CASE STUDIES SUMITTED BY ANITA SMITH Anita Smith, Tasmanian Guardianship and Administration Board Session Ref: Elder Law ELDER FINANCIAL ABUSE CASE STUDIES – TASMANIA The following are de-identified cases that have come before the Guardianship and Administration Board which may fit the category of being “elder financial abuse” or “suspected elder financial abuse”. Please note the Board’s function is not to make findings about whether or not abuse has occurred, but rather to put a stop to any abusive practices and put in place lawful authorities (e.g. a guardian or administrator) to protect the person from future harm. Where case references are noted, the full statement of reasons is available on www.austlii.edu.au . 2005 – 2010 – Misuse of appointment as administrator EKI (hereafter referred to as “the proposed testator”) is a 93 year old widow who lives in an Aged Care Facility in Hobart. As a consequence of her advanced dementia she has been the subject of an administration order since 11 June 2003. NX was originally her administrator appointed by VCAT and then registered with the GAB. The Board approved NX investing $100,000.00 from EKI’s estate towards the purchase of a home registered as tenants in common in shares proportionate to their respective investments. Such an investment represented about 1/7th of the value of her estate. An annual report was received from NX on 22 June 2007. This report disclosed transactions of significant concern. An audit by the Public Trustee revealed the following unauthorised transactions which were subsequently disallowed:  Body corporate fees dated 31 July 2006 of $797.84 and rates dated 14 December 2006 of $450.00  Legal fees expended for the benefit of the former administrator during her family law proceedings on 10 December 2004 and 14 July 2005 to a total of $1017.91  A loan of $528 to NX’s mother dated 23 September 2004  A gift of $72,000 to NX’s mother dated 1 August 2006  NX’s motor vehicle expenses NX was required to return all of the funds to EKI’s estate. The Public Trustee has been appointed as EKI’s administrator. EKI (Statutory Will) [2010] TASGAB 12 2006 – Everybody’s moving in! B was convinced by a person of similar European background, HC, that an Australian born attorney had been stealing from her. That person then had B sign a tenancy agreement enabling HC’s daughter to be a tenant in B’s home on the following conditions: • Rental set at $5.00 per week • B bearing responsibility for payment of all services such as electricity, water and telephone as well as all breakages of chattels and repairs however occasioned • Allows the tenant to determine whether any other person should reside in the property and for what period • Provides for unlimited subtenancy arrangements • Allows a tenant to store dangerous goods on the premises even if it invalidates an insurance policy • Requires that, should the tenancy be terminated for any reason, compensation should be paid to the tenant to a maximum sum of $31,200.00 B provided multiple authorities to persons to access her bank accounts, including HC and B’s late husband’s great nephew who she met 3 days before. The late husband’s great nephew also moved in and could see no reason why he ought to pay board to B or support her in any way. After appointment of the Public Trustee as administrator, HC claimed $10,000.00 in expenses from B’s estate, of which she provided verification for roughly half. B (Review Enduring Powers) (Guardianship) [2006] TASGAB 7 June 2011 – Use of funds in bank account Mrs. B. is 87 years old and has dementia. When she was admitted to residential aged care carers reported that she was in a neglected state and had not been afforded the dignity of appropriate self-care or hygiene. The aged care facility sought the appointment of an administrator under an emergency order in April 2011 when all requests for payment of her nursing home fees were rejected by her family. By that stage she was over $4000.00 in arrears in her payments. When the Public Trustee commenced management under the emergency administration order, they discovered that Mrs. B. rent was being deducted from her account for her former Housing Tasmania unit in which her daughter and grandchildren now lived. She was also paying Aurora installments for electricity she had not used. No personal items of Mrs. B’s remained in the unit, it was presumed they have all been sold or destroyed. The bank account into which her pension is paid had a balance of -$2.20 and someone has been accessing her account with a PIN number. When the residential aged care facility and the Public Trustee took measures to ensure that her pension was directed to payment of accommodation fees, her daughter visited the home, attempting to remove her mother from care. Including this visit, family members have attended the home twice in 6 months. It is unlikely that Mrs. B. will ever be able to pay the arrears in nursing home fees, the nursing home have agreed not to evict her for the unpaid arrears. The Public Trustee has been appointed as her administrator for 3 years. (This case is especially typical. Applications with similar circumstances arise around once per month in the Tasmanian Guardianship and Administration Board.) February 2010 – Sequestration of an elderly person NSG had been living in a small unit with her daughter TG. The unit was sparsely furnished with two beds and one chair and that NSG appeared to spend most of her time in bed and did not leave the unit. In addition to her social isolation, the Older Persons Mental Health Service was gravely concerned that TG had:  denied access to NSG for administration of medical treatment, including monitoring of blood sugar levels  denied access to take NSG to respite care  been inappropriately administering NSG’s medication  refused assistance with hygiene and nutrition NSG had lost weight and her health and general well-being was deteriorating. NSG had another daughter, WD, who had attempted to assist, but furniture she had bought was sold by TG and attempts at care were rejected. WD ceased in her attempts at care because she was worn out by TG’s resistance. An emergency guardianship order was made. The Public Guardian had NSG moved to nursing home care where her health improved significantly, although she suffered distress from visits by TG. An emergency administration order was also made and the Public Trustee discovered that amounts of $1500 and $5000 had been withdrawn from NSG’s account in September and October 2009. They noted a balance of about $14000 and reported that TG was attempting to access the account. The Public Trustee has put a stop on the account. The Public Guardian and the Public Trustee were appointed with full guardianship and administration powers for 3 years. See: NSG (Guardianship and Administration) [2010] TASGAB1 May 2010 – Taxi driver inveigled into elderly person’s life FE is almost 90 years of age and a widow. Until relatively recently she lived for 30 years with her two sisters. The three sisters became frequent users of a local taxi company, who employed a driver named L who often drove for them. One sister died, and another moved to an aged care facility, leaving the proposed represented person living alone. At that point L became very useful to the proposed represented person in assisting with day to day routine needs, accepting money for certain tasks other than driving. Early in 2010, L began to act in a possessive manner towards FE (including holding the single house key to her property), warding off assistance by family members who had historically rendered practical assistance and controlling information about her. Of particular concern was the occasion recently when L and a friend E removed art, furniture and fine china with an estimated value of $10,000.00 from her home and for which L paid her only several hundred dollars in an unrecorded transaction. Some other of her valuable possessions are apparently at L’s home in storage. L is also alleged to have charged excessive fees for poor workmanship around the proposed represented person’s house, e.g. roof painting. When FE’s house was placed on the market possibly undervalue, her family attempted to contact the real estate agent and the solicitor, but were informed that L was the only person authorised to receive information. FE was deemed to have capacity, so beyond the appointment of an emergency administrator, no appointment was made. FE (Administration) [2010] TASGAB 8 June 2010 – Severing a joint tenancy to accelerate inheritance from parents The Board appointed T as administrator for his 87 year old mother, E. T also held an enduring power of attorney for his father, S. After receiving the administrator’s annual reports submitted to the Board, the Board sought information about the sale of a property which E had held as joint tenants with S, her husband. At S’s instruction, in September 2009, T severed the joint tenancy in his role as attorney, meaning that the property was now held as tenants in common between E and S. S died in October 2009, five days before the severance was registered. T now stood to inherit from S’s estate in equal shares with his brother. If the joint tenancy had not been severed, E would have been entitled to the value of the whole property. Because the title had been severed, E now only received half the sale proceeds and T and his brother a quarter each. The Board made T liable to E’s estate for the half share of the sale proceeds and replaced him as administrator with the Public Trustee. EKN (Administration) [2010] TASGAB 9 June 2010 (2) – Interference with professional carers to the detriment of the elderly person BKQ is an 88 year old man who lives alone. December 2009 he appointed NT and BX as joint Enduring Guardians and Enduring Powers of Attorney. In March 2010 a care provider lodged an application for review of the Enduring Power of Attorney and Enduring Guardianship because workers questioned his capacity to have made those appointments and were concerned that NT was undermining the activities of the professional carers. There were further concerns that NT intended to sell BKQ’s house contrary to his wishes, and that her management of his money on a day to day basis did not demonstrate an appropriate understanding of her responsibilities as guardian and attorney. Dr S opined that as at the date of execution of the enduring power of attorney and the enduring guardianship that BKQ was unlikely to have appreciated the nature of the enduring appointments. The evidence of conflict between the service providers and NT was sufficient to demonstrate the need for a guardian to be appointed. Had no guardian been appointed, NT may have continued to attempt to control BKQ’s support arrangements, which in the view of the Board was not in the best interests of BKQ, nor did it accord with his wishes. NT had also engaged in a high level of conflict with regard to her management of BKQ’s financial affairs. The Board revoked the instruments and appointed the Public Trustee and the Public Guardian as his administrator and guardian. BKQ (Guardianship) [2010] TASGAB 10 2011 – Helpful solicitor uses estate to help herself Noelene (not her real name) is 74 years of age. She appointed her solicitor as her attorney under an enduring power of attorney in circumstances which caused the Board to doubt Noelene’s understanding of that appointment. The attorney then placed Noelene’s house on the market for $160,000. The highest appraisal for the property was $205,000. The attorney rejected an offer of $150,000 (conditional on finance) submitted by a real estate agent. When the real estate agent indicated that this offer might be increased to $160,000, and that the purchaser’s finance had been approved, the attorney dismissed the real estate agent. Twelve days later, despite having re-engaged the real estate agent, the attorney personally presented an unconditional contract to Noelene to sign for $145,000.00. At the time of signing, Noelene was not aware that the purchaser was the attorney’s daughter. Under an emergency order, the Board revoked the appointment of the attorney and appointed the Public Trustee as administrator for Noelene. That was confirmed after a hearing. The attorney’s daughter withdrew from the contract. The Board has referred the behaviour of the solicitor/attorney to the Legal Profession Board which is investigating the matter. NPG (Review Enduring Power) [2011] TASGAB 22 [2012] WASC 306 CASE STUDY SUMITTED BY ANITA SMITH Anita Smith, Tasmanian Guardianship and Administration Board Session Ref: Elder Law JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : S -v- STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA [No 2] [2012] WASC 306 CORAM : EM HEENAN J HEARD : 4 & 5 APRIL 2012 DELIVERED : 29 AUGUST 2012 FILE NO/S : GDA 8 of 2011 MATTER : The Guardianship and Administration Act 1990 (WA) and State Administrative Tribunal Act 2004 (WA) and Case Number GAA 1729 of 2010 and 1730 of 2010 in the State Administrative Tribunal of Western Australia at Perth BETWEEN : S Applicant AND STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA First Respondent THE PUBLIC TRUSTEE Second Respondent THE PUBLIC ADVOCATE Third Respondent Document Name: WASC\GDA\SMITH_Anita_CaseStudy (LW) Page 1 [2012] WASC 306 ON APPEAL FROM: For File No : GDA 8 of 2011 Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA Coram : MS D TAYLOR (SENIOR MEMBER) MS V O'TOOLE (SENIOR SESSIONAL MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER) File No : GAA 1729 of 2010, GAA 1730 of 2010 Catchwords: Administrative law - State Administrative Tribunal - Guardianship and administration - General principles of legislative scheme - Nature of hearing - Practice and procedure - Appeals - Origin and nature of rights to appeal - Review orders - Original jurisdiction - Review jurisdiction - Whether O 70 r 2 prevents a 'represented person' instituting and maintaining an appeal without a next friend - Significance of 'parens patriae' jurisdiction - Differing compositions of SAT panels - Obligation to accord procedural fairness - Obligation to act according to equity, good conscience and the substantial merits of the case - Exclusion of rules of evidence - Right to confront evidence relied on and to cross-examine - Procedural implications - Bias - Actual or ostensible - Need to rule on submission of bias - Need to obtain suitably qualified expert medical opinion - Proved mental disability as a pre-requisite for an administration order - New evidence or fresh evidence on appeal - Liability for compensation or restitution for property and financial transactions completed in reliance on order later set aside Legislation: Guardianship and Administration Act 1990 (WA) State Administration Tribunal Act 2004 (WA) Supreme Court Act 1935 (WA Result: Appeal allowed Document Name: WASC\GDA\SMITH_Anita_CaseStudy (LW) Page 2 [2012] WASC 306 Guardianship order and administration orders set aside Original application to SAT dismissed Category: A Representation: Counsel: Applicant : Mr G Cridland First Respondent : No appearance Second Respondent : Mr L A Tsaknis Third Respondent : Mr A J Sefton Solicitors: Applicant : Legal Aid (WA) First Respondent : No appearance Second Respondent : Public Trustee (WA) Third Respondent : State Solicitor for Western Australia Case(s) referred to in judgment(s): A v A Health Authority; J A Child, Re (Fam D) [2002] 3 WLR 24; [2002] EWHC 18 (Fam) Allregal Enterprises Pty Ltd v Carpaolo Nominees (No 2) [2009] WASCA 55 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 British Imperial Oil Company Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422; [1925] HCA 4 Cadwallender v The Public Trustee [2003] WASC 72 Carseldine v Director of Department of Children's Service (1974) 133 CLR 345 Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 Chin v Legal Practice Board of Western Australia [2009] WASCA 117 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 Commonwealth v McCormack (1984) 155 CLR 273; [1984] HCA 57 Cooper v Dummett [1930] 2 WN 248 Department of Health and Community Services (NT) v JWB and SMB (Marion's case) (1992) 175 CLR 218; [1992] HCA 15 Document Name: WASC\GDA\SMITH_Anita_CaseStudy (LW) Page 3 [2012] WASC 306 Director-General v T'Hart (2003) 27 WAR 185; [2003] WASCA 110 Doyle v Commonwealth (1985) 156 CLR 510; [1985] HCA 46 Fletcher (as trustee of the Brian Fletcher Family Trust) v St George Bank Ltd [2010] WASC 75 Fry v Fry (1889) 15 P D 25 G v K [2007] WASC 319 Gosford Meats v State of New South Wales (1985) 155 CLR 368; [1985] HCA 5 Ha v New South Wales (1997) 189 CLR 465; [1997] HCA 34 Hartwig v Builders Registration Board of Western Australia [2009] WASCA 138 Hill v Green; Young v Buckley [1999] NSWCA 477; (1999) 48 NSWLR 161 John Pfeiffer v Rogerson (2000) 203 CLR 503 Jones v Moylan (1997) 18 WAR 492 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 MacIntosh v Lobel (1993) 30 NSWLR 441 Minister for Health v AS [2004] WASC 286 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Morris v Zanki (1997) 18 WAR 260 O'Dea v Allstates Leasing System WA Pty Ltd (1983) 152 CLR 359 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Public Service Association of South Australia Inc v Industrial Relations Commissioner of South Australia [2012] HCA 25 Questa Pty Ltd v Millrock Resources Pty Ltd [2012] WASC 267 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] HCA 27 R v Elliott [1955] VLR 126 Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267; [1990] HCA 36 Re E (1987) 31 DLR (4th) 1; [1986] CLB 566 Re Ronald Norman Collins v Repatriation Commission [1980] FCA 105; (1980) 48 FLR 198 Rodriguez v Telstra Corporation Ltd [2002] FCA 30 S v State Administrative Tribunal of Western Australia [2011] WASC 319 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Secretary Department of Premier and Cabinet v Hulls [1999] 3 VR 331 SG v AG [2008] WASC 123 TK, PB and LS v Australian Red Cross Society (1989) 1 WAR 335 Town of Cottesloe v Multiplex (Marine Parade) Pty Ltd [2007] WASCA 113 Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 VJC v NSC [2005] QSC 68 Document Name: WASC\GDA\SMITH_Anita_CaseStudy (LW) Page 4