Determining Factors in a s16(4) Costs Application in a Guardianship and Administration Matter in Western Australia

In this blog post, I explore the factors to be considered in determining a s16(4) costs application in a guardianship and administration matter in the State Administrative Tribunal of Western Australia.

This discussion will rely on the case of Y and CO [2020] WASAT 166 and relevant legislation, including the Guardianship and Administration Act 1990 (WA) (the GA Act) and the State Administrative Tribunal Act 2004 (WA) (SAT Act).

1. The Tribunal's Power to Make Costs Orders

Section 16(4) of the GA Act grants the State Administrative Tribunal the power to order that costs be paid by, or out of the assets of, a represented person if it is satisfied that a party to the proceedings has acted in the best interests of the represented person or the person in respect of whom an application is made [1][21].

The principle in s 87(1) of the SAT Act states that parties usually bear their own costs in a proceeding of the Tribunal [22].

2. Factors to Consider

In determining whether to exercise its discretion to order a represented person to pay another party's legal costs, the Tribunal may consider several factors outlined in Re WA and IA, Ex Parte AA and JA [2011] WASAT 33 [32][59-60].

These factors include:

• Whether the application would have been made without the applicant seeking legal advice;

• The presence of serious allegations of abuse, requiring legal advice and representation;

• Conflict between significant parties that may prevent them from presenting a coherent case without legal assistance;

• The complexity of the application requiring legal advice and representation;

• Whether the application is contentious and unique;

• Whether the application raises a special point of law.

It is important to note that awards of costs pursuant to s 16(4) of the GA Act are not common [60].

3. Acting in the Best Interests of the Represented Person

Section 16(4) of the GA Act conditions the positive exercise of the Tribunal's discretion on being satisfied that the person seeking costs has acted in the best interests of the represented person [33].

However, more than merely acting in the best interests of the person is required to succeed in a costs order under s 16(4) [37].

4. The Amount of Costs Awarded

The amount of costs that may be awarded should be such costs relative to those proceedings as the Tribunal sees fit. The award is not referable solely to the costs incurred by that party [33].

5. The Tribunal's Wide Discretion

The Tribunal has a wide discretion under s 16(4) of the GA Act to award costs, but it should not be read independently of the costs regime in the SAT Act and the starting position that parties bear their own costs [36].

6. Relevant Case: Y and CO [2020] WASAT 166

In the case of Y and CO [2020] WASAT 166, the Tribunal made a costs order of $5,000 under s 16(4) [59].

The reasons for this finding include the applicant (Y) acting in the best interests of the represented person (CO), and that it was unlikely the application, which ultimately benefitted CO, would have been made without legal advice sought by Y [41][46].

Key Take-Aways

• Determining factors in a s16(4) costs application in a guardianship and administration matter in Western Australia involves a careful consideration of various factors and circumstances.

• The Tribunal has a wide discretion to award costs but must be satisfied that the person seeking costs has acted in the best interests of the represented person, among other considerations.

Factors to be considered in determining costs application in a guardianship and administration matter in the State Administrative Tribunal of Western Australia (other than pursuant to s 16(4))

When it comes to costs applications in guardianship and administration matters before the State Administrative Tribunal of Western Australia (SAT), other than pursuant to s 16(4) of the Act, there are various factors to consider.

In this blog post, I discuss these factors, referencing the decision MD [2022] WASAT 45 and relevant legislation, to provide an overview of the key principles and considerations in determining costs applications in such matters.

Starting Point: Parties Bear Their Own Costs

As a starting point, s 87(1) of the SAT Act sets the principle that parties typically bear their own costs in a proceeding of the Tribunal.

This principle was affirmed in RK [2020] WASAT 53 (S) (RK), where the Full Tribunal found that the parties to guardianship and administration proceedings should bear their own costs [10].

Discretion to Award Costs

However, the Tribunal does have discretion to award costs in any proceeding, except as otherwise provided in an enabling Act [11].

This includes the power to order a party to pay the costs of another party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding [12].

In exercising this discretion, the Tribunal must consider all of the circumstances of the particular case and whether it is fair and reasonable for one party to bear the costs of another [14][15].

Key Considerations

Some of the key considerations guiding the Tribunal's assessment include whether:

1. A party has conducted itself in a way that unnecessarily prolongs the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process. This includes where proceedings should not have been maintained against a party because it is clearly untenable, and no reasonable person would have believed they could be successful [16].

2. Costs have been incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings (where the conduct of the party was unreasonable and unfairly caused the increased costs) [16].

Vexatious Proceedings

In the decision of MD [2022] WASAT 45, the term 'vexatiously' was defined under s 3 and s 4 of the SAT Act, with reference to the definition in the Vexatious Proceedings Restriction Act 2002 (WA) under s 3.

Vexatious proceedings are those that are an abuse of the process of a court or a tribunal, instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose, or conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose [26].

Section 88(2) of the SAT Act and Costs

While s 88(2) of the SAT Act empowers the Tribunal to order that all or any of the costs of a proceeding be paid by a party, s 88(1) defines 'costs of a proceeding' for this section as those 'other than the costs of a party,' excluding the legal costs sought by a party in a proceeding [28].

Section 87(3) of the SAT Act and Costs

The Tribunal does have the power to order payment of costs by a party under s 87(3) of the SAT Act 'to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding' [29].

However, as noted in Blaskiewicz, discussing Questdale, the legal rationale for ordering costs is not to punish the person against whom the order is made [17].

Key Take-Aways

• In summary, while the general principle in the SAT Act is that parties bear their own costs in guardianship and administration proceedings, the Tribunal does have discretion to award costs in specific circumstances.

• Key factors to consider when determining costs applications include the conduct of the parties, the reasonableness of their actions, and whether the proceedings were vexatious.

• The Tribunal will carefully examine each case, considering all relevant factors, and determine whether it is fair and reasonable for one party to bear the costs of another.

Can a Guardian Initiate Divorce Proceedings on Behalf of a Represented Person in Western Australia?

Guardianship law is a complex area, and one question that often arises is whether a guardian can initiate divorce proceedings on behalf of a represented person.

In this blog post, I explore this topic in the context of Western Australian guardianship law, with reference to the decision in LWL [2008] WASAT 35.

The Guardianship and Administration Act (GA Act)

The GA Act is the key legislation governing the appointment and role of guardians in Western Australia.

However, the Act is silent on whether a guardian can initiate divorce proceedings on behalf of a represented person.

To understand the relevant provisions, we need to look at sections 45 and 46 of the GA Act.

Plenary Guardians (s 45)

Section 45(3)(d) of the GA Act explicitly states that a plenary guardian cannot give consent in relation to the marriage of a minor, sign a notice of intended marriage, or take part in the solemnisation of a marriage under the Marriage Act 1961 (Cth).

However, there is no mention of divorce proceedings in this section.

Under s 45(2)(g) of the GA Act, a plenary guardian may commence, conduct, or settle any legal proceedings on behalf of the represented person, as their next friend, except proceedings relating to the person's estate.

This provision may suggest that a plenary guardian has the authority to initiate divorce proceedings, but it is not explicit.

Limited Guardians (s 46)

Section 46 of the GA Act allows for the appointment of a limited guardian with specific functions vested in them by the Tribunal.

A limited guardian, if given the function under s 45(2)(g), may have the authority to initiate divorce action for a represented person by way of a case guardian, as per Pt 6.3 of the Family Law Rules 2004 (Cth).

LWL [2008] WASAT 35

In LWL [2008] WASAT 35, the Tribunal addressed the issue of whether a guardian could initiate divorce proceedings on behalf of a represented person.

It was decided that the matter required obtaining legal advice on behalf of the represented person, as the issue was at a preliminary stage.

The Tribunal then appointed a limited guardian, MIL, with the function of seeking legal advice on whether divorce proceedings could be initiated against the represented person's spouse.

The Tribunal also directed MIL to seek directions from the Tribunal pursuant to s 74 of the GA Act once the legal advice had been obtained.

Key Take-Aways

• While the GA Act does not explicitly address whether a guardian can initiate divorce proceedings on behalf of a represented person, the decision in LWL [2008] WASAT 35 suggests that a limited guardian may have the authority to do so, provided they have been granted the relevant function under s 45(2)(g).

• However, it is important to obtain legal advice on the matter, as was the case in LWL.

Evaluating the need for a Guardian: the Guardian's Ability to Effect Decisions Not Relevant

In Western Australia, guardianship matters are governed by the Guardianship and Administration Act 1990 (WA) (GA Act).

A recent decision, JL [2023] WASAT 20, provides an opportunity to examine how the Tribunal assesses the need for a guardian pursuant to s 43(1)(c) of the GA Act.

This article provide an overview of the relevant legislation and delve into the Tribunal's approach in determining whether a guardian is required.

Background

JL is a 34-year-old indigenous man who suffered a traumatic brain injury in a motor vehicle accident in 2006.

As a result, he developed a drug misuse problem, and he has been a patient of Mental Health Services since 2009.

JL's mother, BL, has been his primary carer for 16 years.

An application was made to appoint a guardian for JL, but the Public Advocate investigator did not support the appointment, arguing that JL's needs were met less restrictively through family support and existing services.

Section 43(1)(c) of the GA Act

According to s 43(1)(c) of the GA Act, the need for a guardian cannot be assessed against the ability of any guardian to give effect to the decisions made.

This principle was upheld in NCK [2004] WAGAB 6 at [64], where the workability or practicality of an order was deemed irrelevant to the statutory criteria for making a guardianship order.

Instead, the Tribunal must focus on whether there is a need for a guardian to intervene in a person's affairs.

In JL's case, the investigator submitted that there was no one more suited as a guardian than BL, as she had done more for her son than any independent guardian could hope to replicate.

The investigator argued that it was not in JL's best interests to appoint a guardian, as the least restrictive alternative was already in place through family support and existing services.

Best Interests of the Proposed or Represented Person

The primary consideration of the Tribunal must be the best interests of the proposed or represented person. In JL's case, the Tribunal considered the factors set out in s 51 of the GA Act, which include encouraging the person to live in the general community, taking their wishes into account, acting in a manner least restrictive of their rights, maintaining supportive relationships, and maintaining their familiar cultural, linguistic, and religious environment.

In weighing these factors, the Tribunal accepted the investigator's submissions that it was not in JL's best interests to appoint a guardian. The Tribunal noted that this was not a case where there was a lack of family involvement or support that would justify appointing the Public Advocate as JL's guardian against his expressed wishes and against the wishes of his family.

Key Take-Aways

• The JL [2023] WASAT 20 case demonstrates that the need for a guardian under s 43(1)(c) of the GA Act is assessed based on whether there is a need for a guardian to intervene in a person's affairs, rather than the guardian's ability to give effect to decisions made.

• In determining whether a guardian is required, the Tribunal must consider the best interests of the proposed or represented person, taking into account the factors listed in s 51 of the GA Act.

• In some cases, as in JL's, the least restrictive alternative may be found in the support and services already in place, negating the need for a guardian.

Navigating Palliative Care and Hastened Death: A Guide to the Guardianship and Administration Act in Western Australia

In Western Australia, the Guardianship and Administration Act (the GA Act) provides guidance for health professionals when making treatment decisions, particularly in relation to palliative care.

This blog post explores the circumstances under which a health professional may lawfully act in relation to palliative care, despite it hastening the death of the patient, under the GA Act.

I rely on extracts from the legislation and provide references to the relevant sections throughout the article.

Valid Treatment Decisions: Palliative Care and Hastening Death

Section 110ZL of the GA Act provides guidance on the validity of certain treatment decisions made by health professionals.

According to this section, if a health professional:

(a) commences or continues palliative care in relation to a patient; or

(b) does not commence or discontinues any treatment of a patient,

in accordance with a treatment decision that is:

(c) in an advance health directive made by the patient; or

(d) made by the patient’s guardian or enduring guardian or the person responsible for the patient under section 110ZD,

the health professional is considered to have done so in accordance with a valid treatment decision, even if an effect of doing so is to hasten the death of the patient.

Palliative Care Defined

To better understand the context of Section 110ZL, it is important to know what palliative care entails.

According to Section 3(1) of the GA Act, palliative care is defined as a medical, surgical, or nursing procedure directed at relieving a person's pain, discomfort, or distress, but does not include a life-sustaining measure.

Treatment Decisions and Advance Health Directives

Section 110ZL of the GA Act provides that the health professional's actions are considered valid when they act according to a treatment decision:

• specified in an advance health directive or

• made by the patient's guardian or enduring guardian or

• made by the person responsible for the patient under section 110ZD.

An advance health directive, as defined in Section 3(1), refers to a directive made under Part 9B of the GA Act or an instrument recognised as such under section 110ZA.

An enduring guardian, as mentioned in Section 3(1), is the person appointed under an enduring power of guardianship or the persons who are joint enduring guardians under an enduring power of guardianship, including a substitute enduring guardian.

A person responsible for a patient under section 110ZD is explained here.

Key Take-Aways

• In summary, under the GA Act, a health professional in Western Australia may lawfully act in relation to palliative care, even if it hastens the death of the patient, as long as the health professional acts in accordance with a valid treatment decision.

• This decision must be either specified in an advance health directive made by the patient or made by the patient's guardian or enduring guardian.

Treatment Decisions Under the Guardianship and Administration Act in Western Australia

As a guardianship lawyer in Western Australia, I frequently come across questions related to treatment decisions for patients who are unable to make reasonable judgments in respect of their treatment.

In this blog post, I discuss the circumstances in which a “person responsible” may make treatment decisions under the Guardianship and Administration Act 1990 (WA) (GA Act). We will focus on sections 110ZD, 110ZE, 110ZJ, 110ZI, 110ZIA, and the definition of "nearest relative" as per section 3 of the GA Act.

1. Circumstances in which a person responsible may make treatment decisions (Section 110ZD)

According to Section 110ZD of the GA Act, if a patient is unable to make reasonable judgments regarding a proposed treatment, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.

The person responsible for the patient is the first in order of the persons listed in subsection (3) who:

(a) is of full legal capacity;

(b) is reasonably available; and

(c) is willing to make a treatment decision in respect of the treatment.

The persons listed in subsection (3) include:

(a) the patient’s spouse or de facto partner, subject to specific age and living arrangements;

(b) the patient’s nearest relative who maintains a close personal relationship with the patient;

(c) the primary provider of care and support (including emotional support) to the patient, who is not remunerated for providing that care and support; and

(d) any other person who maintains a close personal relationship with the patient, subject to certain age requirements.

Section 110ZD also provides guidance on determining the patient's nearest relative and what constitutes a close personal relationship.

2. Section 110ZD: Determining the Patient's Nearest Relative and Close Personal Relationship

Section 110ZD of the GA Act provides detailed guidance on determining the patient's nearest relative and the criteria for establishing a close personal relationship. This information is crucial for identifying the appropriate person responsible for making treatment decisions on behalf of the patient.

A. Nearest Relative

Subsection (4) of Section 110ZD outlines the order of priority for the patient's nearest relative:

1. The spouse or de facto partner;

2. A child;

3. A parent;

4. A sibling.

For the purpose of this determination, Section 3 of the GA Act provides an extended definition of "nearest relative," which includes additional relatives such as stepchildren, foster parents, grandparents, uncles, aunts, nephews, and nieces. Furthermore, the definition considers brothers and sisters of half-blood and adopted siblings as equal to full-blood siblings.

Under the GA Act, being the eldest child carries specific importance when determining the patient's nearest relative for making treatment decisions. According to the definition of "nearest relative" in Section 3 of the GA Act, if there are two or more relatives of the same degree of relationship (e.g., siblings), the elder or eldest of those relatives shall be preferred regardless of their sex.

B. Close Personal Relationship

Section 110ZD(5) defines a close personal relationship by the following criteria:

1. The person has frequent contact of a personal (as opposed to a business or professional) nature with the patient; and

2. The person takes a genuine interest in the patient's welfare.

By meeting these criteria, a person can be considered to maintain a close personal relationship with the patient, which is a requirement for certain categories of persons listed in subsection (3) (b) and (d)(ii) of Section 110ZD.

3. Priority of treatment decision of the person responsible (Section 110ZE)

The priority to be given to a treatment decision of a person responsible for a patient under Section 110ZD is determined in accordance with Section 110ZJ.

4. Order of priority of persons who may make treatment decisions in relation to a patient (Section 110ZJ)

Section 110ZJ outlines the order of priority for persons who may make treatment decisions in relation to a patient. The priority order is as follows:

(a) a treatment decision made by the patient through an advance health directive;

(b) a treatment decision made by an enduring guardian authorized to make the decision;

(c) a treatment decision made by a guardian authorized to make the decision;

(d) a treatment decision made by the person responsible for the patient under Section 110ZD.

5. Urgent treatment provisions (Sections 110ZI and 110ZIA)

In cases where a patient requires urgent treatment and is unable to make reasonable judgments, Sections 110ZI and 110ZIA provide guidance on when a health professional may provide treatment in the absence of a treatment decision or despite a treatment decision that is inconsistent with providing the treatment.

Urgent Treatment Under the GA Act After Attempted Suicide in Western Australia

As a guardianship lawyer in Western Australia, I frequently deal with cases involving urgent treatment decisions for patients who are unable to make reasonable judgments about their healthcare.

One such situation that requires particular attention is urgent treatment after an attempted suicide.

In this blog post, I discuss the provisions in the Guardianship and Administration Act 1990 (the GA Act) that apply to these circumstances, specifically sections 110ZIA and 110ZD.

Urgent Treatment After Attempted Suicide: Section 110ZIA

Section 110ZIA of the GA Act specifically addresses the situation where a patient requires urgent treatment following an attempted suicide. Under subsection (1), this section applies if:

(a) a patient needs urgent treatment;

(b) the patient is unable to make reasonable judgments in respect of the treatment; and

(c) the health professional who proposes to provide the treatment reasonably suspects that the patient has attempted to commit suicide and needs the treatment as a consequence.

If these conditions are met, subsection (2) allows the health professional to provide the necessary treatment to the patient, despite any:

• advance health directive or

• treatment decision (even if such directive or decision is inconsistent with providing the treatment) made by the patient's:

  • guardian,

  • enduring guardian, or

  • person responsible for the patient under section 110ZD (who such a person is, is explained below).

Circumstances in Which a Person Responsible May Make Treatment Decisions: Section 110ZD

Section 110ZD of the GA Act outlines the circumstances in which a person responsible for a patient may make treatment decisions on their behalf if the patient is unable to make reasonable judgments concerning the proposed treatment.

Subsection (2) sets forth the order of priority for determining the person responsible for the patient, with the first person in the order being the patient's spouse or de facto partner (who has reached 18 years of age and is living with the patient), followed by the patient's nearest relative who maintains a close personal relationship with the patient, the primary provider of care and support to the patient (who is not remunerated for providing such care and support), and any other person who maintains a close personal relationship with the patient.

When making a treatment decision for the patient, the person responsible must act according to their opinion of the best interests of the patient (subsection (8)). A treatment decision made by the person responsible for the patient has the same effect as if the patient had made the decision and were of full legal capacity (subsection (9)).

Key Take-Aways

• In urgent treatment situations following an attempted suicide, the provisions under sections 110ZIA and 110ZD of the GA Act are crucial to ensuring that the patient receives the necessary care while respecting the patient's autonomy to the extent possible.

• Health professionals and those responsible for the patient should be aware of these provisions and their implications in order to make informed decisions about the patient's treatment and care.

Revoking an Enduring Power of Attorney in Western Australia: Mental Capacity

Enduring Powers of Attorney (EPA) serve as an essential legal document that enable a person (the donor) to appoint one or more individuals (the attorney(s)) to manage their financial affairs in the event of incapacity.

However, there are situations where the donor might want to revoke the EPA, either due to a change in circumstances or for other reasons.

In this blog post, I discuss the mental capacity required to revoke an EPA in Western Australia, using the KRL [2010] WASAT 187 decision as a reference.

Mental Capacity and the Revocation of an EPA

To revoke an EPA, the donor must possess the mental capacity to understand the nature and consequences of their decision. According to the High Court of Australia in Gibbons v Wright (1954) 91 CLR 423, the capacity to understand the nature of a transaction is determined by whether the person can comprehend the transaction when it is explained to them. In the context of revoking an EPA, the donor must understand the authority given to their attorney(s) and the consequences of taking away that authority.

In KRL [2010] WASAT 187, an elderly woman with cognitive impairment revoked her EPA, which had been operating to meet her need for financial management. However, the question of whether she was competent to make the revocation was raised by the appointed administrator. The tribunal examined whether the woman understood the nature and consequences of her decision, taking into consideration the evidence provided by her friend who had assisted her with the revocation process.

Presumption of Capacity and Guardianship and Administration Act

Under the Guardianship and Administration Act 1990 (WA) (GA Act), there is a presumption of capacity for individuals, meaning that a person is presumed capable of making reasonable decisions about their person and their estate until proven otherwise. This presumption mirrors the common law principle that a person is presumed to be capable of executing a document.

In KRL [2010] WASAT 187, the tribunal applied the principles of the GA Act and the general law to determine the woman's capacity to revoke her EPA. Although there were doubts about her understanding of the nature and consequences of her decision, the tribunal did not have the power to declare the validity or invalidity of the revocation under the GA Act.

The Role of the State Administrative Tribunal

The State Administrative Tribunal (SAT) in Western Australia has powers under the GA Act and the State Administrative Tribunal Act 2004 (WA) to deal with guardianship and administration matters. However, the GA Act does not grant the SAT declaratory powers in respect of the validity or invalidity of an EPA or the revocation of one. In cases where the validity of an EPA or its revocation is in question, the matter may be brought before the Supreme Court.

Key Take-Aways

• Revoking an EPA in Western Australia requires the donor to possess the mental capacity to understand the nature and consequences of their decision.

• While the GA Act provides a presumption of capacity, the question of whether a person is competent to revoke an EPA may still be raised in some situations.

• The SAT does not have the power to declare the validity or invalidity of an EPA or its revocation; such matters may be addressed by the Supreme Court.

• When seeking to revoke an EPA, it is wise to consult with a qualified guardianship lawyer to ensure that the legal requirements are met and the donor's intentions are carried out as intended.

Understanding the Extent to which a Guardian or Administrator is Entitled to See the Represented Person's Will in Guardianship Matters under the GA Act

In the world of guardianship and administration law, one important question often arises: to what extent is a guardian or administrator under the Guardianship and Administration Act (GA Act) entitled to see the represented person's will?

This blog post provides an overview of this subject, relying on the decision in MT [2018] WASAT 80 as a reference point.

The MT Case and Relevant Legislation

In MT [2018] WASAT 80, the question of whether a guardian or administrator should have access to the represented person's will was discussed. The Tribunal, in this case, held that it was not necessary to view the will of the represented person (MT) to determine the application for the appointment of an administrator of MT's estate in her lifetime (para 49). This was because the Tribunal's role was to determine whether MT needed an administrator for her estate, and the terms of her will were not relevant to this question (para 50).

However, the Tribunal acknowledged that the terms of a will may be relevant to the question of who may be appointed as an administrator (para 51). For example, the appointment of an executor in an unrevoked will may provide guidance to the Tribunal as to the wishes of a proposed represented person for the appointment of an administrator.

Access to the Represented Person's Will

Under the GA Act, the Public Advocate has functions to advance the best interests of the represented person at hearings, to present any relevant information to the Tribunal, and to report on any investigation referred (GA Act s 97(1)(b)(i)(ii)(iii)).

In MT, the Tribunal accepted the evidence of the Public Advocate's investigator, who gathered MT's views and wishes without requiring access to her will (para 48).

In some circumstances, access to the represented person's will may assist the administrator in clarifying the extent of the estate or determining whether further orders might be sought by the administrator for preserving the tenure or devolution of the represented person's property (para 65).

In MT, the Tribunal ordered that a copy of the will should be provided to the Public Trustee if it was in the possession of AT, one of the parties in the case (para 3).

The Importance of Best Interests

In deciding on the appointment of an administrator, the Tribunal's primary obligation is to act in the best interests of the represented person (para 63).

While the Tribunal must ascertain the wishes of the represented person, it must weigh these wishes against factors such as the complexity of the circumstances, the conflict between family members, and the expertise and neutrality of the proposed administrator.

Key Take-Aways

• In summary, under the GA Act, a guardian or administrator is not automatically entitled to see the represented person's will.

• The terms of the will may be relevant to determining who should be appointed as an administrator, but the focus should be on the best interests of the represented person.

• Access to the will may be granted in some cases to assist the administrator in fulfilling their duties, but this will depend on the specific circumstances of each case.

The Tribunal's Role in Preserving Testamentary Intentions in Guardianship Matters

In guardianship matters, the issue of preserving a represented person's testamentary intentions as reflected in their Will can be quite complex.

A decision by the State Administrative Tribunal of Western Australia, JEB [2016] WASAT 65, sheds light on the role of the Tribunal in such cases, particularly when it comes to making directions regarding the way funds are held by administrators.

In this blog post, I delve into the key aspects of the JEB case and examine the Tribunal's approach in balancing the best interests of the represented person while preserving their testamentary wishes.

Case Summary: JEB [2016] WASAT 65

In JEB [2016] WASAT 65, the Public Trustee sought the removal of the existing family member joint administrators and also certain directions as to the way in which funds from the sale of certain assets of the estate should be held. Assets specifically gifted by the represented person in her Will had been sold by the administrators who were unaware of the existence of the Will. The Public Trustee was the executor of the Will.

The Tribunal appointed the Public Trustee as plenary administrator and made the directions sought by the Public Trustee regarding the separation of the proceeds of sale from the balance of the estate and their quarantining from use in inter vivos expenditure until the balance of the represented person's funds were depleted.

The Tribunal found that affordable actions taken to maximize the chances that a represented person's testamentary wishes as reflected in a Will are able to be carried out constitutes acting in their best interests, even if it represents a financial cost to their estate inter vivos, and that it is a matter of balance for the administrator to determine depending upon the circumstances of the person and their estate.

Relevant Case Law

The Public Trustee relied on the case of Re Hartigan; ex parte The Public Trustee in the State of Western Australia (unreported, Supreme Court of Western Australia, 9 December 1997, Library No. 970736) (Re Hartigan) to support the proposition that if real estate is sold by an administrator and the testator is not capable of changing his or her will, then the gift of real estate is not automatically adeemed. The devisee is instead entitled, at face value, to the proceeds of sale. Re Hartigan followed a case of Re Viertel [1997] 1 Qd R 110 (Re Viertel).

However, there was some disagreement in the case law as to whether the principles in Re Hartigan still apply and, if so, how. The Tribunal referred to Simpson v Cunning [2011] VSC 466 (Simpson) and RL v NSW Trustee and Guardian [2012] NSWCA 39 (RL) as cases expressing doubts about the state of the law and calling for legislative intervention.

Legislative Provisions

The Guardianship and Administration Act 1986 (Vic) contained provisions addressing ademption of property when there was an administrator appointed under that Act. However, there was no similar provision covering when there was an enduring power of attorney.

The Guardianship and Administration Act 2000 (Qld) allowed the Supreme Court of Queensland to award compensation for loss of benefits in an adult's estate due to a sale or other dealing with the adult's property by an administrator, but there was no such provision in the GA Act.

Tribunal's Findings

The Tribunal in JEB [2016] WASAT 65 was satisfied that the represented person was a person for whom orders could and should be made. The Tribunal appointed the Public Trustee as the administrator of last resort and made the directions sought by the Public Trustee regarding the handling of the proceeds from the sale of the specifically gifted assets.

In making its decision, the Tribunal acknowledged the complexities and uncertainties in the current state of the law regarding ademption of specifically gifted assets when they are sold by an administrator. Despite the doubts expressed in cases like Simpson and RL, the Tribunal found that the principles in Re Hartigan and Re Viertel were applicable in the present case. Thus, the devisee was entitled to the proceeds of sale for the gifted assets.

The Tribunal emphasized that while the best interests of the represented person should be the primary concern of an administrator, preserving the person's testamentary intentions was also an important consideration. The Tribunal recognized that ensuring the represented person's wishes were upheld may sometimes come at a cost to their estate during their lifetime. However, the Tribunal held that it was a matter of balance and that affordable actions taken to maximize the chances of fulfilling the person's testamentary wishes were in their best interests.

Key Take-Aways

• The JEB [2016] WASAT 65 case highlights the Tribunal's role in guardianship matters, where preserving testamentary intentions is a key concern.

• The decision provides valuable insight into how the Tribunal may approach such cases, balancing the best interests of the represented person and their testamentary wishes, even when the law is unclear.

• The case also serves as a reminder of the importance of legislative intervention to provide clearer guidance for administrators and the courts when dealing with ademption of specifically gifted assets. In the absence of clear legislative provisions, the Tribunal's approach in JEB [2016] WASAT 65 provides a valuable example of how the courts may navigate the complexities and uncertainties in the current state of the law.