RJK [2019] WASAT 109 (9 November 2019)

Guardianship and Administration Act 1990 (WA), s 4, s 68(5), s 85

1. These reasons have been taken from the transcript of the hearing and have been edited to anonymise the parties and to make necessary corrections or annotations for the purpose of grammar or syntax.
2. This is a review of an order dated 18 November 2016 by which the Public Trustee is appointed the plenary administrator of the estate of RJK, the represented person, pursuant to s 85 of the Guardianship and Administration Act (WA) (GA Act). The review hearing was attended by the representatives of the Public Advocate and the Public Trustee. The Public Trustee was represented by the State Solicitor's Office.
3. Although the represented person had notice of the hearing, he did not attend. His views and wishes were ascertained by the Public Advocate's representative and presented to the Tribunal in the course of the proceeding.
4. In all proceedings of the Tribunal under the GA Act, the Tribunal must observe principles in GA Act (s 4) and have as its primary concern the best interests of the represented person. It must start from the position that RJK is presumed to be capable of managing his estate, must not make orders unless they are needed and must attempt to ascertain his wishes.
5. RJK has been the subject of administration orders since 1998, and those orders have been reviewed from time to time, most recently in 2016, when the Public Trustee was confirmed as the administrator of his estate and the Public Advocate confirmed as his limited guardian with functions to determine his accommodation, medical treatment, the services to which he should have access and to consent to chemical or physical restraint of the represented person. Those orders were made reviewable in 2021.
6. On review of the administration order dated 18 November 2016, the Tribunal is satisfied that RJK remains a person for whom an administration order may be made. The Tribunal is satisfied that the presumption that he is capable of making reasonable judgments about his estate is rebutted by the evidence before the Tribunal. That evidence includes reports from the Department of Communities, Disability Services, historical medical reports, assessments conducted by psychologists and doctors over the history of these orders.
7. No issue is taken that RJK remains in need of an administrator of his estate. There is no less restrictive means by which the management of his legal and financial affairs may be conducted.
8. The issue that arises on this review is who should be appointed as the administrator of RJK's estate.
9. This present review arises as the Public Trustee in July 2019 quite properly drew the attention of the Tribunal to irregularities in the conduct of a legal matter of RJK by an individual legal officer then employed in the Public Trustee's Office who no longer works there.
10. The Tribunal acknowledges that the Public Trustee has taken significant steps prior to the review hearing to address the issues raised by this matter, including the engagement of independent counsel through the State Solicitor's Office to review all of RJK's files, that the Public Trustee has undertaken to pay the costs of that legal advice, that the Public Trustee has reimbursed the internal legal fees previously charged to the represented person's estate and the Public Trustee has undertaken to make good any loss suffered by RJK, however occasioned.
11. However, both the Public Trustee and the Public Advocate acknowledge, and the Tribunal finds that the Public Trustee is in a position of conflict in this matter and, therefore, cannot act as administrator of the estate of RJK in respect of that part of his estate being a potential claim against the Public Trustee.
12. The Tribunal places on record its acknowledgement of the difficulties, disruption, additional demands and probable distress that these events have created and confirms its confidence in the integrity of the Public Trustee and his officers who now have carriage of this matter.
13. It is essential that any potential claim against the Public Trustee be dealt with impartially and that it be seen to be dealt with in this way. It has been the practice of the Tribunal that where a conflict arises in the administration of an estate in a particular matter, the Tribunal may make orders that provide for the continuing administration of the estate by the appointed administrator, but appoint another administrator to exercise certain functions in relation to that part of the estate to which the conflict relates.
14. This can be illustrated where a family member is an administrator of an estate of a person who becomes entitled or who has a potential entitlement under a will or a deceased estate of a parent of both the represented person and the administrator. This, in some cases, creates a potential conflict, and this is resolved by the Tribunal, to ensure the best interests of the represented person, by appointing the Public Trustee to examine the interests of the represented person in the deceased estate of their late parent, but continuing the authority of the sibling to manage all other aspects of the represented person's estate.
15. There have also been other cases before the Tribunal where the Public Trustee, for one reason or another, has a conflict in respect of an estate under his administration. If that conflict is identified, then, the Public Advocate may be appointed limited administrator, pursuant to s 68(5), of the GA Act. In this case, the Tribunal is not persuaded that the Public Advocate, without authority as a limited administrator of RJK's estate in respect of this particular matter, could provide any oversight of any proposal or opinion or could agree to any settlement proposed to resolve the matters in question.
16. There is no one else in the life of RJK who can act as an advocate for him or can scrutinise the conduct of persons dealing with him or his estate or could be appointed as his administrator. He has no known living family in Australia. He has spent most of his adult life in one form of institutional care or another because of his disabilities and his challenging behaviours.
17. The Tribunal finds that it is in the best interests of RJK that there be oversight of the particular matters raised in this review by an independent administrator with the necessary legal authority to deal with this matter on his behalf.
18. It is also argued that it is not in the best interests of RJK to appoint the Public Advocate as limited administrator as there may be some delay in resolving this matter, since she may wish to obtain her own legal advice; and the process may, thereby, be unnecessarily extended. While acknowledging that any delay is not in the interests of RJK, there remains the fundamental issue of the conflict which cannot be resolved in the judgment of the Tribunal by any other order.
19. I distinguish this case from the case argued before me of AT [2007] WASAT 324, where the Tribunal determined that it was not in the best interests that the status quo of the Public Trustee as administrator be changed because, in part, it would be an unnecessarily onerous task for a newly appointed administrator to become involved in the matters which created the conflict with the Public Trustee.
20. The circumstances of this case are different. The facts of this case reinforce the need for independent and transparent administration of aspects of the estate. I do not consider that it would be, in the words of that decision, 'an unnecessarily onerous task' for the Public Advocate to obtain legal advice regarding these matters. For the reasons I have given, I consider that it is necessary that there be independent oversight of these matters. It is submitted, and the Tribunal acknowledges, that the Public Advocate has access to the State Solicitor's Office for assistance and advice to assist her in the performance of her functions as administrator.
21. The Public Advocate's investigator has discussed this review with RJK and obtained his views when visiting him for the purposes of this review. The investigator advises that RJK has some understanding of the circumstances, but expressed no concern about the conflict of interest issues raised.
22. Based on the medical and other health professional reports before me, I find that RJK has no capacity to advocate for his own interests in relation to these matters, and his vulnerability and dependence on others further reinforces the need for transparency and independence in the determination of this review.
23. In respect of the submission that it is in the best interests of the represented person that administration arrangements not be disturbed because of the impact this may have on RJK, the Tribunal accepts this submission.
24. The material before the Tribunal indicates that RJK is often anxious about his financial matters, and it would not be in his interests that there is any detectable change in his experience of the day-to-day conduct of his financial affairs by the Public Trustee and about which there is absolutely no criticism.
25. The Tribunal will, therefore, continue the appointment of the Public Trustee as limited administrator, with all the powers and duties of a plenary administrator, save for the functions to be exercised by the Public Advocate in respect of this matter.
26. For these reasons, the Tribunal orders that the orders dated 18 November 2016 are revoked and substituted with the following orders:

1. The Public Trustee of 553 Hay Street, Perth, is appointed the limited administrator of the estate of the represented person with all the powers and duties of a plenary administrator save for the functions vested in the Public Advocate by order 3 of these orders.
2. The Public Trustee is directed to send a statement of the account quarterly to the represented person.
3. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited administrator of the estate of the represented person, with all the powers and duties of a plenary administrator in respect of the management of any claim of the represented person against the Public Trustee, his employees, his agents or a solicitor engaged on his behalf.
4. The Public Trustee will meet all costs and disbursements of the Public Advocate incurred in the discharge of her functions as limited administrator of the estate of the represented person.
5. The administration order is to be reviewed by 18 November 2021.

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