AM and MM [2011] WASAT 200 (22 August 2011)

Guardianship and Administration Act 1990 (WA), s 86, s 87

1 The Tribunal reviewed an administration order made 16 months previously, in which the represented person's wishes that a friend be appointed as administrator were given great weight. The represented person's daughter sought a review of the order, and proposed that the Public Trustee replace the friend as administrator. There was no dispute that the represented person, who suffers from a progressive degenerative neurological illness, is a person for whom an administration order could and should be made. The main issue in the proceeding was whether the current administrator should continue to act or whether the Public Trustee should be appointed.

2 The Tribunal considered that there was no reason to conclude that the current administrator was not carrying out her duties in a reasonable manner, and that the represented person continued to want the administrator to act. That, plus the fact that to appoint the Public Trustee as administrator would involve the payment of considerable fees by the represented person's estate for administration services, meant that it would not be in the represented person's best interests to alter the current arrangements.

3 The Tribunal delivered its reasons for decision orally and the following statement of reasons has been edited from the transcript.

4 The background to the matter is that the represented person, MM, is a 54­year­old woman who suffers from a degenerative neurological illness. In April 2010 the Tribunal made an administration order in respect of MM in which Ms S was appointed as her plenary administrator. In the reasons given for that decision the Tribunal explained in some detail why that order was made ­ in particular, why it was thought appropriate that an order be made at all and why the Tribunal chose to appoint Ms S as the administrator rather than appointing some other person.

5 At the time of the order in April 2010 it was apparent that there was considerable conflict between MM and her husband. Their marriage had broken down and proceedings were contemplated, although they continued to live under the same roof. There was also considerable conflict between MM and her daughters, who appeared to be more inclined to support their father in relation to the dispute between husband and wife. The Tribunal placed great weight on MM's wishes as to who should be appointed and it was for that reason, although not the only reason Ms S was appointed at the time.

6 The current position is that the former matrimonial home has now been sold and MM has been able to move into an appropriate unit where support will be available. She will, in due course, have to pay an amount to purchase that unit. Proceedings have been commenced in the Family Court between MM and her husband and the Tribunal was advised at the hearing on 5 July 2011 that the main dispute between husband and wife related to the division of matrimonial assets.

7 In May 2011 one of MM's daughters, AM, applied to the Tribunal under s 87 of the Guardianship and Administration Act 1990 (WA) (GA Act) for leave to apply to the Tribunal under s 86, to have the April 2010 order reviewed. Leave was granted and the current application was made.

8 At the hearing on 5 July 2011 the Tribunal was advised that negotiations between MM and her husband had bogged down, but a conference was to be held in the Family Court a few days after that hearing with a view to attempting to negotiate a settlement, and that the issue in dispute appeared to be what assets were available for distribution apart from the former matrimonial home. After hearing evidence on 5 July 2011 the Tribunal decided to adjourn the hearing - firstly, to enable the conference to occur in the Family Court, but secondly, to enable AM and the legal representatives of Ms S to make submissions in writing, particularly in the light of any outcome of the Family Court conference.

9 Both took advantage of that opportunity. In the case of AM the written submissions were, in large part, the same as the matters that she had raised at the hearing on 5 July 2011. AM's position was that she wanted the Public Trustee appointed to manage her mother's financial affairs and she referred to a number of matters that led her to conclude that the current arrangements were not satisfactory.

10 Firstly, she referred to conflict between MM's daughters and Ms S and Ms S's sister, Ms C. Ms C is a long-term friend of MM and it was through her that MM came to know Ms S, although in fact MM has known Ms S for about 20 years. Nevertheless, it was the view of AM that the conflict between MM's children and Ms S, and the involvement of Ms S and Ms C in their mother's affairs, was affecting their relationship with their mother.

11 AM referred also to a lack of communication between the daughters and Ms S, and AM also thought that her mother was able to be manipulated by Ms S and Ms C. She feared that that might occur, but no evidence was submitted that might lead the Tribunal to conclude that this was the case. The same comment can be made about another point raised by AM, which was that Ms S has issues with her ex-husband which AM believed might be clouding Ms S's ability to manage MM's affairs. Again there was no evidence offered to support this.

12 AM also made the point that Ms S and the lawyer who had been engaged to represent MM, were making unreasonable demands regarding the settlement of the sale of the former matrimonial home and had delayed settlement by making demands about the release of part of the sales proceeds. It appears that there were some negotiations occurring at that time and a request had been made by MM's lawyer that part of the sale proceeds be released so that MM could pay for the unit that she wished to move into at that stage; to pay for legal expenses that had been incurred up to that date (approximately $11,500), and to pay money to the lawyer to be held on account of future legal costs for the ongoing matrimonial proceedings.

13 At the hearing on 5 July 2011 MM was quite clear in stating her views about the administration order. MM accepts that she needs help with her financial affairs, and in this respect she adopted a different stance from that which she had adopted in April 2010. At that time MM thought she was still able to manage her affairs, but that if an administrator were to be appointed it should be Ms S. Importantly, MM was very happy with the assistance she was getting from Ms S and trusted her. Her opinion that she wanted Ms S to manage her affairs was unchanged.

14 MM said that her relationship with her daughters was about the same, or a little better, than it had been in 2010 when the original order was made. In this respect, MM had a slightly different view to that of her daughters regarding the extent of her recent contact with them.

15 Ms S described how she had managed, on MM's behalf, the move from the matrimonial home to the new unit. It was apparent that whoever's version about these events was correct, it was a sad and difficult period for MM, and the Tribunal has no doubt that she required considerable assistance from Ms S and Ms C - to find both the new accommodation and arrange for the move.

16 Ms S said that she had been required to purchase furniture and other requirements for MM and she, Ms S, was concerned about the cost of legal representation - but it was clear that MM needed representation in the matrimonial proceedings.

17 The submission that was subsequently submitted on behalf of Ms S expressed the opinion that the application made by AM seemed to be motivated by a desire to influence expenditure by Ms S to obtain legal representation for MM in the Family Court. It is undoubtedly the case that one of AM's concerns was what she perceived to be unnecessary or unreasonable demands being made by the administrator through the solicitors who had been engaged. That point will be returned to below.

18 The other point made in the submission lodged on behalf of Ms S was that at the conference held in the Family Court on 14 July 2011, agreement had been reached subject to subsequent court orders. The terms of that agreement appear to resolve the outstanding issues between MM and her husband in a way that is more favourable to MM than seemed to have been the case prior to 5 July 2011.

19 In reviewing the April 2010 administration order, the first thing to be noted is that no one in the current proceeding disputed that MM is still a person for whom an administration order can and should be made, and that there is still a need for an administrator. The Tribunal received a report from Dr L (MM's treating psychiatrist) dated 21 June 2011, in which Dr L expresses the opinion that MM is incapable of making reasonable judgments about her finances and is not competent to make an enduring power of attorney ­ but that, nevertheless, she is a person who can make a significant contribution to the hearing. The Tribunal also received a report dated 15 June 2011 prepared by Ms McG who is a senior social worker, and MM's case manager, to similar effect. As noted above, MM now concedes that there is a need for assistance in managing her financial affairs and she is happy with the current arrangements.

20 The Tribunal concludes, therefore, that MM continues to be a person who suffers from a mental disability, who is unable to make reasonable judgments about her finances, and that there is a current need for the administration of her financial affairs. That need relates primarily to finalising the court proceedings and then investing and managing MM's funds thereafter.

21 Once again, the real question in the matter is who should be appointed as MM's administrator. The Tribunal sees no reason to change the current arrangements for the following reasons.

22 Firstly, the Tribunal is satisfied that Ms S is doing a reasonable job in carrying out the duties of an administrator in a reasonable way. The Tribunal cannot see any deficiency in the way she has undertaken the task. There is clearly a need to pay for legal representation. The lawyer acting for MM was, in fact, engaged prior to the administrator's appointment and there is nothing to suggest that any excessive legal fees have been paid.

23 Indeed, the Tribunal was told that Ms S has expressed some concern about the full cost of legal representation. Nevertheless, it is the case that legal representation has to be paid for regardless of who is engaged, and it is fair to note that the largest amount that was of concern to AM was an amount to be paid on account of future costs. If, as seems the case, the matter is now settled by negotiation, then the vast majority of that amount will not be expended.

24 Secondly, it is obvious that there is a very good relationship between MM and Ms S. MM is happy with the services provided and wants Ms S to continue as administrator. The Tribunal places great weight on this factor. The compatibility between represented person and administrator is a very important factor in a decision of this kind. Further, although it is obvious that there is antipathy between MM's daughters and Ms S and Ms C, the Tribunal notes that that antipathy does not appear to be reciprocated by Ms S and Ms C. The Tribunal has no reason to consider or believe that Ms S will inhibit contact between MM and her daughters.

25 The third reason is that the alternative to Ms S's appointment, namely the appointment of the Public Trustee, would cost a considerable amount of money to MM. In view of what the Tribunal understands will be MM's asset position once the Family Court proceedings are finalised, she will have quite an amount of money to invest - on which, of course, she must live in future. That asset position would result in some thousands of dollars each year being spent on Public Trustee fees. The Tribunal sees no need for that to occur given the suitability of Ms S and her willingness to continue to act.

26 For these reasons the Tribunal concludes that Ms S should be reappointed as MM's plenary administrator. That leaves only the question of when this order should be reviewed. The original order made in April 2010 required a review in April 2012. The position now is that the matrimonial proceedings appear to be finalised.

27 One consequence of this should be that MM's financial position may soon settle down and her need for an administrator may reduce, although the Tribunal sees no reason to think that there will not be an ongoing need for financial management given the assets that have been mentioned. In addition, if the matrimonial proceedings are finalised, the friction between MM and her daughters may subside - one hopes that it will - and it may well be that at some time in the future MM will see her daughters in a different light and be more willing to consider alternatives for her financial management.

28 The Tribunal, therefore, orders that the appointment be looked at again after one more year - in other words by 22 August 2012 ­ and confirms Ms S as the plenary administrator with a review on that date.

I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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