective and objective tests.[11] The Tribunal must consider whether the person in respect of whom the application is made has the ability to make 'reasonable judgments' about their estate. That constitutes a subjective test, because the person's ability falls to be assessed in relation to their actual estate. The Tribunal must also consider whether the person has the ability to engage in the particular mental reasoning which is required in order to make that judgment, and that test is an objective one. The Tribunal is, therefore, required to:[12]
consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances.
[11] FS [2007] WASAT 202 [106] (Barker J, Ms Toohey & Mr Mansveld); Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 [45] (Pritchard J).
[12] FS [110] (Barker J, Ms Toohey & Mr Mansveld); Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 [45] (Pritchard J).
As the Tribunal said in FY:[13]
An individual's ability to make reasonable judgments in respect of their estate may depend on a variety of factors, such as their health, particularly their mental health, at any point in time. Fundamentally, however, a person's ability to make reasonable judgments about their estate requires that they have the intellectual ability necessary to make decisions of that kind. An individual's ability to make reasonable judgments in respect of their estate requires that they have, amongst other things, the ability: to understand the need for, and sources of, income available to them; to understand the value of any income received relative to items of expenditure; to identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into contracts such as those for the purchase of a phone, household items, a car, or a house); to organise their affairs so as to be able to meet debts as they fall due; and to identify and implement problem solving strategies for resolving any unexpected financial issues.
[13] PB [2020] WASAT 121 [45] citing FY [2019] WASAT 118 [52].
The reference to a person's 'estate' is a reference to the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs.[14]
[14] SAL and JGL [2016] WASAT 63 [22] (Parry J, Dr B De Villiers M & Ms D Quinlan M) ; see also Interpretation Act 1984 (WA) s 5; and see also the long title to the GA Act, which refers to the administrator providing assistance in the management of a person's financial affairs.
RK has an extensive estate including interests in a business, in real estate and a self-managed superannuation fund and another superannuation fund. He owns the business and property jointly with CM. He has income from the business, from a superannuation fund and has cash both in Australian and overseas bank accounts.
All of the family members who attended the hearing accepted that RK was unable to make reasonable judgments in respect of matters relating to his estate. It was also the view of Dr LS and of Ms CR of the residential care facility. Dr LS indicated in her report that RK was incapable of making decisions in relation to simple financial matters (defined as managing a budget, paying accounts and purchasing essential items) and also in relation to complex financial matters (defined as management of property, large sums of money, purchases or sales of significant assets, pursuing entitlements including income and superannuation and advocating for his own interests with financial institutions).[15] In her supplementary service provider report dated 27 November 2020 Ms CR expresses her opinion that RK could make simple financial decisions but would forget the decisions quickly.[16] She said in that report:[17]
Due to his cognitive impairment, complex financial decisions would cause RK anxiety, further confusion and elevated stress.
[15] Medical report of Dr LS dated 9 October 2020 page 3.
[16] Service Provider report of Ms CR dated 27 November 2020 page 3.
[17]Service Provider report of Ms CR dated 27 November 2020 page 3.
She also reported:[18]
RK has access to money in his wallet, provided by CM, his EPA which RK is satisfied with. RK would like to continue to [have] access to a small amount of money to enable him to achieve some limited or simple financial decisions and purchases, and this would assist him to achieve some of his goals independently, with support. This has been arranged with CM.
[18] Service Provider report of Ms CR dated 27 November 2020 page 3.
On the basis of that evidence we are satisfied on the balance of probabilities, and we find, that the evidence established that RK is unable to make reasonable judgments in respect of matters relating to his estate, apart from occasional decisions in relation to discretionary spending of small sums of money.
Section 64(1)(a) makes clear that an inability to make reasonable judgments in respect of one's estate does not, of itself, constitute a sufficient basis for the making of an administration order. Individuals without a mental disability are entitled to make choices in respect of their estate which others might regard as unreasonable. Nor does the mere existence of a mental disability, of itself, constitute the basis for the making of an administration order. People with a mental disability may, depending on the nature of the mental disability and the nature of their estate, be capable of making reasonable decisions in respect of their estate.
The criterion in s 64(1)(a) will only be satisfied if the Tribunal is satisfied, on the evidence before it, that a person has a mental disability, and that it is 'by reason of' that mental disability that they are unable to make reasonable judgments in respect of their estate, such that the presumption in s 4(3)(d) of the GA Act is displaced.
The meaning of the phrase 'by reason of' in the context of section 64(1)(a) of the GA Act was recently considered by the Tribunal in FY.[19] In that case the Tribunal held that the phrase implies a relationship of cause and effect[20] between a mental disability and a person's inability to make reasonable judgments in respect of matters relating to all or any part of their estate and equates to 'because of' and 'due to'. We respectfully agree with and adopt that construction of the phrase. In determining whether that inability to make reasonable judgments has arisen by reason of RK's mental disability, the practical application of ordinary causation principles is required.
[19] FY [2019] WASAT 118 [75].
[20] FY [2019] WASAT 118 [75].
We accept that RK has not managed his estate for many years, leaving it to CM to do so. In our view, there is no doubt now that it is the mental disability from which RK suffers which renders him incapable of making reasonable judgments in respect of his estate, although we note that we accept that RK is able to be supported to make occasional decisions regarding simple discretionary expenditure.
Accordingly, we are satisfied, on the balance of probabilities, and we find, that RK is, by reason of his mental disability unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
We are, therefore, satisfied and we find, that the requirement in s 64(1)(a) of the GA Act is met and RK is someone for whom an administration order could be made.
We turn next to explain why we are not satisfied that RK is in need of an administrator of his estate.
Is the represented person in need of an administrator of his estate
Having regard to the evidence discussed above as to RK's inability to make reasonable judgments in respect of his estate, and the nature of his estate, which includes significant assets and more than one income stream, there is no doubt that he requires assistance to deal with that estate, including to make financial decisions, other than of the most simple kind.
The question for present purposes, however, is not whether RK needs assistance to manage his estate but whether he needs an administrator to be appointed for that purpose.
Is the enduring power of attorney a less restrictive means
In this particular case the learned Member found that RK was not in need of an administrator because decisions were being made in respect of his estate by his wife, CM, pursuant to the enduring power of attorney (EPA) given to her by RK on 13 March 2018.
The EPA is a relatively recent expression of RK's confidence that CM would act on his behalf and in his best interests in relation to his estate. It was made at a time which, all parties agree, predated his lack of capacity and it was not revoked. Prior to the making of the EPA CM was RK's attorney appointed under the POA. That document was executed in 2009.[21]
[21] Power of attorney dated 19 March 2009.
It is clear that despite their living arrangements, referred to in the earlier decision, CM and RK have maintained conjoined financial arrangements and RK has allowed CM to manage their finances. In the extensive material provided by the applicants it is evident that CM and RK have accrued significant assets including a number of properties in their joint names. In the submissions made, issue is taken by AW with CM's management of the estate and, in particular, the properties and it is asserted that the resources of the estate have not been made available for the benefit of RK. It is asserted that the properties have been encumbered by CM or transferred, to RK's detriment.
In the Schedule Summary of Properties owned by RK and CM which was submitted by AW[22] the information provided indicates that the purchases and transfers of properties and the mortgages registered all occurred prior to the execution of the EPA in 2018, some many years before and indeed prior to the execution of the POA by RK. The financial management arrangements in place over this lengthy period have not been disturbed by RK despite what AW asserts were his reported concerns. It is also clear from the evidence provided that CM has managed the financial affairs successfully for many years and the financial downturn which was COVID-19 related experienced in the middle of the year has now resolved.
[22] Appendix 7 AW's written submission dated 20 May 2020.
The Tribunal has also had regard to the execution by RK of an EPA in 2018 and his power of attorney in 2009 both in favour of CM as an expression of his wishes. The Tribunal considers that the execution of these instruments formalised RK's long standing practice of reliance on CM in financial and business matters.
The interested parties who appeared at the review hearing all accept that RK is in need of assistance in making decisions in relation to his estate. However, there is a difference between the family members as to how that should be done.
CM has expressed the view that she is able to and is in fact making decisions in relation to RK's estate in his best interest pursuant to the EPA and hence it is her view that no administrator is required to be appointed.
On the other hand DW, SW and LK have all given evidence and made submissions in which they assert that RK is being financially abused by CM, who, they say, is not acting in RK's best interests in respect of his interest in the business and properties which they own either jointly or their own names. Further, they say CM is not appropriately applying the resources accumulated for his benefit and is denying RK items which would be of assistance to him and which are well within his means. By way of specific examples they point to items such as a transit wheelchair which they say would assist him in going on outings, an iPad connected to the internet which they say would allow him to maintain contact with family members including his sister who resides overseas and with whom, until admission to the residential care facility, he was regularly in contact. They say that he is not being provided with credit for his telephone, which has been limited to four numbers, and that he has no money with which to make discretionary purchases having only been provided with $200 since his admission to the residential care facility. Those family members have also asserted that RK should be being accommodated in a larger room at the residential care facility than is being provided for him. Reference was made to the fact that his estate has sufficient funds to provide RK with a room with a balcony.
It was also submitted by LK that RK regards his current living arrangements as degrading and akin to being kept in detention.
RK's views
Because the Tribunal is required to, so far as is possible, ascertain the views and wishes of RK,[23] at the hearing on 2 November 2020 we asked RK, who attended by telephone, if there was anything he wanted to tell us about the management of his financial affairs. His answer at the time was 'it looks okay to me up to now'.[24]
[23] s 4(7) GA Act
[24] ts 16, 2 November 2020.
Because of the very strongly held but opposing views of the various family members about what RK thought about his care and because there was a concern that RK may feel constrained in what he would say in front of his family, the hearing was adjourned on 2 November in order that the Public Advocate could speak with RK and provide the Tribunal with a report addressing:
(1)whether the existing enduring power of attorney provided a less restrictive alternative to the making of an administration order; and
(2)what are the views and wishes of RK regarding the administration of his estate and whether his needs are being adequately provided for out of his estate.
The report prepared by the Investigator dated 7 December 2020 essentially says that RK is happy with CM's management of his financial affairs. The Investigator says that RK told him that 'he trusts [CM] with the finances she has always been honest in that respect'.[25] The Investigator says that RK told him that he thought it would be too hard to change things so that his finances were managed by an administrator such as the Public Trustee or a private company and he did not support the appointment of either AW or LK because they would not get on with CM. The Investigator notes that RK seemed to regret not having structured his finances when he could have so as to allow him to have given some money to his children but appreciates that it is now too late for him to do so.
[25] Report page 4.
The Investigator's report says that RK was careful and diplomatic regarding answers to questions about who he would like to manage his finances and would not give a direct answer.[26] He says that RK advised that '[CM]is doing good job'[27] and that '[AW] always complains that he does not have enough money'.[28] He says RK reported that 'he has never been in a position where he has had to doubt there was enough money, he can simply ask [CM] and she would give him what he needed'.[29]
[26] Report page 4.
[27] Report page 3.
[28] Report page 3.
[29] Report page 3.
The Investigator says that RK 'appeared to realise it would be too late to rearrange things himself and all his needs were being met so he was satisfied'.[30]
[30] Report page 4.
The Investigator reported that RK had indicated to him that he did not want to move rooms or accommodation.[31]
[31] Report page 7.
At the hearing on 14 December 2020, which RK attended by telephone, RK was not as emphatic about the trust he had in his wife. He seemed to embark on a more philosophical consideration of trust which indicated that there were certainly tensions in his relationship with his wife. It is noted that the Investigator reported that RK had told him that '[CM] could yell at him and she was short tempered'.[32] That said, at no stage did RK inform the Tribunal that he did not have faith in his wife's management of his financial affairs or that he felt his needs were not being adequately provided for.
[32] Report page 4.
At the hearing on 14 December 2020 RK indicated that he would like greater disclosure and explanation to be given to him by CM about his affairs. The majority of his concerns however seemed to be centred around a feeling that he was lacking personal autonomy or agency. He indicated that he wished to be more free to come and go for walks at will. Those concerns are no doubt ones which many people face as their health and mental capacity deteriorates and are matters which will need to be addressed sensitively by his family and those who assist in his care at the residential care facility. However, none of those expressed concerns would lead the Tribunal to conclude that RK has any, or any justifiable, concerns about CM's financial management of his affairs. On not one of the three occasions when RK was given the opportunity to convey his views to the Tribunal did RK say anything about feeling his accommodation was degrading or inadequate for his needs.
AW submitted that RK's views were not being adequately heard by the Tribunal. She was of the view that the Tribunal should have spoken to RK in private and he should have been provided with legal representation for the purposes of the review application.
The Tribunal was satisfied that RK was able to adequately express his views. He attended the hearing on 2 November 2020 and on 14 December 2020 and on each occasion he appeared to have followed what was being said and spoke to the Tribunal directly. In addition, RK was able to make his views about his situation known to the Investigator who provided the Tribunal with his report.
The Tribunal has also had regard to the execution by RK of the EPA in 2018 and the power of attorney in 2009 both in favour of CM as an expression of his wishes. The Tribunal considers that the execution of those instruments formalised RK's long-standing practice of reliance on CM in financial and business matters. That is consistent with the views expressed by RK to the Tribunal on the Review Application.
Ms CR's views
Ms CR's initial report dated 8 October 2020 did indicate that RK did not then have access to any of his funds which, she said, had resulted in delays in purchasing items that he required such as clothing, personal items or a snack while on an outing.[33] Her subsequent report dated 27 November 2020, however, indicates that she was satisfied that those issues have been overcome and that RK's needs are now being met by CM.[34]
[33] Service provider report 8 October 2020 page 3.
[34] Service provider report dated 27 November 2020 page 3.
Ms CR's evidence was that the stress which RK is experiencing is a result of family disharmony, although she also said that RK himself has sound relationships with all members of his family with whom he has frequent contact and who informally support his physical and mental wellbeing and assist him to achieve his current daily goals. Her evidence was that RK's mood was often flat after visits with AW and that her staff at the residential care facility had put procedures in place to manage RK's moods at those times.[35]
[35] Service provider report dated 27 November 2020 page 2.
Ms CR's oral evidence was that there would be difficulties with RK being able to access a balcony if he were to move rooms within the residential care facility as he was generally confined to a wheelchair.[36] Her evidence was that there was no room with a balcony available at the residential care facility at the moment in any event.[37]
Public Advocate's views
[36] ts 5, 14 December 2020.
[37] ts 6, 14 December 2020.
The Investigator is the appointed representative of the Public Advocate in this matter. His report indicates that when RK moved into the residential care facility he was initially reluctant to have any money in his wallet to spend but that of more recent times, as he has become more settled in his accommodation he has been receiving money from CM most weeks. He reports that RK confirmed to him that he has enough cash and that CM will provide more if he asks for it.[38] That information was consistent with Ms CR's account of the situation.[39]
[38] Report page 6.
[39] ts 6, 14 December 2020.
AW uses as an example of her father's unmet needs her claim that CM is refusing to purchase a transit wheelchair (one that can be transported in the back of a regular car) for RK's use. The Investigator reports that CM is of the view (formed after consultations with RK's occupational therapists and physiotherapists and Ms CR) that RK should make use of a wheelchair-accessible taxi when being taken on outings from the residential care facility and, therefore, that a transit wheelchair is not required.
The Investigator reports that RK has expressed the view that he is in need of a new wheelchair for daily use. He indicated in his report that CM agrees that this is the case but is waiting for professional advice about the kind of wheelchair that will be most appropriate before purchasing one for him. The Investigator's report indicates that CM is not willing to act on AW's views of what is appropriate or necessary for RK.[40]
[40] Report page 6.
As for the issue of the capacity of CM to provide RK with a better room at the residential care facility, one with a balcony, the Investigator reported that CM had chosen to accommodate RK in a room without a balcony because he has cognition and motor problems and may be at risk if he has access to a balcony.
The Investigator noted that RK's finances and income are directly reliant on how CM manages their business. He stated that given that RK's needs are presently being adequately met via the EPA it 'makes sense that she continues to manage this and the general finances in a similar way she has successfully for decades'.[41] He also notes that as the guardian CM is able to quickly finance any aids, appliances or services that are recommended.[42]
[41] Report page 8.
[42] Report page 8.
The Investigator's report concludes:
Obviously there is some degree of subjectivity from the enduring attorney regarding acting in [RK]'s best interest, all family members may not agree with every decision she makes. On balance, with regard to the circumstances and conflict, it appears that all [RK]'s necessary financial decisions are being made by [CM] with the EPA which is acting as a least restrictive alternative to the making of an administration order.
…
The Public Advocate's representative recommends that the 17A(1) application be dismissed and [RK]'s estate continue to be managed by [CM] with the EPA dated 13 March 2018.
Conclusion
The Tribunal considers that everyone who attended the hearing has what they genuinely consider to be RK's best interests at heart although we acknowledge that, at present, family members do not necessarily share that view about each other. Additionally, the family is not presently united as to what is in RK's best interests. It is to be hoped that this does not remain the case because it is abundantly clear to outside observers that the family disharmony is causing RK stress, is impacting on his well-being and that continually bringing the disharmony to RK's attention is not in his best interests.
The Tribunal has accepted the evidence of the Investigator and Ms CR that CM is adequately providing for RK's needs via the EPA and so finds.
The Tribunal therefore concludes that although RK is someone for whom an administration order may be made, the least restrictive option is to allow his financial affairs to be managed via the EPA by CM who was, as recently as 2018, appointed the donee of that EPA.
Accordingly, the Tribunal dismisses AW's Review Application.
Appointment of corporate administrator
Before setting out the orders we make as a result of the conclusion we have reached there is one further matter we wish to address.
In her submissions AW has proposed that a corporate trustee be appointed as administrator to manage RK's finances, as some kind of independent umpire if you will. She did so because she correctly acknowledged that the present conflict between her and CM and between LK and CM would make the appointment of either one of them impossible, such an appointment being incompatible with the appointment of CM as RK's guardian.
Section 68(2) of the GA Act deals with the appointment of corporate trustees as administrator. It provides:
(2)the State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that –
(a)there is an individual who would otherwise be appointed administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
We have concluded that even if we were to find that an administrator was required to be appointed (which we do not), we would not make an appointment of the kind proposed by AW in this case for two reasons. First, we have no information that would satisfy the Tribunal that RK has made a will appointing any corporate trustee as his executor. Second, in the absence of a will appointing the corporate trustee his executor, the Tribunal could not make an order appointing a particular corporate trustee as RK's administrator unless we were satisfied that there is an individual who would otherwise be appointed who has requested the appointment of that corporate trustee company.
In this case AW is the person who has requested the appointment of the corporate trustee. She has acknowledged and we accept, that she would not be able to be appointed administrator because of the likely conflict with RK's guardian. CM has not requested the appointment of a corporate trustee. In the result, the appointment of the corporate trustee which AW has proposed would not be possible even if we had concluded that an administrator was required.
Although it is not necessary to do so, the Tribunal notes that AW provided a letter from a representative of Australian Executor Trustees Limited dated 30 October 2020 indicating that, contrary to CM's position, the representative did not have a pre-existing friendship with AW and had not met any of the family before being approached by AW about the possibility of acting as RK's administrator. The Tribunal notes that there is no evidence before us upon which we could conclude that AW had some kind of pre-existing relationship with the representative that in some way made her application improper.
Proposed orders
The Tribunal proposes making the following orders:
1.The order of the learned member of 20 August 2020 by which he dismissed the administration application is affirmed; and
2.AW's review application is dismissed.
The Tribunal will hear from the parties as to any additional orders that may be sought.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
CH
Associate to Judge Glancy
5 FEBRUARY 2021