ZJ
[2007] WASAT 179
•6 JULY 2007
ZJ [2007] WASAT 179
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 179 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:373/2007 | 14 MAY 2007 | |
| Coram: | MS F CHILD (MEMBER) | 6/07/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Order revoked | ||
| B | |||
| PDF Version |
| Parties: | ZJ |
Catchwords: | Guardianship and Administration Review of administration order Represented person with intellectual disability but able to manage his financial affairs Complex legal matters for which the Public Trustee acted as administrator completed No need for an administrator Order revoked |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 64(1)(a), s 64(1)(b) Inheritance (Family and Dependants Provision) Act 1972 (WA) |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : ZJ [2007] WASAT 179 MEMBER : MS F CHILD (MEMBER) HEARD : 14 MAY 2007 DELIVERED : 6 JULY 2007 FILE NO/S : GAA 373 of 2007 BETWEEN : ZJ
- Represented person
Catchwords:
Guardianship and Administration - Review of administration order - Represented person with intellectual disability but able to manage his financial affairs - Complex legal matters for which the Public Trustee acted as administrator completed - No need for an administrator - Order revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 64(1)(a), s 64(1)(b)
Inheritance (Family and Dependants Provision) Act 1972 (WA)
Result:
Order revoked
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Category: B
Representation:
Counsel:
Represented person : N/A
Solicitors:
Represented person : N/A
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 On review of an administration order made under the Guardianship and Administration Act 1990 (WA), the State Administrative Tribunal revoked the appointment of the Public Trustee as limited administrator of the estate of a 49-year-old man with intellectual disability. Although the man has a cognitive impairment, he was, according to the expert opinion, able to manage his day-to-day financial affairs himself with some family support. Legal proceedings for which the Public Trustee had been appointed administrator to conduct on his behalf had been completed and there was no current need for the administration order.
2 The revocation of the order was consistent with the principles of the Guardianship and Administration Act 1990 (WA)which provide that no order should be made if a less restrictive alternative for the management of the person's affairs is available.
Background
3 The Public Trustee was first appointed the limited administrator of ZJ (the represented person) in 2001 following an application by a social worker from the Disability Services Commission to the then Guardianship and Administration Board.
4 The application was made just prior to the death of the represented person's father. The represented person's father had changed his will in the months prior to his death when he was gravely ill and the application from the social worker was brought in the belief that the represented person may not have been adequately provided for in the will. This raised issues of where he was to live and the proper protection of his interests. In particular, there was concern about where he would live as he had always lived in the family home with both parents, up until the death of his mother some years before and then with his father prior to his death.
5 The Public Trustee was appointed administrator of the estate of the represented person, in particular to represent his interests in respect of the deceased estate of his late father in light of the conflicts of interest between the represented person and his sisters, one of whom was executor of the will. There was also conflict between the sisters of the represented person.
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6 The application for the appointment of a guardian which was made at the same time was dismissed as the represented person chose to stay with his sister L and be supported by her.
7 The original order was reviewed in July 2001 following an application supported by a clinical psychologist that the order made was having a detrimental effect on the mental state of the represented person.
8 On review the following order was made:
"The appointment of the Public Trustee is confirmed as limited administrator with the following functions:
(a) to seek legal advice on behalf of the represented person in relation to his interest in the estate of his late father (including any right of action under the Inheritance Act) and to bring an action or other legal proceedings in the name of the represented person in relation to the same and relative matters and, if appropriate, to settle the same.
(b) To seek legal advice and act on behalf of the represented person in relation to any issues that arise in respect of the represented person's right of occupancy of [address deleted] pursuant to the will of the late [name of the deceased father of the represented person] dated 30 June 2000 or any conditions or restrictions imposed thereon by the executor of the will.
(c) On its maturity to call in not more than 50% of the sum invested in the term deposit [account number deleted] in the name of the represented person with the Commonwealth Bank and apply the money to legal or other costs incurred on behalf of the represented person."
9 That order was reviewed in July 2004 and the order confirmed as the legal issues had not been resolved.
10 There was a further periodic review of the order in October 2006 by which time the jurisdiction and functions of the Guardianship and Administration Board had been taken over by the State Administrative Tribunal (from January 2005).
11 At that review the solicitor for the Public Trustee reported that there had been protracted legal proceedings arising out of the will of the late
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- father of the represented person including a challenge to the will and later an application made by the Public Trustee on behalf of the represented person under the provisions of the Inheritance (Family and Dependants Provision) Act 1972 (WA). There remained some outstanding matters, including the passing of accounts of the executor by the Court, which were nearly complete. Once matters were finalised there would be no need for the existing order as the property would continue under the management of the Public Trustee as trustee of the deceased estate. The administration order was confirmed for a further period of 6 months.
Current review
The legislation
12 On review of any order made under the Guardianship and Administration Act 1990 (WA) the Tribunal must consider whether the person remains a person for whom an administration order can be made; that is, that he is unable by reason of a mental disability of making reasonable judgments about any or all of his estate. (Section 64(1)(a) of the GA Act). Whether he is in need of an administrator (s 64(1)(b)) or whether there are less restrictive alternatives to the making of an order (s 4(2)(c)).
Is the represented person unable by reasons of mental disability of making judgments about any or all of his estate?
13 The Tribunal has reports before it which state that the represented person has an intellectual disability and is registered with the Disability Services Commission (DSC).
14 The most recent medical evidence regarding the capacity of the represented person to manage his own financial affairs is provided by a general practitioner, Dr D, who states that she is "not sure" whether the represented person is able to make reasonable judgments about his financial affairs.
15 The Tribunal also has before it reports from clinical psychologists and a social trainer from DSC which report on formal assessments of the capacity of the represented person to manage his own financial and personal affairs. These reports note significant deficits and the need for assistance and prompting with activities of daily living but that the represented person with some assistance could manage his banking. It was reported that when questioned about people exploiting others financially the represented person's responses were "very appropriate."
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16 Ms C, a clinical psychologist who assessed the represented person for the DSC in 2000 and who attended the review hearing, confirms her earlier reports that the represented person has significant impairments in memory and that his executive functioning is impaired. Her evidence is that while the represented person has difficulty with complex decision-making he has the capacity to manage his own banking and bill-paying in the context of family support. She notes that this capacity was recognised in the limited order which had allowed the represented person to retain control of the management of his own financial affairs and he had proved his capacity in this respect over time. Her view is that now the legal proceedings which required the appointment of the Public Trustee are complete the represented person is able to manage his financial affairs with the support of his sister, L, and her husband.
17 This is supported by the solicitor for the Public Trustee who states that in her view the represented person is not able to make complex legal decisions but the proceedings are now at an end. In her view, the represented person is quite good at managing his money, with "a good eye to the dollars and cents" and is able to negotiate payments of his accounts on his own behalf.
18 The represented person's sister, L, and her husband both agree that the represented person is independent in paying his bills and only needs to be reminded from time to time.
Is he in need of an administrator of his estate?
19 The question of the need for an administrator must be considered in light of the estate of the represented person to be managed.
20 At the time of the original appointment of the Public Trustee it was determined that an independent administrator was needed to safeguard the represented person's interests in light of the disputes arising from the deceased estate of his late father and the likelihood of legal proceedings. At the time this was supported by the sisters of the represented person through their solicitors.
21 Over the course of the order the legal proceedings included a challenge to the validity of the will of the represented person's late father by his sister, L, and an Inheritance (Family and Dependants Provision) Act 1972 (WA)claim brought on behalf of the represented person by the Public Trustee. This application was heard in the court and orders made varying the terms of the will in May 2005.
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22 The terms of the variation were that the property, including the family home, of the deceased be transferred to the Public Trustee to be held on trust for the beneficiaries of the deceased estate of the late father of the represented person. The bequest made to L, the sister of the represented person, was increased to $70 000. The court further ordered that overseas property of the deceased be divided between the sisters in equal shares and the residue of the estate after payment of costs be transferred to the Public Trustee for the benefit of the represented person for life and upon his death for his sisters in equal shares.
23 Because of the nature of the contested proceedings there were significant costs which, it is understood, were primarily met from the deceased estate. It is understood that because of this one of the properties held in the estate had to be sold. The solicitor for the Public Trustee reports that there are insufficient funds in the trust to allow for the payment of the $70 000 to L. However, L has not pressed this entitlement to allow her brother to continue to have the use of the former family home as it is the only home that he has known.
24 At the time of the review hearing the represented person is spending some time at the former family home, which he regards as his home and most nights in the care of L and her husband. He remains dependent on others for assistance and prompting but the evidence is that with reminders he is able to manage his financial affairs and takes great pride in doing so. The clinical psychologist and sister L and her husband all support the revocation of the order as there is considered to be no need for it in the present circumstances.
25 The solicitor for the Public Trustee explains that the legal matters including a taxation of costs and passing of accounts of the executor are now complete and the Public Trustee as administrator has nothing further to do in respect of the orders made by the Tribunal. The day-to-day management of the property is conducted by the Public Trustee as trustee. She notes that the represented person had a life interest in the residue of the estate, the family home in which he stays regularly forms part of that estate and it was through the good grace of his sister L who was willing to wait for the payment from the trust, that the represented person continues to have use of the property.
26 The only outstanding matter relates to the overseas land of the deceased father which may or may not involve a payment to the represented person.
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27 The uncontested evidence before the Tribunal is that the procedure for the determination of the interests of the beneficiaries in the overseas property is a probate procedure, and each of the children of the deceased has been identified for those proceedings.
28 L, the sister, and her husband undertook to represent the interests of the represented person at their cost in the overseas proceedings. It was common ground that there may be no funds flowing from the interest of the represented person, if any, in his father's deceased estate overseas because no one knows the value of the land involved.
29 If substantial funds are realised from this property for the represented person, the psychologist, Ms C, states that there might be a need in the future for an administration order. The brother-in-law supports this view. He considers that an application could be made should this occur.
30 M, the sister of the represented person and the executor of the estate of her late father, also does not see the need for continuation of the order. She agrees that the value of the overseas land is unknown and may be negligible.
31 M challenges much of the material provided by the Public Trustee. She raises concerns about the costs of the litigation conducted and the involvement of the Public Trustee. She also takes issue with and seeks to question the decisions of the Public Trustee as trustee. These are not matters in which the Tribunal has any jurisdiction and are matters which, as explained in correspondence to her from the Public Trustee which is before the Tribunal, she may take up as a beneficiary of the trust through the Supreme Court.
32 The representative of the Public Advocate, who investigated the need of the represented person for an administrator for the review, raises concern about the legal costs associated with the litigation because legal costs on all sides had diminished the assets of the trust.
33 The solicitor for the sister L notes that the Supreme Court has a mechanism for taxation of costs and this was not a matter for the Tribunal. The solicitor for the Public Trustee notes that the legal costs had been "astonishingly high" and that M as executor had been invited by the taxing registrar of the Court to have the costs taxed but had not taken this up and the time had now passed when this could be done.
34 It should be noted that at the original hearing of the application before the Board the solicitor for M alerted the parties to the risk of costs
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- associated with protracted proceedings and the need for a negotiated settlement. He spoke in support of the appointment of an independent administrator to represent the represented person's interests at those negotiations.
35 The Public Advocate's representative supports the revocation of the existing order on the basis that there is no current need but supports the need for a further application if substantial funds come into the hands of the represented person in the future.
36 In respect of the estate of the represented person as it now stands, the Public Trustee holds $3631.66 of the represented person in the Public Trustee's cash account. There is, according to the trust officer, a potential refund to the estate of legal expenses of $7997.05. The represented person has shares in a major bank which he purchased prior to the original administration order, a term deposit, a bank account and his pension income. His shareholding, the balance of the term deposit, his bank account and pension are not included in the administration order.
37 The property which was the family home is now part of the trust and is managed by the Public Trustee. The represented person will contribute to the outgoings in an arrangement to be made with the trustee.
Reasons
38 Considering all the evidence in respect of the represented person, I find that the represented person remains a person for whom an order can be made, in that he does have an impairment of his cognition which means that he is not able to make reasonable judgments in relation to all of his estate. That estate includes his contingent interest in the overseas property of his late father.
39 It is unclear whether the represented person will obtain any benefit from the distribution of this part of the deceased estate. The represented person is currently assisted by his sister L and brother-in-law to put his position before the court overseas.
40 Although there is an inherent conflict of interest between the interests of the represented person and his sister in relation to this, L has shown at all times that she is devoted to the care of her brother, both in a practical ways as his primary carer in her own home and her support which allows him to continue to have the use of the family home which he understands to be his own home. She does this by providing food and assistance to him when he stays at the property and by her agreement with
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- the Public Trustee to forgo her immediate entitlement in the deceased estate to ensure that the property need not be sold.
41 I am satisfied that L has acted in the interests of the represented person, at times to the detriment of her own interests, and I accept her evidence and that of her husband and that they will assist the represented person at their own cost in relation to the overseas proceedings. This is a less restrictive alternative to the appointment of an administrator to conduct these proceedings on his behalf which may have no positive outcome and which may involve further costs to his estate.
42 With the support of L and her husband, the represented person has been able to manage his day-to-day financial affairs in the period since the order was reviewed in 2001. The continuation of his ability to do this is seen as critical to his health and to his mental state by the clinical psychologist. There is no need for an administration order to manage these aspects of his estate.
43 Since the legal proceedings for which the Public Trustee was appointed administrator are now complete, the representation of the interests of the represented person in the overseas property and his day-to-day finances are managed less restrictively through the involvement and support of his sister L and her husband, there is no need for the continuation of the appointment of the Public Trustee as administrator. This is consistent with the wishes of the represented person.
44 Since there is no need for an administrator of the estate of the represented person an order may not be made.
Order
45 The order under review is revoked.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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