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[2021] SACAT 82
General information, not legal advice.
SA Civil and Administrative Tribunal
2021-11-16
Original judgment source is linked above.
Re PCM [2021] SACAT 82
Member Clark (order dated 17 March 2021, 2021/SC000688)
The applicant sought an internal review of a decision of the Tribunal to dismiss an application for administration orders for the protected person, the applicant's mother. An enduring power of attorney had been executed by the applicant's mother appointing one of her other children as her attorney.
The applicant argued that the Public Trustee should be appointed as his mother's administrator because money was missing from his mother's estate and there has been a break down in the relationship between his mother and her appointed attorney. The Tribunal dealt with permission to proceed with an internal review as a preliminary issue.
This decision considered the application of the principles of permission to proceed with an internal review, an extension of time to bring an internal review and administration orders.
Internal review - Guardianship and administration - Administration orders
Internal review - Preliminary applications - Extension of time
Internal review - Preliminary applications - Fresh evidence
LE v The Office of the Public Advocate & Ors (No 2) [2021] SASCA 132
This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.
Made under the Guardianship and Administration Act 1993 s 64(c)
1. The applicant, NBV, seeks an internal review of a decision of the Tribunal to dismiss an application for administration orders. An administration order had been sought to be made for the protected person, PCM. I will refer to this decision as the "original decision". Some brief background about the original decision is required.
2. PCM is a 71 year old woman who resides in a nursing home. From her first marriage she had two sons, NBV and FBT, with whom she was not continuously in contact after they became adults, but with whom she has had some contact in recent years. She re-married and has two adult step-children, one of whom is DMX and the other is GYK. Her husband died some time before 2018. In 2018, PCM granted power of attorney to DMX and, in the event of DMX's death or incapacity, GYK. By February 2020, when she was already residing at the facility, her general practitioner found her to have severe and deteriorating cognitive loss of capacity. The applicant applied to the Tribunal for an order appointing an administrator to manage her estate. That application entailed allegations that DMX had mismanaged the estate. The applicant wanted the Public Trustee appointed as administrator. DMX denied the allegations or any wrongdoing and opposed the order sought. PCM was unable to participate in the hearing by virtue of her ill health and incapacity. A Tribunal Member visited her but was unable to take any meaningful evidence from her about the proceedings. The Tribunal found that although PCM required a substitute decision-maker for her financial affairs, such a requirement was achieved by the valid appointment of an attorney under the 2018 instrument. The Tribunal found that there was no evidence of financial maladministration. The Tribunal declined to set it aside and declined to appoint an administrator.
3. NBV sought an internal review of the Tribunal's decision declining to appoint an administrator to his mother's estate.
4. The legal framework within which these events occurred is as follows. The Tribunal may appoint an administrator under the Guardianship and Administration Act 1993 ("G&A Act") if it is satisfied that the person who is the subject of the application has a mental incapacity and that an order "should be made".[1] The Tribunal does not have the power to make declarations with respect to the validity of, or revoke, instruments by which powers of attorney are conferred. Where a person applies to the Tribunal for an administration order in respect of another person, the Tribunal may consider the existence, effect and circumstances of any instruments such as powers of attorney. The circumstance in which an administrator might be appointed where there is a power of attorney in place include where the attorney does not wish to continue on in the role but does not want to apply to the Supreme Court, or if there is an inability to locate the attorney, or evidence of maladministration by an attorney. If an administrator is appointed in circumstances in which there is an instrument such as a power of attorney in existence under which another person is appointed, the Tribunal may invite the administrator to consider revoking the power of attorney particularly if the Tribunal has been made aware that no person has made an application to the Supreme Court for a declaration in relation to, or revocation of, the power of attorney.
5. In the original proceedings, the Tribunal was required to consider the appointment of an administrator against the background of there being a person appointed as power of attorney who sought to remain as such. The Tribunal in this case determined that notwithstanding PCM's lack of capacity and need for a substitute decision-maker in respect of her financial affairs, there was no need to appoint an administrator because of DMX's power of attorney.
6. At a directions hearing on 30 July 2021 for the internal review, the Tribunal granted the Adult Safeguarding Unit ("ASU") the rights of an interested party for the internal review. It did so after the applicant lodged a complaint with the ASU about the administration of PCM's estate and the ASU commenced an investigation. An interested party has the right to be notified of the hearing of the proceedings.
7. At a directions hearing on 28 September 2021, the Tribunal made the following directions:
7.1 The protected person's representative is to file a statement outlining her visit with the protected person including any issues that were raised and the protected person's reactions to these issues during the visit, by no later than 4 pm on 5 October 2021. The protected person's solicitor is to file a copy of this statement with the Tribunal and to provide a copy to the other parties in this proceeding.
7.2 The applicant, through his representative, is to file a document of no more than two pages in length that outlines the grounds of review upon which he seeks to rely to establish that the original decision was not correct or preferable, by no later than 4 pm on 19 October 2021. The applicant is to file a copy of the grounds of review with the Tribunal and to provide a copy to the other parties in this proceeding.
7.3 Following receipt of the documents outlined in directions 1 and 2 above, the Tribunal will consider the issue of leave to proceed to an internal review without a further oral hearing unless the Tribunal considers that an oral hearing, or further written submissions, are necessary.
8. The protected person's appointed representative, Ms Simpson of the Legal Services Commission, filed a statement setting out the events of her visit to the protected person as directed. That account has limited relevance to the issue of a grant of permission to proceed. In summary, the protected person was not able to communicate with Ms Simpson in a manner that conveyed much information. There was no oral or written communication. On some occasions the protected person squeezed Ms Simpson's hand, or the hand of a staff member in the room, but not so as to shed light upon the issues for determination by the Tribunal. In summary, unless some greater communication of her views is achieved (which is possible but, in light of the medical evidence of deterioration, appears unlikely), the determination of the substantive hearing of this matter will occur largely without the current views of the protected person.
9. The grounds of review that the applicant filed on 19 October 2021 are:
The Tribunal failed to give sufficient weight to relevant evidence before it at the time of the hearing on 17 March 2021 concerning the unaccounted amount of $61,419.59; and
There is relevant fresh evidence, which was not before the Tribunal at the time of the hearing on 17 March 2021, concerning the unaccounted assets totalling $593,302.00, the allegation that [DMX] is unfit / it is inappropriate for [DMX] to manage his other's affairs, and the deterioration in that relationship.
10. The applicant provided a covering letter with the outline of his grounds of review. In the letter, he states that the ASU had commenced an investigation into the circumstances of the protected person in April 2021. The letter requests that the Tribunal defers its consideration of the issue of permission and the substantive internal review until the ASU's investigation is complete. Before considering the issue of permission, it is necessary to first consider this request.
Request to defer decision until the Adult Safeguarding Unit's investigation is complete
11. The applicant argues that the Tribunal's consideration of the issue of permission should be deferred because the evidence gathered and findings made by the ASU following its investigation may be relevant to his application for review.
12. The applicant does not indicate what types of evidence he anticipates the ASU will uncover or that the ASU have uncovered from its investigation and its relevance to the internal review. The Tribunal additionally has not received an indication from the applicant or the ASU as to when the investigation might be completed. The Tribunal has not heard from the ASU directly about its investigation.
13. The Tribunal has an obligation to deal with proceedings promptly.[2] The nature of the internal review hearing is that of a review of a past decision to ascertain whether it is the correct decision. Due to the uncertainty of the timeframe within which the ASU will finish its investigation and the type of evidence that might be led, it is not appropriate to delay this proceeding further. Nothing precludes the ASU from bringing its own application for an administration order at a future point in time if it uncovers evidence or makes findings that an administration order should be sought for the protected person, or precludes NBV from bringing an application in the future based on evidence that may come to light. The exercise of discretion in relation to an internal review in respect of a guardianship or administration order must take into account the fact that a change of circumstance provides any person with a basis for seeking the revocation or variation of an administration or guardianship order at any time during the life of the order.
14. I have not directed or permitted the ASU to file any submissions on the question of permission for that reason.
15. I refuse the applicant's request to delay the consideration of the issue of permission pending the outcome of an investigation by the ASU. Further, as far as the Tribunal is aware, the applicant has not applied to the Supreme Court for a declaration or revocation of the power of attorney.
16. Before a matter may proceed to an internal review, the applicant must obtain the Tribunal's permission to proceed as outlined in s 70(1a) of the South Australian Civil and Administrative Tribunal Act 2013 ("SACAT Act") and s 64(c) of the G&A Act.
17. The requirement for permission is effectively a filtering process by which applications are reviewed in a preliminary way to determine they warrant being considered in more detail. In deciding whether to grant permission, the Tribunal is guided by the overriding principle of the interests of justice. This requires the Tribunal to decide whether the application for review reveals that there was or may have been unfairness to one of the parties, or that the Tribunal has made a mistake of law or fact. In respect of the facts, the task includes considering whether fresh evidence would be provided to the Tribunal on the review that, if received, might change the outcome. The Tribunal will also consider the substance of the dispute including whether there is a significant principle or interest at stake.
18. Sometimes the question of permission is most efficiently dealt with as a preliminary issue. A refusal of permission brings an end to proceedings and may avoid a lengthy hearing of an application that has no substance. At other times it is as efficient to decide permission at the same time as hearing the substantive challenge to the original decision, usually because the issues are too complex to review in a preliminary way or because the substantive hearing can be listed very quickly and will not be lengthy.
19. In this matter, I have proceeded to determine the issue of permission as a preliminary issue and to consider it wholly on the written materials provided by the parties. At the last directions hearing, the parties indicated that they were unopposed to the Tribunal proceeding in this manner. Further, the applicant has had the assistance of legal advice and representation for his submissions and there is a substantial number of documents that have been provided for the internal review.
20. In considering the issue of permission, it is necessary for the Tribunal to take into account that NBV requires an extension of time to bring the internal review. Section 70(2) of the SACAT Act states that an internal review must be instituted within one month of the making of the decision under review however the Tribunal may dispense with the requirement if it is satisfied that it is just and reasonable in the circumstances. The original decision was made on 17 March 2021. The application for review was filed just under four months later, on 8 July 2021.
21. The applicant must therefore satisfy the Tribunal that it is just and reasonable that he is both granted an extension of time to bring the review and granted permission to proceed to an internal review.
Consideration of the grounds for seeking an internal review
22. In his written submissions filed on 17 September 2021, the applicant outlines the reasons for the delay in filing his application for review. He states that he was unaware of the timeframe set for initiating an internal review due to his lack of legal experience and familiarity with the Tribunal's processes. Additionally, he and his family were suffering from a bad flu at the time that hampered his ability to seek legal advice. The applicant further states that his relationship with DMX has worsened since the original decision was made and therefore it would be just and reasonable to grant an extension of time to bring the review.
23. In the document filed on 19 October 2021, the applicant outlines the following bases for the internal review:
23.1 The Tribunal failed to give sufficient weight to relevant evidence before it at the time of the hearing on 17 March 2021 concerning the unaccounted amount of $61,419.59 ("first ground of review"); and
23.2 There is relevant fresh evidence, which was not before the Tribunal at the time of the hearing on 17 March 2021, concerning the unaccounted assets totalling $593,302.00, the allegation that DMX is unfit / it is inappropriate for DMX to manage his Mother's affairs, and the deterioration in that relationship.
Ground 1 - missing money not properly addressed in the original proceedings
24. In relation to the applicant's first ground of review, the applicant argues that a sum of money has gone missing from the protected person's funds or has been unaccounted for. The applicant argues that a sum of $831,419.59 was transferred to the protected person upon settlement of the sale of her house in mid-2019. There was evidence before the Tribunal in the original proceedings of the following transactions and payments from the protected person's estate:
24.1 $550,000 was paid to the protected person's nursing home as part of a bond payment;[3]
24.2 $40,000 was transferred as gifts to the protected person's children;[4] and
24.3 $180,000 was transferred to a financial advice service for the protected person's superannuation and shares.[5]
Accordingly, there was no evidence before the Tribunal about what use has been put to the remaining amount of $61,419.59 from the settlement sum.
25. In his written submissions, the applicant expresses concerns that his mother's funds have been misappropriated while DMX has been acting as her enduring power of attorney. The applicant acknowledges that he has no positive evidence that the funds have in fact been misappropriated. He says that he has made numerous requests to DMX for his mother's bank records so that he can see how the protected person's money is being used however no records have been provided to him.
26. DMX contests the submission that the protected person's money has been misappropriated. Although she is not required to provide the applicant with any information about the protected person's finances, DMX states that she has sent emails to the applicant outlining the transfers of money that have been made from their mother's estate.
27. Further, she highlights that there is an absence of any evidence that she has been misusing the protected person's funds as her power of attorney. DMX refers to a letter from the protected person's nursing home, managed by Allity, that was provided to the Tribunal in the original proceedings and a letter from Allity to the Aged Care Quality and Safety Commission dated 5 August 2021. The letters outline Allity's views that there have been no issues with the payment of bills and that there are no concerns about the mismanagement of the protected person's finances by her appointed attorneys.
28. To obtain permission to proceed, NBV is required to establish that it is reasonably arguable that a person other than DMX should have been appointed to administer his mother's affairs because of wrongdoing in the exercise of powers as her power of attorney.
29. In the original proceedings, the applicant argued that $100,000 had gone missing from his mother's estate after the sale of her house. The applicant had formed this view because the protected person had told her son, FBT, that this amount was no longer in her account. The applicant and his brother consequently requested copies of their mother's bank statements from DMX however these were never provided to him.
30. DMX had given evidence at the original hearing about the transfers of money that she arranged following the sale of the house as outlined in paragraphs 24.1 - 24.3 above. She also described other expenses that the protected person has without quantifying the specific amount of the expense, such as the regular fees being paid to a financial advisor for the management of the protected person's share portfolio and super fund.
31. The Tribunal Member that conducted the original hearing acknowledged that the enduring power of attorney document that was signed by the protected person, and found to be valid by the Member, did not include any conditions requiring the appointed attorneys to provide regular reports of the protected person's finances.[6] Accordingly, DMX was not required to provide bank statements or an outline of all of the protected person's transactions to the applicant.
32. The Tribunal Member had also heard evidence from representatives of the protected person's nursing home that confirmed that there were no issues raised by the protected person or concerns from her carers about the mismanagement of her finances. The representatives had also stated that the protected person had expressed to them on multiple occasions that she was content to have DMX involved in her finances.
33. In the face of this evidence and the absence of evidence to the contrary, the Tribunal found that "[DMX] is carrying out her duties as attorney as required by the Power of Attorney and Agency Act 1984. There was no evidence presented at the hearing by any party that [DMX] is in breach of her responsibilities and that the current arrangements should be disturbed."[7]
34. The applicant is, in effect, trying to re-argue this issue on internal review but with a revised amount of money. By arguing that no evidence or explanation was provided about what happened to the remaining $61,419.59 from the sale of the house, he is suggesting the Tribunal was required to obtain such an explanation before making its decision. As correctly concluded by the Tribunal Member in the original proceedings, there is no basis for drawing such a conclusion.
35. The applicant has not provided any evidence to the Tribunal, both in the original proceeding and the internal review, that suggests a misuse or misappropriation of the sum of money. With the absence of such evidence in the original proceedings, there was no reason for the Tribunal to compel the power of attorney to produce a statement of the protected person's accounts or an outline of all of the protected person's transactions.
36. In an internal review, the Tribunal's objective is to consider whether the original decision is the correct and preferable decision. The original decision was that the Tribunal was not satisfied that an administration order should be made for the protected person. The Tribunal was not satisfied that the current arrangements should be disturbed based on the evidence before it about DMX's management of the protected person's finances. The mere fact that no account was provided for what happened to the remaining $61,419.59 sum does not directly go to the question of whether the original decision is the correct and preferable one. I refuse permission for the applicant to proceed with this ground.
37. The other basis for seeking the internal review is that there is relevant fresh evidence that the Tribunal should consider. The applicant submitted a number of documents as material he would seek to have the Tribunal rely upon if he were permitted to proceed with his internal review. This included evidence of text messages between DMX and the protected person, one of the protected person's Centrelink statements, and documents that had already been provided in the original proceedings such as the settlement statement for the sale of the protected person's property and emails provided by DMX.
38. The applicant states that the fresh evidence will establish three things. It is convenient to address these separately:
38.1 the protected person had assets totalling $593,302 that have not been accounted for;
38.2 that DMX is unfit or it is inappropriate for DMX to manage her mother's affairs; and
38.3 that there has been a deterioration in the relationship between DMX and the protected person.
39. The Tribunal has only reviewed the documents in a manner that allows them to be considered at face value. Their context and provenance has not been established. They are reviewed by the Tribunal only insofar as has been necessary to assess whether the applicant has an arguable case.
40. The applicant has provided an extract of the protected person's Centrelink statement dated 31 August 2018 in which the protected person's total assets are described as being $593,302. In this argument, the applicant appears to be advancing a similar basis for the internal review as the basis advanced for the aforementioned first ground for the internal review i.e. that the protected person had a sum of money that has not been accounted for.
41. I refuse permission to proceed in relation to this argument for the same reasons that I refuse permission for the first ground for the internal review. Absent any evidence that there has been a misuse of these funds, a mere outline of the assets that the protected person had at a point in time as assessed by Centrelink does not demonstrate a reasonably arguable case that the funds have been misappropriated or that the Tribunal should have made, or should now make, an administration order appointing another party to administer the estate.
Suitability of power of attorney and her relationship with the protected person
42. The applicant seeks to argue that the nature of the relationship between DMX and the protected person is such that it would not be appropriate for DMX to continue being responsible for making financial decisions on behalf of the protected person.
43. The fresh evidence that the applicant seeks to lead to demonstrate this point is text messages between DMX and the protected person. The text messages predate the original decision. No explanation is given as to why this evidence was not raised during the original proceedings.
44. The consideration of fresh evidence on internal review is at the discretion of the Tribunal.[8] The proposed fresh evidence is sought to be led to demonstrate DMX's attitude towards her role as the protected person's appointed power of attorney.
45. The nature of the relationship between DMX and the protected person and its relevance to the application for an administration order was not an issue that was raised in the original proceedings.
46. Without having heard evidence that would no doubt provide relevant context to the text messages, it may be concluded that the text messages do not give rise to an arguable case that DMX is unsuitable to be discharging the functions of power of attorney such as to warrant the appointment of an administrator. The text messages, even without context, demonstrate frustration by DMX at the difficulty of managing the estate in circumstances in which she perceives that PCM is undermining her. There is no evidence that she has, or is proposing, to make inappropriate financial decisions based on that frustration.
47. For completeness, some observations about broader issues are required. In his written submissions, the applicant argues that the present arrangements are inadequate because of issues that he has noticed with the level of care that his mother is receiving at the nursing home where she resides. He is also dissatisfied with the level of access that he and his family are given to the protected person at the nursing home. These arguments conflate the issues of decision-making regarding the protected person's health care (which might give rise to guardianship orders) and decisions regarding her finances (which are dealt with under the power of attorney). The original proceedings only concerned administration orders which appoint a person to make financial decisions only. The internal review, being a review of the original decision, is therefore also confined to a consideration of the arrangements in place for financial decisions to be made for the protected person. Arguments regarding the health care received by the protected person are not relevant to the internal review.
48. The applicant further argues in his written submissions that as a beneficiary in the will of the protected person, DMX has a conflict of interest in her role as the protected person's power of attorney. He argues that DMX cannot fulfil her duties to act in the best interests of the protected person because she would prioritise preserving the protected person's funds. I do not accept that this is reasonably arguable. This arrangement in and of itself does not demonstrate that a conflict of interest exists and the applicant has not demonstrated that the attorney has made a financial decision for the protected person in a manner that suggests that the attorney was not acting in accordance with her duty to the protected person.
49. The applicant required an extension of time to bring the application. The discretion to grant an extension of time is governed by the interests of justice and considerations such as the length of the delay, the reason for the delay, the merits of the arguments raised for the review and the prejudice caused to other parties who benefitted from the original decision, are relevant. Also relevant in the particular circumstances of an internal review application of a decision concerning administration is the fact that the applicant or indeed any person may apply to the Tribunal at any time for an order to appoint an administrator and such an application will be considered on the basis of the evidence before it.[9] The jurisdiction is protective and the Tribunal's paramount consideration is the protection of the welfare and estate of the person who is the subject of the proceedings. Accordingly, although this application now finalises the internal review, the Tribunal will consider any future application with respect to PCM's estate on its merits.
50. The applicant has not demonstrated that he has an arguable case that the original decision was wrong or that there is fresh evidence that should be received that would establish that an administrator should be appointed. Therefore, I refuse the applicant permission to proceed
51. Permission to bring the application for internal review is refused.
[3] Statement of Reasons dated 9 August 2021 at p 3.
[5] Bundle of documents filed by DMX in the original proceedings on 15 March 2021 at pp 25-26.
[6] Transcript of hearing on 17 March 2021 in proceeding 2021/SC000688 at p 20.
[7] Statement of Reasons dated 9 August 2021 at p 5.
[9] See, LE v The Office of the Public Advocate & Ors (No 2) [2021] SASCA 132 at [10]- [11] where the Court of Appeal found there was little utility in granting an extension of time where it was open to the applicant to make a fresh application to vary or revoke a guardianship order on whatever evidence may then be available.