VZ and HJM
[2011] WASAT 89
•17 JUNE 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: VZ and HJM [2011] WASAT 89
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
MS K KEMP (SESSIONAL MEMBER)
HEARD: 13 JUNE 2011
DELIVERED : 17 JUNE 2011
FILE NO/S: GAA 871 of 2011
BETWEEN: VZ
Applicant
AND
HJM
Represented person
Catchwords:
Administration - Administrator wishing to be discharged - Contact between administrator and guardian - Public Trustee appointed
Legislation:
Guardianship and Administration Act 1990 (WA), s 17A, s 68(3), s 86
Result:
Administration order revoked
Public Trustee appointed plenary administrator
Category: B
Representation:
Counsel:
Applicant: Self represented
Represented person : Self represented
Solicitors:
Applicant: N/A
Represented person : N/A
Case(s) referred to in decision(s):
SM and HJM [2011] WASAT 49
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Following revocation of an order appointing him as guardian for HJM, VZ applied to the Tribunal for his discharge as HJM's plenary administrator.
The Tribunal considered that, given the circumstances that led to the revocation of VZ's appointment as guardian, it was in the best interests of HJM for the Tribunal to accede to VZ's wish to be discharged. In the absence of any other suitable administrator, the Public Trustee was appointed.
Ground
VZ is the administrator of the estate of an 89yearold woman, HJM, who resides at a nursing home. She suffers from advanced dementia. VZ was first appointed administrator in June 2005, and reappointed in August 2010. VZ was, until January this year, also appointed as HJM's guardian, having first been appointed limited guardian in March 2007, and subsequently as plenary guardian in March 2008.
On the application of the Director of Care at the nursing home at which HJM lives, the Tribunal decided, in January 2011, that the guardianship order appointing VZ should be revoked, and replaced by an order appointing the Public Advocate as HJM's plenary guardian see SM and HJM [2011] WASAT 49.
Approximately two months later, on 21 March 2011, VZ lodged an application for a review of the administration order. In that application, VZ gave as his reason for making the application that he did not agree with the recent Tribunal's decision to relieve him of the appointment as plenary guardian.
Clarification as to the nature of VZ's application was sought from him. He responded to that enquiry in writing. He confirmed his disagreement with the Tribunal's decision removing him as plenary guardian, made certain complaints about the January hearing and the consequences of its outcome, and concluded that HJM 'is beyond my help, let her family take responsibility'.
In light of VZ's response, there remained some uncertainty as to whether he sought a review of the January decision pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) or whether he had sought a review of the administration order pursuant to s 86 of the GA Act. VZ was contacted by an officer of the Tribunal by telephone, and he confirmed that his wish was simply to be relieved of his role as administrator.
The matter was listed for hearing, and the requisite notices given. Noone appeared at the hearing. VZ was contacted, advised an officer of the Tribunal that he wished to have the Tribunal deal with the matter in his absence.
Statutory basis for application
In the circumstances outlined above, the Tribunal determined that the application should be treated as a mandatory review under s 85 of the GA Act. That section requires the Tribunal to review an administration order if the administrator wishes to be discharged. We are satisfied that VZ has made that wish clear in both his application and the subsequent communications with the Tribunal.
The appropriate orders
The communications received via the Tribunal in relation to this application demonstrate VZ's dissatisfaction with the Tribunal's decision to appoint the Public Advocate as HJM's guardian. His letter of 8 April 2011 criticises the Tribunal's decision, and criticises the Public Advocate's delegate dealing with HJM's guardianship.
The tone of these communications with the Tribunal make it clear that VZ is no longer willing to perform the role of a plenary administrator of HJM's estate. That is enough, in itself, to warrant the Tribunal acceding to VZ's wishes. One of the factors which the Tribunal is required to take into account in appointing an administrator is the compatibility of the proposed appointee with the guardian of a person in respect of whom the application is made GA Act s 68(3). VZ's criticism of the current arrangements in relation to guardianship strongly suggests that the necessary cooperative relationship between a guardian and an administrator will be lacking if VZ were to remain the plenary administrator of HJM. That is not in HJM's interests.
In the circumstances, therefore, we consider it appropriate that VZ's request to be removed as plenary administrator of the estate of HJM should be granted.
Who should be appointed in his place
There is no suggestion in this case that HJM is able to make reasonable judgments in respect to matters relating to her estate. Her condition of advanced dementia, which has been dealt with by the appointment of both a guardian and an administrator over a number of years, renders her in need of an administrator of her estate.
None of HJM's relatives have consented to act as administrator and did not choose to participate in the present proceedings. It appears that HJM's closest relatives reside in Victoria. No other person has been suggested to the Tribunal as being suitable to assume the role of administrator. In those circumstances, it is appropriate that the Public Trustee be appointed as the plenary administrator of HJM's estate, and orders will be made accordingly.
Orders
1. The order of the Tribunal made on 2 August 2010 appointing VZ as plenary administrator of the estate of HJM with all the powers and duties conferred by the Act is revoked.
2. The Public Trustee is appointed plenary administrator of the estate of the represented person with all the powers and duties as conferred by the Act.
3. This order is to be reviewed by 13 June 2016.
I certify that this and the preceding [14] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
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