JA [2020] WASAT 73 (9 July 2020)

Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43(1)(b), s44(2)(b), s 64, s 64(1), s 68, s 69(3), s 70(1), s 71(2), s 71(3), s 72(1), s 72(3), s80(4)(b), s 84, Sch 2, Pt A, cl 4

State Administrative Tribunal Act 2004 (WA), Div 7, Div 8

JA [2018] WASAT 68

RJK [2019] WASAT 109

1. These are the reasons for the decision made on review of orders made under the Guardianship and Administration Act 1990 (WA) (the GA Act) for JA (the represented person).
2. The represented person is a 32­year­old man with an intellectual disability. Guardianship and administration orders were first made for him in 2018. Prior to that time his financial and personal decisions were managed informally with the support of his family, his mother D, his father B, sister S, and stepfather T.
3. The orders currently under review pursuant to s 84 of the GA Act appoint the Public Trustee as plenary administrator of the represented person's estate and the Public Advocate as his limited guardian.

1. The guardianship order dated 24 August 2018 was due for periodic review on 24 August 2019 and listed for hearing on 15 October 2019. That hearing was adjourned so that the review of the guardianship order could be heard together with the review of the administration order due in December 2019.
2. The adjournment of the guardianship review followed the receipt of a letter from the Principal Legal Officer (PLO) of the Public Trustee on 9 October 2019 regarding issues in the management of the represented person's estate which the Tribunal considered were relevant to the review of both the guardianship and administration orders.
3. The matters were relisted and heard together on 9 January 2020. At that hearing the Tribunal heard from the represented person, his parents and representatives of the Public Advocate and the Public Trustee. B was questioned in that hearing about the whereabouts of funds which had been withdrawn from the represented person's bank accounts on the day the administration order was first made for the represented person in June 2018.
4. The review hearing was adjourned again so that the matters raised in the PLO's report could be referred to the President of the Tribunal to consider whether the reviews should properly be considered as an application for review of the orders under s 17A of the GA Act. Following that referral the President indicated that the statutory reviews pursuant to s 84 of the GA Act should be heard and determined by the Tribunal as originally constituted.
5. The reviews were listed for a directions hearing on 15 April 2020, which was attended by the parties by telephone due to COVID­19 restrictions. Representatives of the Public Advocate and Public Trustee attended. Individual advocates from People With Disabilities and Carers WA assisting the represented person and his father, B, respectively were given leave to represent them in the proceeding.
6. Documents filed in the review proceeding, (other than the report of the PLO), copies of previous orders and written reasons for the original decision to appoint an administrator of the represented person's estate were released to the advocates so that written submissions could be prepared and filed on behalf of B and the represented person.
7. It was ordered that any further written submissions be filed with the Tribunal by 13 May 2020 and the reviews would be then determined on the documents.
8. Submissions were received from B and D and from the individual advocate on behalf of the represented person. In addition to earlier reports filed by the delegated guardian of the Public Advocate (guardian), the trust manager and the PLO, further submissions were filed from both the Public Advocate and the Public Trustee.

1. An administration order was first made for the represented person on 26 June 2018 at which time his sister, S, was appointed the plenary administrator of his estate. That order was made following an application by a clinical neuropsychologist (the original applicant) because of conflict which had arisen between the represented person's parents about the management of his financial affairs. Reasons for that decision were published on 26 July 2018 as JA [2018] WASAT 68 (JA).
2. The administration orders made on 26 June 2018 were revoked on 3 July 2018 on the urgent application of the Public Advocate and new orders were made appointing the Public Trustee as the plenary administrator of the represented person's estate.
3. As part of the orders made, the Public Trustee was directed:

to take immediate steps to secure the estate of the represented person including $55,000 withdrawn from the National Australia Bank account of the represented person on 26 June 2018 on the day of the appointment of an administrator of the estate of the represented person and the declaration being made under s 64 of the GA Act (WA). (Legal matter)

1. Further orders were made on that day for the production of banking records. The orders were set for review by 20 December 2019 and are presently under review.
2. An application for the appointment of a guardian was made for the represented person by the original applicant in August 2018 following a further deterioration in communication between family members and withdrawal of the represented person from his long­term employment.
3. The Public Advocate's investigator reported that the represented person had ceased working in his paid supported employment the day after the original administration hearing, supported by B who was (and is) his carer, without any consultation with D.
4. The Tribunal was told that the represented person had worked with the same supported employment organisation for six years and was described by a staff member of his employer as well­liked, a good employee and having a lot of friends.
5. A holiday which had been planned for the represented person by the service provider had also been cancelled by B. At the time of the guardianship hearing the represented person was working at home, in the rental home he shared with B, as an unpaid intern in B's small business, which B had previously described as intended to supplement his own Disability Support Pension.
6. The Public Advocate was appointed limited guardian with the following functions:

(a) to decide where the represented person is to live, whether permanently or temporarily;

(b) to decide with whom the represented person is to live;

(c) to decide whether the represented person should work and, if so, the nature or type of work, for whom he is to work and matters related thereto;

(d) to determine what contact, if any, the represented person should have with others and the extent of that contact;

(e) to determine the services to which the represented person should have access; and

(f) to determine whether the represented person travels outside of Western Australia or Australia. This is the guardianship order under review.

What the Tribunal must decide on review of the orders

1. On review of the orders the Tribunal must determine the following:
   1. Does the represented person remain a person for whom orders can be made? Is the presumption of capacity of the represented person provided in s 4 of the GA Act displaced by the evidence and is the represented person a person for whom an administration order and or a guardianship order may be made?
   2. What are the wishes of the represented person?
   3. Is the represented person in need of a guardian and or in need of an administrator of his estate or are there less restrictive alternatives to meet his needs than the making of these orders?
   4. If administration and guardianship orders are needed who is suitable for appointment in these roles?
   5. What functions should be included in any orders made and when should the orders be reviewed?
2. The Tribunal made findings in 2018 that the represented person was by reason of his intellectual disability unable to make reasonable judgments about his estate and in need of an administrator of his estate (s 64(1) of the GA Act).
3. Only B challenged this finding at the time but did not point to or provide any other professional opinion or other evidence to support his contention that the represented person could make his own financial decisions.
4. The Tribunal preferred the expert professional evidence and other evidence to that of B's assertions which the Tribunal found were inconsistent with his own conduct.[1]
5. In the guardianship hearing on 24 August 2018 the Tribunal found that all the paragraphs of s 43(1)(b) of the GA Act applied to the represented person and he was a person for whom a guardianship order could be made and that he was in need of a guardian.
6. In coming to that decision the Tribunal relied on the professional opinion of the neuropsychologist which identified global cognitive impairments of the represented person. It was reported that the represented person needed prompting to undertake tasks of daily living and assistance to make decisions. His inability to live independently without support and supervision and the breakdown in informal family decision­making which had previously operated, was also taken into account by the Tribunal particularly the exclusion of D from decision­making for the represented person.[2]
7. Although in his written submissions dated 12 May 2020, B says he has always accepted the represented person's disability, as recently as the review hearing in January 2020, B continued to reject the opinion of the neuropsychologist who had assessed the represented person and had given the opinion that the represented person lacked capacity to make reasonable judgments about his financial and personal affairs.[3] B described the assessment as being conducted 'incorrectly and incompetently'.[4] B challenged the earlier findings of the Tribunal but acknowledged that he had not in the intervening period sought further professional assessment of the represented person's capacity nor had he sought review of the decisions made by the Tribunal to appoint a guardian or an administrator despite having legal advice.[5]
8. In his written submissions, B says that following recommendations made to him by his advocate from Carers WA, he has filed a written submissions in which he seeks to explain and clarify his statements made in earlier hearings before the Tribunal. He says his comments at the time of each hearing were not delivered appropriately and may have resulted in miscommunications. In these submissions B proposes himself as informal guardian and for appointment as administrator of the represented person's estate.
9. Although B asserted in the hearing in January 2020 that the represented person makes all decisions by himself, in his submissions he now says that the represented person 'will always require oversight, it is the nature of his disability'.[6] B's submissions also acknowledge that he has been highly protective of the represented person in other areas of the represented person's life.
10. B's statement that the represented person requires oversight is consistent with the earlier findings of the Tribunal that B's conduct demonstrates that B, in contrast to his previous statements to the contrary, understands and acts on the understanding that the represented person is not capable of managing his finances independently, requires supervision and assistance and at times intervention by others.
11. Although the reliability of this statement is questioned, there is an acknowledgment by B of the represented person's need for assistance in that B says that when he can no longer assist the represented person (because of his poor health) that he will welcome the Public Trustee's involvement.[7]
12. In the submissions filed by the advocate engaged by People with Disabilities on behalf of the represented person, areas of life in which it is said the represented person can make decisions himself were identified through discussions with the represented person and his parents. It does not appear that the represented person was interviewed separately.
13. It is submitted that the areas of life in which the represented person may need support are to decide which support workers work with him, who he will live with now and in the future, how he spends his money on big ticket items, health and medical, what goals he would like to work toward in his National Disability Insurance Scheme plan, where he would like to work now and in the future. It is reported that the represented person along with his parents identified that the represented person does not need any decisions made for him or in substitute for him.
14. Where there is any conflict regarding the decision­making capacity of the represented person between the material submitted by the advocate for the represented person and the neuropsychological assessment provided by the original applicant, the Tribunal prefers the expert assessment of the original applicant a neuropsychologist which was consistent with other evidence and is satisfied that the presumption of capacity of the represented person set out in s 4 of the GA Act is displaced and that the represented person remains a person for whom orders may be made.[8]

1. The represented person expressed the view to the Public Advocate's investigator in the original proceeding that he wished all family members to be involved in decision­making for him. This view was given when his parents were known to be in conflict about his finances.[9]
2. In the original hearing the represented person supported the appointment of S as the administrator of his estate.
3. In the course of the current review, the independent advocate was arranged for the represented person by the guardian to facilitate his views and wishes being put before the Tribunal.
4. The submissions filed is said to follow a comprehensive person­centred plan being developed for the represented person, together with both his parents, identifying the represented person's goals for the future including relationships, his work and accommodation, and ultimately living in his own home. The advocate reports that she initially met with the represented person and B and later with his mother and stepfather and that joint weekly meetings were then held over a period of months.
5. The represented person's parents are identified as people who can support him in decision­making. The represented person is keen to have S involved in the process going forward. His parents were described as unified in supporting the represented person.
6. There is no reference in the submissions to the financial circumstances of the represented person or to the matters regarding the removal of his funds from the bank.
7. The Tribunal notes the observations of the original applicant in his 2018 report that further assessment of the represented person's preferences as to who should assist him from the family (with his personal and financial decisions) was likely to be difficult given his current situation and his social vulnerability. His current situation being then and now is that he is living with B and B is his carer.
8. The submissions from the advocate indicates that the represented person's expressed wishes for support in his decision­making are consistent with his earlier statements to the investigator that the represented person would prefer all family members to be involved in his decision­making.
9. As no other family member proposes for appointment, the Tribunal considers that the represented person would prefer his father to the appointment of the Public Trustee or the Public Advocate as a substitute decision­maker for him.

Is the represented person in need of an administrator of his estate

1. The informal arrangements to manage the represented person's finances in place prior to the original proceedings before the Tribunal broke down when B requested the represented person's identification documents from D and she refused. Her refusal is understood to be because she believed that B intended to use the documents to purchase a property and to negotiate a loan and arrange a mortgage on behalf of the represented person. After the refusal to provide the documents, B then froze the bank accounts of the represented person and made allegations about the conduct of the represented person's finances by D.
2. The disruption in the long­established informal arrangements and the conflict between his parents about the management of the finances of the represented person prompted the original application.
3. The allegations made by B about D's management of the represented person's finances were not accepted by the Tribunal in 2018. B acknowledged this allegation in the hearing on 9 January 2020.[10] Although the conflict is now said to have been resolved between the parents, the history of conflict in the represented person's family about his finances does not in the view of the Tribunal support reliance in the future on informal means to manage his affairs.
4. The Tribunal has found and confirms on review that the represented person is and has always been reliant on others for the management of his financial affairs. This is conceded by B when he acknowledges that the represented person will always require supervision. The represented person's need for support in decision­making about 'big ticket items' is also acknowledged in the submissions of his advocate.
5. The represented person does not have capacity to give an Enduring Power of Attorney (EPA) according to the original applicant. Although B took issue with the professional evidence, this point was essentially conceded by him when the EPA, executed by the represented person prior to the original hearing and used by B to freeze the represented person's bank accounts, was destroyed following this advice.
6. The Tribunal is satisfied there is no less restrictive alternative than the appointment of an administrator of the represented person's estate and there is a need for an administrator to be appointed.
7. In the original decision the represented person's estate is described as not a large or complex one involving a pension income and wages from supported employment and accumulated savings.[11] The management of the estate is now made more complex by the withdrawal of the bulk of the represented person's savings from his bank account following the original order being made.
8. The PLO reports that on the day of the original hearing on 26 June 2018 when S was appointed as the administrator of the represented person's estate, that $57,239.09 was transferred electronically from one of the represented person's accounts to a second account and then $55,000 was withdrawn in cash at a suburban branch of the bank by the represented person.[12]
9. B confirmed in the hearing that he knew that S had been appointed as the administrator and he was disappointed with this decision.[13] Although B opposed orders being made, he now says that he should have been considered for appointment despite not proposing himself for appointment at that time.[14]
10. B says that he and the represented person went 'straight from [the Tribunal] to the bank' and the $55,000 was withdrawn.[15]
11. Although it is argued by B that it was the decision of the represented person to withdraw his funds from the bank when S was appointed his administrator, for the reasons that follow the Tribunal does not consider that this was the decision of the represented person but rather of B.
12. B described the represented person's funds as 'inaccessible' in correspondence to the Public Trustee on 18 October 2019. In the hearing on 9 January 2020, B said the funds were accessible to the represented person 'as and when he needs it'.[16] B also said that 'I try to provide [the represented person] direction into not spending savings but to accrue savings'.[17] The Tribunal considers that it is more likely than not that the funds are not directly accessible by the represented person.
13. Based on the represented person's conduct in the hearing when his sister was appointed the administrator of his estate, the Tribunal does not accept the assertion of B that the represented person was dissatisfied, angry or upset with her appointment.
14. It was put to B that the represented person appeared happy that S had been appointed as the administrator of his estate and this was acknowledged by B in the recent review hearing.[18] The Tribunal notes that the represented person declined to leave the original hearing when requested to do so by B preferring to remain and asked that his sister sit next to him and hugged her.
15. B agreed that the represented person supported the decision to appoint S as the administrator of his estate. B says the represented person 'later' 'regretted making that decision' in discussions with B.[19] Allegations now made about S by B, were not referred to by him in the original hearing when he strenuously opposed her or anyone's appointment as administrator and the Tribunal gives them no weight.
16. At the original hearing B waited outside the hearing room for the represented person. B says that he was angry and that the represented person became angry about the appointment of S as an administrator 'later'.[20]
17. Despite assertions to the contrary by B, the Tribunal finds that B instigated and facilitated the removal of the represented person's funds because of B's opposition to the appointment of an administrator of the represented person's estate.
18. The Tribunal does not accept that the represented person was able to or did act independently of B regarding the process to transfer and ultimately withdraw the funds. This conclusion is supported by the professional evidence of the original applicant regarding the represented person's functioning regarding financial matters and his reliance on others. The original applicant assessed the represented person and found the represented person experienced global cognitive impairment including particular weaknesses in reasoning and executive functioning skills.
19. The applicant reported that the represented person appeared to have always received assistance from his parents, that B provided direct oversight of financial transactions which B described as 'important'. The applicant reported that the represented person said he did not typically read documents before signing them and he gave grossly inaccurate estimates of costs which suggested he had a limited understanding of the value of money.[21]
20. The expert evidence of the represented person's lack of understanding of the value of money was supported by examples given by S in the original hearing and the reported interview of the represented person by the Public Advocate's investigator. B's contention that the represented person managed his own affairs was not supported at the time by other family members.
21. B has demonstrated through his conduct that the represented person was (and is) reliant on him as his carer and for supervision and support in respect of his financial affairs.
22. The Tribunal is satisfied that B instigated and facilitated the removal of the represented person's funds from his account and that it is more likely than not that B, and not the represented person, has effective possession and control over the funds and the represented person is reliant on B to access them. B confirms he knows the whereabouts of the funds and says that they will not be returned until the orders are rescinded.[22] B says that the represented person knows where the funds are held but intervened during the hearing to prevent the represented person answering questions about the whereabouts of his funds. B said that he was representing the represented person.[23] B's comments and conduct in the hearing confirm the Tribunal's view that B has control over the funds.[24]
23. It is likely since the represented person has a limited understanding of the value of money that the represented person does not have a full appreciation of the significance of the removal of his funds from his bank account.
24. There can be no justification for those funds, if they are still intact, not to be returned to the legal estate of the represented person.
25. The consequences of the past breakdown in informal decision­making for the represented person both in respect of his finances and later for personal decision­making illustrates in the view of the Tribunal, the vulnerability of the represented person. The represented person's identified vulnerability, his reliance on B and the removal of the represented person's funds causing the diminution of his estate requires the appointment of an administrator of his estate.
26. The Tribunal finds that that the represented person is in need of an administrator of his estate.

1. It is submitted by the Public Advocate that there are now less restrictive means to meet the represented person's decision­making needs.
2. It is correct to say that up until the breakdown in the family relationships prior to the original proceeding, that significant decisions had been made informally for the represented person including changes in his accomodation, consent to medical treatment and the arrangement of services.
3. Earlier reports before the Tribunal indicate that services and community engagement had been initiated for the represented person by D some years ago without any need for formal orders. Some concern was expressed that the represented person could have had access to a wider range of activities since living with B. However, there was no significant issue which gave rise to concerns about the informal arrangements in place for decision­making about personal matters for the represented person until the removal of the represented person's funds from his account and the represented person ceasing his long­term employment the day after the appointment of S as the administrator of the represented person's estate.
4. The conflict between B and D about the represented person's personal decisions is now said to be resolved and in her written submissions D supports B's role as informal guardian and as the administrator of the represented person's estate.
5. In the report prepared for the initial guardianship review hearing, the guardian reports that following the Public Advocate's appointment a number of the issues regarding the represented person's care were raised with both of his parents. The guardian reports that the issues raised included: lack of employment, social isolation, de­skilling and dependence and limited ongoing contact with family members. It is reported that these matters have now been addressed.
6. Although initially refusing to cooperate with the guardianship order, the guardian's report and B's submissions confirms that B was later able to work with the guardian.
7. B reports positive interaction with the delegated guardian and says that he is now allowing the represented person to access the community more independently following advice from the guardian.
8. Prior to the COVID­19 shutdown, the represented person had returned to work with his employer in a different setting, services were reported to be in place and the represented person had recommenced social activities. D is reported to consider that the informal supports provided by B are working satisfactorily and can be sustained into the future. This view is supported by the report of the individual advocate for the represented person who refers to working with both parents who are said to be unified in supporting the represented person.[25]
9. In these circumstances it is said there is no need for a guardianship order.
10. Despite the recent achievement of stability, largely it is assumed through the efforts of the guardian and the individual advocate, in the view of the Tribunal the proposed arrangement whereby personal decision­making for the represented person is managed informally by B is vulnerable to breaking down and not operating in the represented person's best interests. Essentially this is because the Tribunal has not accepted B's proposal for his appointment as administrator of the represented person's estate for reasons that follow.
11. The impact on the represented person when B does not achieve what he considers the appropriate outcome is demonstrated in B's past conduct.
12. In the view of the Tribunal there remains a risk to the personal circumstances of the represented person if B continues to fail to cooperate with the Public Trustee and coercive action is required to be taken against B.
13. In these circumstances, in the Tribunal's view, there is a continuing need for oversight by an independent guardian and decisions might need to be made again for the represented person about his services, employment and accommodation.
14. Further, B is in a position of conflict: he has the represented person's money in his control and will not return it to the estate.
15. B has already made and continues to make lifestyle decisions for the represented person informed by B's judgment of whether the represented person can afford the expenditure when B has no authority to make such decisions. The most obvious example of this is when B cancelled an interstate trip planned for the represented person because of the cost of $6,000. This decision was made by B when $55,000 was purportedly available to the represented person.[26]
16. B's positon of conflict would preclude his appointment as guardian and demonstrates in the view of the Tribunal why B acting as an informal guardian is not a less restrictive alternative to the making of a guardianship order and is not in the best interests of the represented person. Further, it is not appropriate that B act as informal guardian because he is not compatible with the appointed administrator of the represented person's estate.[27]
17. The Tribunal finds that the represented person is in need of a guardian.

If administration and guardianship orders are needed who is suitable for appointment in these roles

1. Rather than clarifying his earlier statements the Tribunal considers that much of B's recent written statement is in conflict with statements made in previous hearings before the Tribunal.
2. However, relevant to the review of the orders, B now says:
   • that he and D are 'communicating' and he has 'offered her full banking transparency of all of [the represented person's] bank accounts and assets';
   • that the represented person 'has access to his savings and is only used [for purchases] ... when his disability pension will not allow for'; and
   • that B would rather the [represented person's] savings were in the bank and would prefer that the funds be in a high interest bearing savings bank account as was the case before the orders were made.
3. Although it may be the represented person's wish that B be appointed as his administrator, the Tribunal is not satisfied that B can be appointed administrator as he proposes.
4. The obvious issue is, as noted, that B is in a position of conflict in respect of the failure to return the represented person's funds to his estate.
5. When determining the suitability of a proposed appointee for appointment as an administrator, the Tribunal is required to consider the criteria in s 68 of the GA Act.
6. Section 68 of the GA Act provides:

(1) An administrator (including a joint administrator) shall be ­

(a) an individual of or over the age of 18 years; or

who has consented to act and who, in the opinion of the State Administrative Tribunal ­

(c) will act in the best interests of the person in respect of whom the application is made; and

(d) is otherwise suitable to act as the administrator of the estate of that person.

(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 as 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.

(3) For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible ­

(a) the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;

(c) whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.

(4) The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.

(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.

1. The Tribunal finds that B is not suitable for appointment as administrator because of his past and continuing conduct. B's lack of cooperation with the appointed administrator of the represented person's estate was demonstrated when S was appointed and since the Public Trustee's appointment.
2. B undermined his daughter S when she was the administrator of the represented person's estate when B instigated and facilitated the removal of the represented person's funds from the represented person's account, when he acknowledges he knew S had been appointed as the administrator potentially exposing S to liability for the loss to the represented person's estate.[28]
3. B has refused to cooperate with the Public Trustee, the current administrator on any level. B refuses to disclose the whereabouts of the funds removed from the represented person's bank account and was evasive or refused to answer the questions of the PLO in the hearing about the location of the funds or whether the funds were intact.[29]
4. B says he ignores correspondence and emails from the Public Trustee.[30] Some emails from B to the Public Trustee are before the Tribunal and are consistent with his discourteous behaviour in hearings to officers of the Public Trustee. The Tribunal accepts the characterisation of B's communication with the Public Trustee's trust manager as personally abusive, inflammatory and intended to intimidate.[31] In the review hearing the PLO described B's communication with the Public Trustee as hostile.[32]
5. Although he now says he regrets his conduct, B has refused to cooperate with the Tribunal over the course of the entire proceedings before the Tribunal.[33] He has on two separate occasions interfered with the notice of hearing being given to the represented person and he has left hearings (twice) asking that the represented person leave with him. During hearings, B has invited the Tribunal to ask the represented person questions about the funds, but then intervened to prevent the represented person answering.[34]
6. Despite B's assertions in his written submissions that he will provide financial recordings of all of the represented person's assets for annual review if appointed administrator, B's demonstrated lack of cooperation with the Public Trustee and with the Tribunal since mid­2018, does not provide any reassurance that he would comply with the obligations on an administrator.
7. Those obligations include the requirement to account if required to do so by the Public Trustee. The requirement that an administrator account is at the discretion of the Public Trustee and fundamental to proper accountability for the management of an estate of a person unable to protect his or her own interests.
8. As part of that process, on appointment, an administrator must lodge a Form A with the Private Administrators Support team of the Public Trustee setting out the extent of the estate and the location of assets of the represented person. B has consistently refused to disclose the whereabouts of the represented person's funds. Even in his written submissions filed in May 2020 he continues to hide that information saying he is 'honour bound' not to disclose the location of the represented person's savings. The Tribunal rejects this statement entirely. B's assertions that the represented person's funds are safe, secure and not exploited are not persuasive since the Tribunal has not found B a candid, consistent, or credible witness.
9. In his written submissions B outlines how some of the represented person's funds have been spent but no supporting evidence is submitted. Even if the expenditure of the represented person's funds is as described by B, those decisions are not within his authority as he is not the appointed administrator of the estate.
10. In the past B has alleged that $22,000 of the represented person's funds were unaccounted for and criticised D for her management of the represented person's finances. He confirmed this belief in the January 2020 hearing. This issue prompted the original application before the Tribunal. In the current circumstances, where $55,000 of the represented person's money is now unaccounted for, B has not demonstrated any appreciation of the inconsistency of his position or insight into his conduct.
11. B agreed that holding the represented person's funds in cash is not a wise investment for him and in the January hearing described the situation as ridiculous.[35]
12. Any appointed administrator of the estate of the represented person would be bound to deposit the represented person's cash into an interest bearing account or other prudent investment to comply with obligations to act in the best interests of the represented person.[36]
13. The Tribunal finds that B has not acted in the best interests of the represented person in facilitating the removal of the represented person's funds which has diminished the represented person's legal estate. B acknowledges that the represented person is not earning any interest on his money and says he would prefer the funds to be in a high interest account, but this has not been done. Again, this decision is not in the represented person's best interests. The decision to remove the represented person from his paid employment following the appointment of S, also no doubt caused a loss to the represented person's estate because of the period of lost wages.
14. Finally, to the extent it was disclosed in the original proceeding, B's financial circumstances are more limited than those of the represented person's. B is reportedly on a Disability Support Pension, has no savings and has previously been bankrupt. His financial circumstances are also a relevant consideration when determining the appointment of an administrator.
15. For all these reasons B is not suitable for appointment pursuant to the criteria set out in s 68 of the GA Act and therefore cannot be appointed as the administrator of the represented person's estate.
16. The question arises whether the Public Trustee can be reappointed or whether the Public Trustee has a conflict and therefore cannot be appointed as administrator of the represented person's estate.
17. This issue arises because the PLO in the report submitted to the Tribunal in October 2019 advises that the solicitor at the Public Trust Office responsible for the legal matters in the estate of the represented person had advice from external counsel in 2018 and had sought and obtained approval of the acting Public Trustee to issue summonses in respect of the legal matters but had failed to do so or to take any further steps to follow the written advice or counsel. From July 2019 that solicitor was no longer employed at the Public Trustee Office. It would appear from the report of the PLO that no further action was taken in respect of the legal matters until about mid­2019 when a review of the former solicitor's files was conducted.
18. The PLO advises that the advice given by counsel in September 2018 was that a summons should issue to B (and to other persons) pursuant to s 55 of the Public Trustees Act 1941 (WA) (Public Trustees Act) which provides:

(1) The Public Trustee shall be entitled to require all persons to deliver, convey, transfer, or assign to him all property to which he is entitled.

(2) For the purpose of ascertaining whether any person is possessed of or entitled to any property which should be so delivered, conveyed, transferred, or assigned, the Public Trustee may institute such inquiries as he thinks proper, and may, by summons under his hand, require any person to appear before him and answer all questions that he may put to such person with reference to any property.

(3) If any person fails to so deliver, convey, or transfer all property as aforesaid, or if the procedure in the last preceding subsection provided fails to elicit the particulars required, the Public Trustee may take out a summons requiring such person, or any person who may be supposed to be in possession of information relevant to the matter under investigation, to appear before the Court for the purpose of being examined touching such matters, and to produce any documents.

(4) If the Court is of the opinion that any such person is possessed of or entitled to any property that should be so delivered, conveyed, transferred, or assigned as aforesaid, the Court may make an order requiring such person to deliver, convey, transfer, or assign all such property within such time as the Court may fix. Such order may be made in the absence of the person summoned, if the summons has been duly served upon him, or the Court is satisfied that reasonable efforts have been made to serve the same.

(5) The Court may order such person to pay all expenses of and incidental to such summons and any examination consequent thereon; and if the Court does not so order, then such expenses shall be paid out of the general funds of the estate concerned in priority to all other claims, or if the Court so orders, out of any particular portion of such funds.

(6) Any person who, without valid excuse, fails to attend pursuant to such summons, or who, upon attending refuses to be sworn or neglects to answer any relevant question put to him by or on behalf of the Public Trustee, or who, having been summoned to produce any documents, fails to produce the same without valid excuse, or, if so required by the Court, to hand such documents over to the Public Trustee, or who disobeys any order made by the Court upon the hearing of such summons, shall be guilty of contempt of court; and the Court may make an order for the arrest of such person and his imprisonment, either for such period as the Court thinks fit or until he has purged his contempt to the satisfaction of the Court. The Court may also order such person to pay the expenses of such proceedings.

(7) Any such person wilfully neglecting to comply with this section shall be liable to a penalty not exceeding $400, to be recoverable by civil action, at the suit of the Public Trustee.

(8) In this section the term documents includes books, papers, deeds, documents, and any writings whatsoever.

1. The Public Trustee has, by order of the Tribunal, been vested with plenary functions and has the authority to deal with the represented person's estate as though he were the represented person and the represented person were of full legal capacity subject to some limitations.[37]
2. Although the property of the represented person does not vest in the administrator as a trustee, the Public Trustee as administrator has the authority to take possession of all or any of the property of the represented person.[38]
3. There has been delay in following the advice given in September 2018 and the represented person may have potentially suffered some detriment (the loss of his funds from his estate and interest income forgone).
4. It might be said that direction given has not been complied with and the actions recommended by counsel to be taken by the Public Trustee to attempt to recover the represented person's funds have not been taken and in those circumstances the represented person may have a claim against the Public Trustee for this failure. In these circumstances the Public Trustee could not be appointed as the administrator at least of that part of the represented person's estate being any claim against the Public Trustee. In cases such as these, the Public Advocate as the administrator of last resort has been appointed as the administrator (see for example RJK [2019] WASAT 109).
5. It is argued by both the PLO and the Public Advocate that the appointment of the Public Advocate in this case is not warranted.
6. The Public Trustee argues that even had the solicitor followed the advice given at the time, that the result would have been the same since B has not over this time cooperated with the Public Trustee or the Tribunal and B maintains that he will not cooperate and return the money unless the administration orders are revoked. The Public Advocate's Principal Investigator Advocate supports the position of the Public Trustee.
7. It is the view of the Tribunal that B's continued lack of cooperation is not to the point and is why the issue of a summons is necessary in this case.
8. The proposal that the Tribunal be reconstituted as a Full Tribunal and the matter proceed as a s 17A review under the GA Act (on the basis that B opposes the orders although he has not sought review) was to enable the coercive powers available under Div 7 and 8 of the State Administrative Tribunal Act 2004 (WA) to be engaged. However, respectfully, it is not the role of the Tribunal but of the administrator to manage the estate of the represented person and to pursue the recovery of the represented person's property.
9. It is the case that B's cooperation with a summons has not been tested and although as noted there has been delay in following the advice given to the Public Trustee that advice could yet be followed. Given the powers under the Public Trustees Act, the Tribunal considers that the Public Trustee is best placed to undertake this role on behalf of the represented person as the administrator of his estate notwithstanding the potential conflict.
10. Consistent with the approach taken by the Public Trustee in other matters associated with the conduct of the former solicitor the Tribunal is confident that should any loss to the represented person's estate be identified that the Public Trustee would make good any loss.
11. In respect of the review of the guardianship order, having determined that the represented person is in need of a guardian for the reasons given and there being no one else proposed for appointment as guardian, the Tribunal confirms the appointment of the Public Advocate as limited guardian of the represented person.
12. The Tribunal considers that a plenary administration order is necessary and appropriate in the current circumstances of the represented person.
13. The Tribunal is satisfied that a limited guardianship order with the following functions will meet the present needs of the represented person.
14. The represented person has a life­long intellectual disability and the Tribunal considers in light of the history of this matter that he is likely to need independent substitute decision­makers in the longer­term. For this reason the orders are made for the longest period possible.
15. For these reasons the Tribunal makes the following orders:

GAA 4026 of 2019

The Tribunal declares that the represented person, JA is:

(a) unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and

(b) in need of an administrator of his estate.

The Tribunal orders:

Administration

The administration order dated 3 July 2018 is amended so that it now reads:

1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2. The administrator is authorised to expend up to a total amount of $300 per annum on gifts on behalf of the represented person.
3. The administrator is directed to take immediate steps to secure the estate of the represented person including $55,000 withdrawn from the National Australia Bank account of the represented person on 26 June 2018 on the day of the appointment of an administrator of the estate of the represented person and the declaration being made under s 64 of the Guardianship and Administration Act 1990 (WA).
4. The administration order is to be reviewed by 30 June 2025.

GAA 2666 of 2019

The Tribunal declares that the represented person, JA is:

(a) incapable of looking after his own health and safety;

(b) unable to make reasonable judgments in respect of matters relating to his person;

(c) in need of oversight, care or control in the interests of his own health and safety; and

(d) in need of a guardian.

The Tribunal orders:

Guardianship

The guardianship order dated 24 August 2018 is amended so that it now reads:

1. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:

(a) To decide where the represented person is to live, whether permanently or temporarily;

(b) To decide with whom the represented person is to live; and

(c) To determine the services to which the represented person should have access.

1. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
2. The guardianship order is to be reviewed by 30 June 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[8] JA at [33],[37] and [40].

[9] Public Advocate's investigation report dated 22 June 2018.

[12] Submissions of the Principal Legal Officer dated 8 October 2019.

[21] Report of neuropsychologist Dr JS dated 12 February 2018.

[25] WA Individualised Services submissions page 3.

[31] Email correspondence Executive Officer Public Trustee to B dated 18 October 2019.

[33] Submissions dated 12 May 2020, page 1.

[36] Section 70(1) of the GA Act. Pursuant to cl 4 of Sch 2 Pt A of the GA Act, an administrator may make an investment in securities in which a trustee may by law invest. This requires an administrator to make an investment of the represented person's funds that a prudent person would make for another.

[37] Section 71(2) and s 72(3) of the GA Act.

[38] Pursuant to s 71(3) and s 72(1) Pt A of Sch 2 of the GA Act.