MW [2015] WASAT 106 (29 September 2015)

Guardianship and Administration Act 1990 (WA), s 4, s 68

On an application by the daughter of MW, the Tribunal reviewed an order by which the Public Trustee had been appointed plenary administrator of the estate of MW. Leave had been granted only in respect of the issue as to who should be appointed as administrator of MW's estate. The daughter sought review of the order as she had become frustrated with the progress of the property settlement negotiations between the Public Trustee on behalf of the represented person and her mother. She proposed a family friend to be appointed to bring the negotiations to an applicable conclusion in the interests of all the family. The Tribunal accepted that the proposed appointee was concerned for the best interests of the represented person but determined that he lacked sufficient expertise and independence to be appointed as administrator while the property settlement negotiations were underway. The Tribunal reappointed the Public Trustee as the administrator.

1 These are the reasons for the decision of the Tribunal on a review of an administration order made in respect of the estate of MW (represented person) determined on 2 April 2015.

2 The daughter of the represented person (applicant) sought and was granted leave to seek review of an order dated 19 December 2013 by which the Public Trustee was appointed plenary administrator of the estate of the represented person. Leave was granted on condition that the review was limited to the question of who should be appointed administrator of the estate.

3 The represented person has a psychiatric diagnosis of long standing. An administration order was first made in December 2013 following an application by his daughter, the current applicant, following a hospital admission and encouragement by the treating psychiatrist that arrangements needed to be made to protect the represented person's finances due to his illness.

4 All proceedings commenced under the Guardianship and Administration Act 1990 (WA) (GA Act) are subject to principles set out in s 4 of the GA Act which provide that the primary concern of the Tribunal must be the best interests of the represented person.

5 In considering the present review, the other principles in s 4 of the GA Act which require particular consideration are the direction to ascertain the wishes of the represented person and to make orders which are least restrictive of his freedom of decision and action.

6 When considering who should be appointed as an administrator of the estate, the Tribunal must consider the suitability of the proposed appointee, including the ability of that person to perform the functions required in the administration of the estate: s 68 of the GA Act.

7 The applicant said that although she initially supported the appointment of the Public Trustee as the administrator, she had become frustrated with the lack of progress in the property settlement negotiations between the Public Trustee, on behalf of the represented person, and her mother. She explained that she had approached a family friend, MR, who had the necessary skills and understanding to manage the estate, and he had agreed to act as administrator of the estate of the represented person. She said that MR's appointment had the support of all the family, including the represented person, her mother, and her aunt (the represented person's sister).

8 In the course of the hearing, the applicant said that the relationship between her parents was an amicable one with her mother providing ongoing practical support to the represented person. The applicant said that the family had been through a lot, including the loss of both her brothers. Although she acknowledged that his decisions were driven by his illness, she explained that she and her mother had not been treated well by the represented person for the majority of the preceding 10 years. She said that the represented person had wasted a lot of money on purchases, and unsuccessful business ventures in which he had no experience. As the represented person is a veteran and a gold card holder, he has entitlement to services. Further, given his health, he would not be travelling overseas or doing the normal things people might do in retirement. She submitted that 'fighting it out' in the Family Court would benefit no one. She said she was not saying that her mother would withdraw support for the represented person if the property settlement was not concluded, but that a person could '... only be pushed so far and have to fight so hard before things fall apart': T:10; 02.04.15. She submitted that financial considerations were not the only considerations to be made in the best interests of the represented person and that his support network of the family and the impact on them of the history and the present circumstances needed to be considered in decisions made.

9 The applicant said that MR knew all about the history as a close family friend but agreed he was not aware of previous property settlement proposals or the family law matters.

10 MR said he had not inspected any of the material filed for the review, including the reports of the Public Trustee, and was not aware of the background of the family law matters, but he did not see this as a barrier to a quick resolution of the property settlement. If appointed, he would appraise himself of the situation and make decisions in conjunction with the represented person and his family.

11 MR had been asked to file written proposals for the management of the estate and did so on 5 March 2015.

12 MR is an experienced business person and has operated a small business for some years. He also has had significant community involvements, including serving as treasurer and president of a local club. He proposed, in his written submission and his oral submissions at the hearing, a closer involvement with the represented person. Although he said he understood that the Public Trustee had done a 'great job', that he could provide a more 'hands on' and personal approach as a close friend that would be a comfort to the represented person. As a close friend, he had been aware of the history of the whole family over many years. His interest was in providing support to the family, who had all suffered trauma, in an effort to assist them to get on with their lives. He said he did not believe there would be difficulty in getting the represented person and his former spouse to agree to a property settlement. He said that if he could sort out the property settlement quickly and efficiently it would be a major achievement.

13 The Public Trustee's trust manager said that the issues raised by the applicant had not previously been raised with the Public Trustee. She reported that the main issues in the management of the estate were the outstanding property settlement and debts incurred by the represented person, including a business loan for a previous business operated by the represented person and legal fees to a former solicitor who had advised him on the family law matters.

14 Counsel for the Public Trustee reported that prior to the Public Trustee's appointment as administrator in December 2013, there had been attempts to obtain Family Court orders in relation to the property settlement by consent. In April 2013, the proposed split in an application filed by the represented person was that the represented person was to receive 13.5% and the spouse 86.5% of the assets. The Family Court had, in response to the application filed, sought advice from the parties as to why this was considered just and equitable. Following this, there were further negotiations, and a further proposal was prepared but not finalised at the time of the appointment of the Public Trustee. The second proposal was for a division of the property; 38% to the represented person and 62% to the former spouse.

15 The represented person acknowledged that he instigated the original proposal and it is accepted that the spouse was not legally represented at the time she signed the application for orders by consent.

16 Counsel said that family law advice had been sought and obtained by the Public Trustee regarding the division in the second proposal, and it too was not regarded as sufficient for the represented person. A further proposal had been received prior to the hearing of the review, and this had been considered and would be put to the spouse, but the Public Trustee did not want to pre-empt the outcome of the review.

17 The trust manager said that the spouse had been reluctant to sell the family home, which was the major asset, until the property settlement division was known. This was denied by the applicant who said that there was, however, concern about the delay in funds being realised to enable both her parents to purchase properties rather than renting for lengthy periods and keeping their furniture in storage.

18 The applicant said that if the family were managing the settlement, the split would be 50/50 which would allow both parents to 'cut [their] losses, [and] walk away and have a happy rest of [their] life': T:21; 02.04.15.

19 In the circumstances that a new offer has been formulated regarding the proposed division of the marital property of the represented person and his spouse, and is about to be put to the spouse, it is appropriate that the appointment of the Public Trustee not be changed at this time. It may be that this new proposal is acceptable to the spouse, who is now legally represented, and if so, an application can then be made to the Family Court for consent orders to bring this matter to a conclusion.

20 If agreement is not reached at this point, the Tribunal still considers that the Public Trustee should remain as the appointed administrator of the estate until the property settlement is finalised.

21 The Tribunal accepts that the most significant issues in the management of the estate are the outstanding property settlement and the debts of the represented person. Given this, it is essential that the represented person have an experienced administrator with the necessary knowledge and expertise to address these issues on his behalf. Although MR is an experienced businessperson and is very well intentioned regarding the ongoing support the represented person requires, the Tribunal is not satisfied, following the questions he raised in the hearing about the family law matters, that he has the requisite knowledge and expertise to deal with the property settlement. He was also not aware of all the background and did not make proposals regarding the division of the property, other than to say he would engage with the represented person and the family to resolve the issue. It is clear from the history of this matter that the represented person is unable to protect his own interests and, as such, this proposal is problematic.

22 MR states his intention to bring the property settlement to a conclusion in the interests of all the family. In this approach, there is a risk he would place emphasis on the needs of the spouse and the applicant in arriving at a resolution. Although the applicant's submission that the financial considerations are not the only matters to be considered in reaching the property settlement, it can be inferred from her statements in the hearing that the represented person's financial needs are lesser than the spouse. There is, in the judgment of the Tribunal, a need for an appointed administrator to act without conflict in the interests of the represented person. Attempting to balance the needs of others with those of the represented person is not the role of an appointed administrator. There is an obligation on any administrator to place the interests of the represented person uppermost.

23 The sensitivity of the situation is acknowledged, especially the history as described by the applicant and the trauma the family have suffered. They are now confronted with the need to sell the family home in which the former spouse lives, against the background that the applicant says the represented person has wasted assets of the marriage. There is considerable complexity in this and other aspects of the estate.

24 There is an obvious need to bring the property settlement negotiations to a conclusion without delay and without incurring unnecessary legal costs, but this cannot be at the expense of proper consideration of the represented person's legal rights and his long-term financial interests.

25 Despite it being a less restrictive order, and consistent with the wishes of the represented person that MR be appointed as administrator, the Tribunal is not satisfied that MR is able to perform the functions of the administrator as presently required in the management of the represented person's estate. In the judgment of the Tribunal, MR lacks the knowledge and expertise and the necessary independence to discharge the functions of administrator in respect of the property settlement. Once the property settlement has been concluded, if he is still willing to propose his appointment, the Tribunal will again consider that proposal.

26 The review date is to remain as at December 2105 as it is possible that the property settlement will have been concluded by that time.

1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed the plenary administrator of the estate with all the powers and duties conferred by the Act.
2. This order is to be reviewed by 19 December 2015.

I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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