A and J
[2006] WASAT 359
•7 DECEMBER 2006
A and J [2006] WASAT 359
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 359 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1391/2006 | 9 NOVEMBER 2006 & 7 DECEMBER 2006 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) MS D DEAN (MEMBER) MR J JAMES (SENIOR SESSIONAL MEMBER) | 6/12/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | 1 Public Trustee appointed pelnary guardian. 2 Enduring Power of Attorney revoked. 3 Applications otherwise dismissed. | ||
| B | |||
| PDF Version |
| Parties: | A J |
Catchwords: | Administration Guardianship Enduring Power of Attorney Cross applications by family members for appointment of guardian and administrator for elderly man Allegations of financial abuse Family conflict Need for independent administrator Public Trustee appointed No need for guardian to consent to medical treatment Wife had authority under s 119(3) Related applications concerning wife dismissed |
Legislation: | Guardianship and Administration Act 1990(WA), s 4, s 43, s 64, s 108(1)(a), s 119(3) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : A and J [2006] WASAT 359 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- MS D DEAN (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)
- GAA 1392 of 2006
GAA 1464 of 2006
GAA 1467 of 2006
- Represented Person
AND
J
Represented Person
Catchwords:
Administration - Guardianship - Enduring Power of Attorney - Cross applications by family members for appointment of guardian and administrator for elderly man - Allegations of financial abuse - Family conflict - Need for independent administrator - Public Trustee appointed - No need for guardian to consent to medical treatment - Wife had authority under s 119(3) - Related applications concerning wife dismissed
(Page 2)
Legislation:
Guardianship and Administration Act 1990(WA), s 4, s 43, s 64, s 108(1)(a), s 119(3)
Result:
1 Public Trustee appointed plenary guardian.
2 Enduring Power of Attorney revoked.
3 Applications otherwise dismissed.
Category: B
Representation:
Counsel:
Represented Person : Self-represented
Represented Person : Jeremy Curthoys
Solicitors:
Represented Person : Self-represented
Represented Person : John Sheehy
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The Tribunal heard cross-applications by family members for the appointment of a guardian and administrator for J, and for the appointment of an administrator for his wife, A. The applications were made against a background of intense conflict between J and A's adult children, and between some of the children and A.
2 There was no dispute that J was unable to make any decisions for himself. Although he had previously made P, his step-grandson, the donee of an enduring power of attorney, P was unable to act effectively as donee because of the conflict within the family. The Tribunal found J was in need of an independent administrator. It revoked the enduring power of attorney and appointed the Public Trustee administrator for J.
3 The guardianship application in respect of J sought the appointment of a guardian to make decisions concerning his medical treatment. However, as s 119(3) of the Guardianship and Administration Act 1990 (WA) conferred authority on A, as J's spouse, to make decisions concerning his medical treatment, there was no need for a guardian to be appointed for that purpose. There being no other need, the application for the appointment of a guardian for J was dismissed.
4 The Tribunal was satisfied that A was capable of making decisions on her own behalf and dismissed the application made in respect of her.
Background
5 These reasons concern four applications in respect of A and J, who are husband and wife. The applications, made pursuant to the Guardianship and Administration Act 1990 (WA) (the Act), are:
1) an application by P, A's grandson, for the appointment of an administrator for A;
2) an application jointly by A and her daughter, F, for the appointment of a guardian for J; and
3) an application by P for the appointment of an administrator for J;
4) an application jointly by A and her daughter, F, for the appointment of an administrator for J.
(Page 4)
6 A hearing of the applications on 9 November 2006 was adjourned so that further evidence could be obtained as to A's capacity to make decisions about her own health and wellbeing and about her financial affairs.
7 The Tribunal reconvened on 7 December 2006 and gave its decisions orally at the conclusion of the hearing.
8 The following reasons were delivered orally at the conclusion of the hearing. The transcript has been amended only where necessary for clarity or to remove information that might identify the parties.
Reasons for decision: the application for the appointment of an administrator for A
9 As we indicated during this morning's hearing, taking into account the medical evidence before us in relation to A's capacity, and in particular the reports of Dr B dated 17 November 2006 and Dr M dated 21 November 2006, both of which state quite clearly that A has capacity to manage her financial affairs, we can find no basis for finding that A lacks capacity and for making the order sought.
10 Having found that A is capable of managing her financial affairs, it is not relevant for us to inquire whether she is in need of an administrator or who would be most suitable to act as her administrator.
11 Accordingly, we dismiss this application.
Reasons for decision: the applications concerning J
12 There are three applications concerning J before the Tribunal. It is common ground among the family, and we are satisfied, that J is not able, within the meaning of s 43 and s 64 of the Act, to make decisions about his personal health and wellbeing or about his financial affairs.
The application for the appointment of a guardian for J
13 The application as filed with the Tribunal seeks the appointment of a guardian for J to make decisions about his medical treatment and accommodation.
14 As J is now living in a nursing home, there is no current need for a decision to be made about his accommodation. Counsel for A has indicated that, depending on other matters, a decision might need to be made in future about a change in his accommodation. That may be, but it
(Page 5)
- would depend on any number of things. We see no need for a guardian at this point for this purpose.
15 A has proposed that her daughter, F, be appointed J's guardian for the purpose of consenting to medical treatment and health care. A is elderly and has herself been in hospital in the past. She is concerned about what might happen in future if she is not, for some reason, able or available when decisions need to be made about J's medical treatment. She would prefer that F have formal authority, to make decisions, in consultation with A, about J's treatment.
16 We understand A's reasons for wanting in place a means by which decisions can be made for her husband in the event that she is not able to make decisions for him.
17 However, we are bound to observe the principles in s 4 of the Act, including the principle that a guardian shall not be appointed where the person's needs could be met by a means that is less restrictive of his or her freedom of decision and action than a formal appointment. We accept what counsel for A says, that it may be somewhat circular, once a person has lost all capacity to make any decisions for themselves, to consider less restrictive means of meeting their needs; the notion of a person's freedom of decision and action may have little content in such a case. But it is nevertheless an important principle.
18 A has authority under s 119(3) of the Act, as J's spouse, to make decisions on his behalf about his treatment. She is entitled to consult any person, in the family or outside it, including F, to help her make any decisions.
19 We accept what counsel says, that we should not limit ourselves only to J's current needs but should look at least some way into the future. However, apart from anything else, we have not been presented with evidence that treatment decisions do in fact need to be made for J. We can assume, given his age and that he is in a nursing home, that some decisions may need to be made about medication and so on, but nothing before us suggests that other decisions are imminent or likely.
20 We have also taken into account that, given the deep divisions within the family, the appointment of F, or any family member, is likely only to perpetuate those divisions.
21 On balance, we are not satisfied that J is in need of a guardian to make decisions concerning his treatment, and we dismiss this application.
(Page 6)
The applications for the appointment of an administrator for J
22 We have before us two applications seeking the appointment of an administrator for J.
23 We need to deal with one application only; we will deal with the application made by P for the simple reason that it was lodged before that made by A and F. We therefore dismiss the application by A and F. Having said that, we have taken into account the submissions made by them and by others about the appointment of an administrator for J. It is simply an administrative matter that we need to deal with only one application.
The enduring power of attorney in favour of P
24 On 15 May 2004, J executed an enduring power of attorney (EPA) in favour of P. It is evident that the intense family conflict has meant, among other things, that P is unable to obtain the information and records he considers necessary to perform his functions as donee and to carry out effectively his duties as donee. We say that without intending any reflection on P because he seems to us to have attempted diligently to perform his functions in J's best interests as far as possible in the circumstances.
25 However, the conflict within the family and the level of mistrust is such that P simply cannot perform his functions and so we revoke the EPA pursuant to our powers under s 108(1)(a) of the Act.
Appointment of an administrator
26 We are satisfied that J is in need of an administrator.
27 There are the funds being held in the trust account of his solicitors; his nursing home fees need to be paid; and there will almost certainly be the matter of dealing with Centrelink including the possible raising by Centrelink of an overpayment.
28 As to who that administrator should be, A and F propose they be appointed joint administrators; P submits that an independent administrator is required.
29 We accept that J and A's property is all in joint names and that there is clearly sense in A acting as his administrator. We accept that, if appointed, she would need assistance and that, under normal circumstances, F would be suitable to act with her.
(Page 7)
30 P has said that, although he maintains that an independent administrator is necessary, he would have confidence, if A and F were appointed, in the scrutiny by the Public Trustee to which their administration would be subject, and he would have no objection to their appointment.
31 However, we are mindful of the potential for continuing conflict within the family and the difficulty this could cause A in acting as her husband's administrator. It is not a function she can simply hand over to F or anyone else: she must actively manage her husband's estate and act unanimously with any jointly appointed administrator. We are not persuaded that that is what would in fact happen if she were appointed jointly with F. We think it probable that A would effectively hand authority to F, and that other family members would continue to attempt to exert influence over the administration.
32 More importantly, however, we consider it in J's best interests to have an independent administrator during the period of the current Centrelink investigation. His and A's interests in the matter are not necessarily identical. They may have different knowledge and understanding of the background to any alleged overpayment and, in the event of action for recovery, or prosecution, different defences.
33 Taking all of this into account, we have therefore decided that the Public Trustee should be appointed J's plenary administrator for 12 months. We recognise that that there will be some cost involved on account of the Public Trustee's fees but it should not be great considering that the estate itself is straightforward. Also because the estate itself is straightforward, we do not believe that the Public Trustee's administration will be hampered by bureaucracy as can happen in more complex estates.
34 We have made the order for 12 months so that it will be reviewed at that time. It may be appropriate at that time for a family member to take over responsibility as administrator.
Orders
35 The Tribunal will therefore make orders that:
1. The Public Trustee is appointed plenary administrator for J with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
(Page 8)
- 2. The appointment of the Public Trustee will be reviewed after 12 months.
3. The enduring power of attorney made on 15 May 2004 whereby Johannes Josephus Numeyer appointed Paul Vos his donee is revoked.
4. The applications are otherwise dismissed.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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