AG - [2022] WASAT 4 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   AG [2022] WASAT 4
MEMBER:   DR E MARILLIER, MEMBER
HEARD:   9 FEBRUARY 2021, 30 MARCH 2021, 25 AUGUST 2021 AND 18 NOVEMBER 2021
DELIVERED          :   19 JANUARY 2022
FILE NO/S:   GAA 3560 of 2020

KG
Applicant
RM
Third Party

FILE NO/S: GAA 411 of 2021

DG and JH
Applicants
RM
Third Party

Catchwords:

Guardianship and Administration - Who should be appointed - Views and wishes of the represented person - How administrator seen as acting in best interests of represented person - How guardian seen as acting in best interests of represented person - Existing supportive relationships - Turns on own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(7), s 40, s 43(1)(b), s 43(1)(c), s 44, s 44(2)(c), s 51, s 51(e), s 51(g), s 64(1), s 68, s 68(3)(b), s 70, s 70(2), s 70(e), s 70(g), s 86, s 110ZD
State Administrative Tribunal Act 2004 (WA)

Result:

Private guardian appointed
Public Trustee appointed administrator

Category: B

Representation:

GAA 3560 of 2020

Counsel:

Applicant	:	Mr R Bannerman
Third Party	:	Mr L Barry and Ms D Taylor

Solicitors:

Applicant	:	Bannerman Solicitors
Third Party	:	Vibe Legal

GAA 411 of 2021

Counsel:

Applicants	:	Mr R Bannerman
Third Party	:	Mr L Barry and Ms D Taylor

Solicitors:

Applicants	:	Bannerman Solicitors
Third Party	:	Vibe Legal

Case(s) referred to in decision(s):

EBF and DMW [2008] WASAT 236
HH [2014] WASAT 142

REASONS FOR DECISION OF THE TRIBUNAL:

Background

AG is now 85 years old and is a retired high school teacher. Applications were made in September 2020 and January 2021 for review of appointments the Tribunal made initially in September 2019. AG suffered a fall in March 2019 sustaining a fractured hip and a subarachnoid haemorrhage. Significant cognitive decline was noted while he was having inpatient rehabilitation, with repetitious conversation and shortterm memory loss evident to hospital staff and family members.[1]
[1] Hospital Discharge Summary, 28 March 2019 - 7 April 2019, Consultant Dr K.A.
The Tribunal appointed the Public Trustee (PT) as the plenary administrator and the Office of the Public Advocate (OPA) as the limited guardian for accommodation, treatment and services decisions for AG, with both orders to be reviewed within five years. The Tribunal also revoked an enduring power of attorney (EPA) dated May 2019 appointing AG's son DG and authorised the administrator to allow AG's long-standing practice of permitting his friend RM to live in one of his properties at a nominal rent, while directing that a review should be sought if the administrator formed the view that this gifting order affected the ability of the estate to meet AG's care and maintenance needs.
AG's niece, KG, now seeks review of the guardianship order, proposing that she be appointed instead of OPA, and AG's children DG and JH seek review of the administration order. Initially they proposed their joint appointment, but during the course of the hearing, JH withdrew, leaving DG as the proposed alternative to PT. Both applications were taken as being commenced under s 86 of the Guardianship and Administration Act 1990 (WA) (GA Act).[2]
[2] ts 3, 9 February 2021.
The applicants had various concerns regarding, inter alia, the cost of having PT as the administrator and the cost of maintaining AG living at home with the assistance of paid carers, the difficulty of complying with the requirement to include RM in attending medical appointments for AG and feeling that the independent appointees were not making decisions in the best interests of AG. They suggested that they could meet his needs more swiftly and economically.
KG's application accused RM of 'claiming to be his partner (for financial benefits) emotionally blackmailing [AG] which is effecting (sic) his mental health. I believe it's a form of 'elder abuse'.[3] KG also stated she was not happy with the performance of OPA as guardian and stated that a relative of RM worked at OPA 'and has been unfairly privy to information which has been withheld from [AG's] family.'[4] I note that this latter claim was investigated by OPA in 2019 and no conflict was identified in the way AG's guardianship was working.
[3] KG's application dated 8 September 2020.
[4] Ibid.
A directions hearing was held on 9 February 2021 due to:
•the large number of documents filed by the applicants;
•their request to withdraw previous submissions from legal representatives they had subsequently ceased to instruct;
•the addition of the administration review application (where service had only been effected the day prior to the hearing);[5]
•filing of documents after the date set by the Tribunal;
•non-provision of documents to the legal representative of RM;[6] and
•the Tribunal's desire to provide and highlight the importance of the OPA investigation report of 2019 in understanding AG's views and wishes.[7]
[5] ts 3, 9 February 2021.
[6] Ibid, page 7.
[7] Ibid, pages 12 and 40.
On 11 March 2021, RM filed a family law initiating application in the Family Court.
The guardianship and administration matters were heard on 30 March 2021 and 25 August 2021, with re-listing required due to public health orders restricting in person attendances. Difficulties at the February hearing had demonstrated the importance of allowing in person attendance for the many parties in this matter.
The decision was reserved on 30 September 2021, however in subsequent written closing submissions the applicants alerted me to a significant change in circumstances. AG moved from living at home to permanent residential care on 25 October 2021. The applicants submitted that this might impact my decision to the point where the matter should be reopened to allow me to hear from parties on the new situation.
The final hearing was held on 18 November 2021, and the decision was reserved.
I have determined that it is in the best interests of AG to appoint KG as his limited guardian for medical treatment decisions, with ancillary orders to facilitate AG's ongoing supportive relationship with RM. I find that it is in AG's best interests for plenary administration to remain with the Public Trustee. My reasons for decision follow.

The principles to be observed

In making a decision the Tribunal must observe the following principles:
•the Tribunal's primary concern is the best interests of the person concerned;[8]
•every person is presumed to be capable of looking after his or her own health and safety; making reasonable judgments in matters relating to their person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to the estate; until the contrary is proven to the satisfaction of the Tribunal;[9]
•orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of his or her freedom of decision and action;[10] and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned and take them into account.[11]
[8] Section 4(2), GA Act.
[9] Section 4(3), GA Act.
[10] Section 4(4), GA Act.
[11] Section 4(7), GA Act.
The GA Act sets out the basis on which the Tribunal should determine who should be appointed as the guardian and administrator of a person who is found to be in need of those appointments.[12] It also describes the ways in which a guardian and an administrator can be seen to be acting in the best interests of the represented person.[13] The importance of these sections in the issues arising in this case was drawn to the attention of the parties.[14]
[12] Section 44 and s 68, GA Act.
[13] Section 51 and s 70, GA Act.
[14] ts 25-26, 9 February 2021.
The applicants' legal representative highlights in their closing submission the Tribunal's obligations under the State Administrative Tribunal Act 2004 (WA) (SAT Act) including complying with the rules of natural justice and procedural fairness.[15] I note that 'procedural fairness requires that a Tribunal give the parties a fair hearing and is free from actual or apprehended bias.'[16] This includes that notice of the date and place of the proceeding, disclosure of all information that is 'credible, relevant or significant' to the decision, reasonable time to prepare the case and an adequate opportunity for the parties to put their case and test the case against them is provided.[17] The decision-maker must be 'impartial and disinterested, so that they are open to persuasion and able to judge the case on its merits.'[18]

The evidence before the Tribunal

[15] Written Submissions on behalf of JH and DG in GAA 411/2021, 21 September 2021, page 21 citing EBF v DMW [2008] WASCA 236 at [45] (sic) - I note this appears in fact to refer to EBF and DMW [2008] WASAT 236 at [41]-[43].

[16] Council of Australian Tribunals, 'Practice Manual for Tribunals', 5th edition, 2020, page 46.

[17] Ibid.

[18] Ibid, page 55.

The Tribunal prepared hearing books, containing the following material:
•the applications under s 40 of the GA Act in 2019 and s 86 of the GA Act in 2020 and 2021;
•the orders made in those proceedings;
•statement of RM (received 23 November 2020) and Position Statement of RM (filed 9 March 2021);
•PT reports 17 November 2020, 9 March 2021, 11 March 2021, 24 June 2021, 20 August 2021, 23 August 2021;
•OPA reports 10 November 2020, 9 March 2021 and 20 October 2021;
•medical report Dr GO (GP) 21 September 2020 with attached correspondence from specialist geriatrician Dr VK dated 23 July 2020 and 19 March 2020, and Aged Care Assessment Team (ACAT) of 23 January 2020;
•OT reports of CG 2 September 2020 and 21 September 2021;
•submission of EG (8 October 2020) (sister of RM);
•submission of MS (29 September 2020) (friend of AG);
•Statutory Declaration of ML (support worker) (29 January 2021);
•OPA investigation report 17 September 2019;
•PT report 11 September 2019;
•transcript of hearing 19 September 2019;
•documents filed by the applicants including -
Support letters:
1)support letter JH;
2)support letter RG;
3)support letter MG;
4)witness and support statement GP (friend of AG);
5)support statement JHA (ex-wife of AG, mother of DG and JH);
6)Case for Guardianship (13 December 2020)/Case for Administrative change (31 January 2021) DG.
Statements:
7)ML statement re: MS;
8)KG statement re: MS;
9)RC reference and witness statement (friend of AG);
10)JK Statement.
Appendices:
11)Appendix 1 - KG Report from GP;
12)Appendix 1.1 - Witness Statement KG;
13)Appendix 1.2 - Boat Shed Witness Statement;
14)Appendix 2 - OPA Notification Appointment RO;
15)Appendix 2.1 - KG Emails failure of OPA to respond;
16)Appendix 2.2 - Godfrey OT Assessment Sept 2020;
17)Appendix 2.3 - OPA Position on finding aged care assistance;
18)Appendix 3 - Summary of RSS Roster hours by employee;
19)Appendix 3.1 - Bar Chart RSS Carer by % hours worked;
20)Appendix 4 - Letter to OPA regarding conflict of interest;
21)Appendix 4.1 - OPA SB response letter;
22)Appendix 5 - event time line;
23)Appendix 6 - Letter to OPA re conduct of RM;
24)Appendix 6.1 - email from OPA representative RO to DG;
25)Appendix 7 - Tribunal order AG 2625-2019;
26)Appendix 8 - email appointment with Dr B and RM/KG;
27)Appendix 8.1 - RM to KG Email Meet at Clinic;
28)Appendix 9 - letter to OPA from JH re concerns on social isolation;
29)Appendix 10 - RSS Request for Witness Statement from DG-signed;
30)Appendix 10.1 - RSS BC Response to Request for Witness Statement;
31)Appendix 10.2 - Photo graphic evidence;
32)Appendix 11 - AG welfare letter from KG to DG;
33)Appendix 13 - Reference for DG by RC;
34)Appendix 15 - Interference with electronic Communication;
35)Appendix 16 - Evidence of financial transactions;
36)Appendix 17 - Evidence of favouritism screenshots;
37)letter to PT from DG, JH, KG and ML -2 October 2019;
38)Summary of Documentation DG - 31 January 2021;
39)analysis of care options DG - 27 June 2021.
The Tribunal also considered:
•closing and responsive submissions on behalf of the applicants; and
•closing submissions from RM's legal representative.
At the hearings, JH, DG, KG, OPA and PT all gave evidence. I considered all of the above material but will only refer in my reasons to those aspects which relate directly to the issues to be determined in this matter.

Does AG have capacity to make reasonable decisions in his own best interests in regard to personal and financial decisions?

Dr GO (AG's GP) and Dr VK (AG's geriatrician) both expressed the opinion in their correspondence and Dr GO's medical report to the Tribunal of 21 September 2020 that by reason of his sub-arachnoid haemorrhage[19] and a progressive neurodegenerative disorder (probable Alzheimer's dementia)[20] AG lacks capacity to make simple or complex financial decisions, legal decisions, or personal decisions regarding medical treatment, accommodation or service provision.
[19] Medical report Dr GO, 21 September 2020.
[20] Dr VK letter to Dr GO, 22 July 2021 provided by OPA.
None of the parties disagreed with the medical opinion. DG stated:
… his memory is so transient that Dad - you can - you can explain something to him, and he will understand it, but then if you - 10 minutes later it might not be there. So, you can actually - if he's given the information, it might stay there for two minutes and then evaporate.'[21]
[21] ts 15, 25 August 2021.
AG has a complex estate valued at $3,475,730.71 on 16 November 2020, including the property in which he lived until the recent move to aged care, the property in which RM lives, and significant superannuation and cash assets.[22] Dr GO states AG has 'no insight into the complexities of bills. Extremely poor short-term memory. Easily confused.'[23]
[22] PT report, 16 November 2020.
[23] Medical Report, Dr GO, 21 September 2020.
I am satisfied that by reason of his mental disability (progressive neurodegenerative disorder), AG:
a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
b)is in need of an administrator of his estate.[24]
[24] Section 64(1), GA Act.
The Occupational Therapy (OT) reports of CG of 2 September 2020 and 21 September 2021 demonstrate the increasing concerns for AG's safety, with 'his falls risk exacerbated by his cognitive impairment which presents as memory loss, lack of insight and difficulty with new learning'.[25] CG notes that AG:
is unwilling to discuss future care scenarios that involve residential care. … He lacks insight into safety concerns for his wellbeing and does not appreciate the risks associated with his declining physical and cognitive health.[26]
[25] OT assessment of CG, 21 September 2021.
[26] Ibid.
RO, who has been AG's guardian since 2019, reports AG 'has steadfastly refused to acknowledge that any changes are required to his current situation to make things safer for him'.[27]
[27] OPA email to the Tribunal, 20 October 2021.
I note that some major decisions regarding where AG shall live and the services to which he shall have access have now been concluded through the decision to move AG into permanent residential care.
There remain ongoing significant decisions in relation to medical treatment, including end of life care planning, which require a substitute decision-maker. Given the contention by the applicants that RM is not AG's de facto spouse, and the suggestion that KG (AG's niece) should be appointed as guardian, the provisions of s 110ZD of the GA Act will not provide a less restrictive alternative in this case.[28]
[28] Section 110ZD would allow the spouse or de facto of a person who lacked capacity to make medical treatment decisions, followed by children, parents, siblings, an unremunerated primary care giver, and then any other person who maintains a close personal relationship.
I am satisfied by the reports of the doctors and the OT, as well as the observations of his family, that AG's lack of insight due to his cognitive impairment leaves him:
i)incapable of looking after his own health and safety;
ii)unable to make reasonable judgments in respect of matters relating to his person;
iii)in need of oversight, care or control in the interests of his own health and safety; and
iv)in need of a guardian.[29]

What are AG's views and wishes?

[29] Section 43(1)(b) and s 43(1)(c), GA Act.

Due to AG's frailty and cognitive impairment, he did not attend the hearings in 2021. I was therefore unable to hear from him directly regarding his wishes.
The medical opinions referred to above make it clear that AG currently lacks capacity to appreciate the complex interplay of his estate, his care needs, the Family Court claim and the relationship between RM and the applicants.
The applicants stated that they had discussed their applications with AG, and that he supported their appointment. I can give little weight to this evidence given AG's level of impairment.
As noted during the proceedings, the evidence of AG's views and wishes available from an independent source is from the OPA investigation of 2019, and what can be deduced from AG's actions over his life.
The following chronology is constructed from the OPA report of 2019, the transcript of the 2019 hearing where AG was present, and the written submissions and oral evidence considered in this matter.

Chronology

1981AG divorces JHA (mother of DG and JH).[30]
[30] Written submissions on behalf of JH and DG in GAA 411/2021, 21 September 2021, page 2.
1989AG develops friendship/relationship with RM after being introduced at Teacher's Union Protest rally, subsequently takes overseas holidays with her.[31]
[31] OPA Investigation Report 17 September 2019, statement of EG, 8 October 2020.
20 October 1990     AG purchases land and, with RM, designs and builds a house in Como with the intention that RM lives in it.[32] Both AG and RM acknowledge that the rent she pays is cheap, but say she pays upkeep and maintenance, and has made improvements to the property at her own expense.[33]
[32] OPA Investigation Report 17 September 2019, Statutory Declaration of RM, 24 November 2020.
[33] OPA Investigation Report 17 September 2019, Statutory Declaration of RM, 24 November 2020.
20 June 2010 to
22 October 2010     RM and AG live together for four months at the Como property prior to him moving into his Manning property.[34] RM and AG describe their relationship as 'like husband and wife, we just don't live together.'[35]
[34] OPA Investigation Report 17 September 2019, Statutory Declaration of RM ,24 November 2020.
[35] OPA Investigation Report, 17 September 2019.
February 2019        AG pays RM $100,000. (AG explains to OPA in September of 2019 that this 'is money to [RM] as my partner and in repayment of all the money she has spent on my house. It's only around 7% of my funds so no big deal', 'these transactions are 100% legitimate. I knew what I was doing', 'I believe there is a view that [RM] is manipulating me, she's my lifetime partner' and 'I gave my dear friend $100,000 and all of a sudden alarm bells'.[36] (OPA and PT raise concerns regarding the consistency and source of the explanations of the reason for the payment in their reports in September 2019).

[36] Ibid.
5 March 2019        email to MS from AG 'RM has now been with me for about 28/29 years in a steady no dramas relationship'.[37]
[37] Email attached to statement of MS, 8 September 2019, matter GAA/2625/2019.
21 March 2021       AG falls, sustaining a fractured hip and a subarachnoid haemorrhage. RM notifies DG, who flies home from overseas where he has been working.
22-28 March 2021   Admitted to hospital for hip surgery.
28 March 2021 to
7 April 2021          Admitted to hospital for rehabilitation - memory impairment noted by hospital staff and family. Social worker notes supportive relationships AG has with DG, JH and RM. Social worker also notes RM currently having her own health issues and unable to provide any high level of support.[38] RC reports in his statutory declaration of 4/11/2020 that when nurses told RM and RC that AG would need care when he returned home, '[RM] immediately commented that she would not be able to care for [AG] because of some unspecified health issue' and that after she left AG said to RC 'You know, [RC], money can't buy love' and 'after everything I have done for her and the money I have given her and she is not even prepared to look after me for a few short weeks'.[39] In September of 2019, AG and RM told the OPA investigator that RM's 'heart specialist [advised] that she couldn't be [AG]'s carer following his discharge'.[40]
26 May 2019          AG signs Enduring Power of Attorney (EPA) appointing DG with JH as substitute when DG is out of the country or unable to attend to his affairs due to work commitments. At the hearing on 25 August 2021, the legal representative of RM asked DG about this: 'If you had formed a view at that point that he didn't have capacity, do you not think it was prudent then that he not sign a legal document?' DG replied 'Well, we - we decided we would try to act in his interests'.[41]
June 2019AG gives RM $15,000 for dental work. AG stated in September 'It was $12,000 but I gave her $15,000'.[42] OPA reports AG also said 'he had worked hard all his life and saved money up so why can't he spend it or give it away how he likes now? 'It's my right!'.[43]
Mid 2019episodes of AG wishing to make excessively generous gifts to JH ($60,000-$75,000 to help with emergency travel), his cleaner ($200 for $70 worth of work) and a checkout worker at his local shops (not known to him, and to whom he wished to give $5,000). These were refused in the first two cases and averted by RC in the third before AG could go to the bank to put the plan into action.[44]
2 August 2019 JH lodges s 40 application seeking appointment jointly with DG as guardian and administrator for AG. OPA reports 'AG felt if administration needed, his inclination is not to go with his son and daughter, nor for EPA to continue. He would prefer the neutral appointment of PT notwithstanding the fees. If there is a need for a guardian, then AG would want it to be RM - 'we are like husband and wife, she knows me better than anyone else'.[45] AG noted that he had not had much contact with his daughter for around 20 years and was upset that she had not discussed the application to the Tribunal before applying.[46]
6 August 2019       Tribunal makes emergency appointment of PT as administrator under s 65 of GA Act.
3 September 2019   RM contacts OPA investigator and gives alternative explanation for reasons $100,000 was provided (for future expenses, not repayment).[47]
10 September 2019 AG unable to recall lump sums given to RM and reasons for them in conversation with PT Trust Manager. Subsequent voice mail concerns the Trust Manager that information had been provided to AG by another source, in circumstances where RM had been present in the home at the time. The Trust Manager formed the view that AG was vulnerable to exploitation.[48]
19 September 2019 Tribunal hearing - DG and JH both acknowledge that AG is hostile to their appointment to the point where it would not be workable.[49]
[38] South Perth Hospital Discharge summary 28/3/2021 - 7/4/2021.
[39] RC Statutory declaration, 4 November 2020.
[40] OPA Investigation Report, 17 September 2019.
[41] ts 25, 25 August 2021.
[42] OPA Investigation Report, 17 September 2019.
[43] Ibid.
[44] ts 36, 19 September 2019.
[45] OPA Investigation report 17 September 2019, page 4.
[46] Ibid, page 5.
[47] Ibid, page 7.
[48] PT Report, 10 September 2019.
[49] ts 6, 19 September 2019.

AG stated:
[RM] is the love of my … this is so intrusive … I'm sorry, I'm an emotional old bugger, but when my whole bloody family is around me making their own judgments about how I - my relationship with [RM] … I find it very difficult … because they haven't always approved of it. I know that. I know there's one member who said, 'What the hell are you doing supporting [RM].'[50] AG stated 'If I was married to her - which I am not, but it's a virtual marriage, in a way - there would be no question about it at all. I'm as close to her as any married couple. We've never (indistinct) we just live in different houses. So, yes, it's easy to make a judgment out there about me passing on $100,000 and whether she had influenced me in some way or she had manipulated me in some way'.[51]
[50] Ibid, page 15.
[51] Ibid, page 18.
ML noted the presence of a '30th anniversary cake' in AG's fridge on a recent visit.[52]
[52] Ibid, page 31.
RM noted (when AG was saying JH never saw or called him) that in fact, since the fall, JH was visiting at least three times a week.[53]
[53] Ibid, page 44.
Regarding his wishes for the Como property, AG said:
The long-term idea is that I will possibly die before she does, because we're both at the end - at the tail end of our lives. And she will take the whole house as is. You know, the - she will have title to the property. She won't have to pay money into my estate or anything like that. Somehow - I'm not sure what the mechanism of actually transferring the title to her - that may incur some capital gains tax or something like that. I don't know about that.'[54]
[54] Ibid, page 47.
He also stated his intention was for RM to stay there, as long as she wanted to, 'She has built up the house and the garden and everything.
JH stated 'Given that RM's in Dad's will - we've always known that she would inherit the house.'[55]
10 November 2020 OPA Report describes family meeting in November 2019 'Given AG's strong desire to remain living in his home, it is anticipated that any decision needed about accommodation is likely to follow a significant incident or crisis.'[56] OPA states this is a decision that is unanimously supported by family members and RM.
22 January 2021     OPA Report - notes ongoing 'the significant opposition of [the applicants] to [AG] maintaining a relationship with his friend and loved-one [RM]', despite his ongoing identification of her as 'the most important person in my life', 'we've been friends for 31 years' and that he 'clarified that he would consider them to be a couple.'[57]
9 March 2021        OPA Report notes family concerns regarding the cost of care have led to external review which identified no cheaper option for in-home care. The need to explore residential care options is noted and the importance of trialling respite as AG keen to stay at home as long as possible. OPA note that the ongoing animosity between the family and RM means independent appointments are still required.[58]
30 March 2021       Tribunal hearing - KG agrees that the OPA decision for AG to stay at home for as long as possible with support is correct.[59] DG states there is a moral obligation to allow RM to stay in the Como property as she has been there 28 years or so.[60]
25 August 2021      Tribunal hearing - ML (AG's niece) indicates that she has been inviting RM to family Christmas 'you know, courtesy to [AG], bring [RM] around, and she came occasionally' for 'roughly 25 years or so. Quite a long time. Most of the time, she didn't come, because she had her boys and her family to go to for Christmas'.[61]
18 November 2021 Tribunal hearing - DG hands up a photocopy of a document he states he found when closing up the house after AG entered residential care. DG states he found it in a file regarding the 2019 hearing, that it is on cardboard or cartridge paper, and that the handwriting is AG's. I read it aloud to check my interpretation of the text - 'I welcome the application for guardianship (not attorney) and all of what that normally implies. I would not welcome control of my finances by my daughter. I'd much prefer it to be managed by a person or institution who has no monetary interest (other than fees) in the capital value of the estate. A Trustee Co??? or – failing that – my son [DG] better myself! [AG].'[62] I include this passage only to note it is largely consistent with the OPA investigator report regarding AG's preference for an independent appointee (if orders were made), notwithstanding the cost, over a family member (although I note he would prefer DG over JH).
[55] Ibid, page 55.
[56] OPA Report, 10 November 2020.
[57] OPA Report, 22 January 2021.
[58] OPA Report, 9 March 2021.
[59] ts 35, 30 March 2021.
[60] Ibid, page 60.
[61] ts 59, 25 August 2021.
[62] ts 15, 18 November 2021.
My conclusion from the evidence listed above is that AG's wishes were to stay at home for as long as possible (which has been achieved through the decisions taken by OPA and PT with input from family and RM).
His actions in purchasing land and building a house that RM has lived in on concessional terms for approximately 29 years (and which the family understand was to be left to her in AG's will), paying for joint overseas holidays and providing other financial support to RM[63] as well as voicing an expectation (and disappointment this expectation was not met) to RC that RM would care for him after his hip fracture, demonstrate a pattern of behaviour (which began at a time where there was no question regarding his capacity) of wanting to support RM, and have an ongoing relationship with her.
[63] RC Statutory declaration, 4 November 2020.
In regard to who should be appointed as his administrator or guardian, in 2019 it is clear AG did not think he needed substitute decisionmakers. However, if an administrator were to be appointed, he did not want it to be DG and still less JH, but had a preference for an independent appointee, and this preference remained even after the OPA investigator provided explanation regarding the cost implications.[64]
[64] OPA Report, 17 September 2019, page 4 and page 8.
AG preferred that RM be appointed as guardian, as 'she knows me better than anyone else'.[65] I note that at the 2019 hearing, RM expressed willingness to be appointed if this could be a joint appointment with OPA, due to her concern if she was the sole decisionmaker that she would be open to criticism if she made a decision the family disagreed with.[66] Given this was not an option, RM expressed the view that an independent appointment would be preferable.[67]

Who should be appointed as guardian?

[65] Ibid, page 4 and page 7.

[66] ts 8, 19 September 2019.

[67] Ibid, page 9.

Section 44 of the GA Act describes what the Tribunal must consider in determining who may be appointed guardian:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal -
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible -
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
Section 51 of the GA Act describes how a guardian is seen as acting in the best interests of a person:
51.Guardian to act in best interests of represented person
(1)Subject to any direction of the State Administrative Tribunal, a guardian must act according to the guardian's opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if the guardian acts as far as possible -
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for themself and of making reasonable judgments in respect of matters relating to their person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
(emphasis added).
KG proposes herself as guardian for AG. Her appointment is supported by JH, DG, other family and friends and now by OPA since the decision to move AG to residential care has been concluded. KG is a registered nurse and has been actively involved in caring for AG and raising concerns regarding his safety and increasing falls risk with OPA, leading to the repeated functional assessments by CG and ultimately to the conclusion that AG was no longer safe to live at home and required a move to residential care.
I note that the effect of the orders of 2019 has been to afford AG the combined benefit of the independence of OPA (allowing and facilitating the ongoing involvement of RM in his life which accords with AG's wishes as outlined in the chronology) and the more frequent personal contact and observation that can be provided by RM and family members including KG, DG, JH and ML. This has allowed him to live at home for as long as safely possible, which is also consistent with his wishes.
KG argues that she can provide more personal, responsive and timely decision-making for AG than OPA. I accept that this is the case, although I have no concerns regarding the way the OPA guardian has managed this challenging case. I particularly note that KG's concerns regarding OPA response times to emails she sent regarding organising a haircut and window washing for AG demonstrate a failure to understand the role of the guardian.
RM is concerned that KG's antipathy towards her as expressed in the application, her statement that it is inconvenient to accommodate RM attending AG's medical appointments (as required by OPA),[68] her failure to include RM in group emails regarding AG[69] and the investigation of residential care options for AG[70] calls into question her willingness to involve RM if she were appointed as the guardian for AG. RM states that she has a supportive relationship with AG. KG acknowledged that 'It has changed over the years. But he has had a relationship in some form with RM, yes'.[71]
[68] Member's notes taken 30 March 2021 – I note that the transcript recording was incomplete. Accords with RM closing submissions 21 September 2021, page 5.
[69] ts 54-55, 25 August 2021, Appendix 2.3 OPA email to KG/JH/DG/ML/RM/PT/JW dated 13 September 2020, Hearing Book (HB), page 162.
[70] RM closing submissions, 21 September 2021, page 4, ts 21, 25 August 2021.
[71] ts 37, 30 March 2021.
I am satisfied that RM does have a supportive relationship with AG. AG stated to the OPA investigator in 2019, and to his guardian RO on multiple occasions that RM is the most important person in his life, as detailed in the chronology. RO in an email to DG on 26 February 2020 states 'RM is who your Dad [AG] wishes to attend medical appointments with him. She has done for a long time and he feels comfortable with her'.[72] The statement of ML (care worker) indicates that RM was visiting AG daily at home from 9.00 am until 12.00 noon six days a week and spends the most time with him.[73] ML states that RM at the time was liaising between OPA, doctors and support workers. Correspondence from specialists to the GP note that RM is present and able to provide information on behalf of AG.
[72] OPA email to DG, 26 February 2020, Appendix 6.1, HB page 137.
[73]. Statement of ML 29 January 2021, HB, page 335.
ML notes that RM at times discussed the tension between the applicants and herself and her concerns regarding the house she lives in with AG, and AG would become upset during or after these conversations. DG and KG referred to this as evidence of emotional and financial abuse.[74] I note that DG described AG becoming upset when DG and KG raised with him the cost of in-home care, the cost of PT fees and when DG and KG told AG that RM had made the Family Court claim, which is inconsistent with a position that having upsetting conversations with AG is abusive.[75]
[74] KG application, 8 September 2020, ts 36, 30 March 2021, submission by DG, 13 December 2020 in support of KG application, HB, pages 194-206.
[75] ts 47, 30 March 2021, ts 15, 21 and 33, 25 August 2021.
It appears from the evidence that AG becomes distressed when any party discusses the tension between them, or his financial or legal affairs. I note that these discussions have occurred despite the instruction of the independent decision-makers to RM, DG and KG that such conversations should not occur due to the distress caused to AG and the fact that he cannot comprehend the complex circumstances.[76] I also note that only KG and DG are proposing themselves for appointment, RM has supported the appointment of independent decision-makers throughout.
[76] ts 48 and 49, 25 August 2021.
To take into account AG's wishes, as I must do,[77] as must a guardian[78] and an administrator[79] in making decisions in the best interests of AG, it is important to consider the material from which such wishes can be deduced, as I have done in preparing the chronology. At multiple hearings, I alerted parties to the importance of the OPA investigation report of 2019.[80] At the February hearing, arrangements were made for the parties to have immediate access to that report for review.[81] The report, along with the PT report of the same year were included in a supplementary hearing book for all subsequent hearings. Despite this, KG had not familiarised herself with AG's stated wishes in that report at the 30 March hearing, or the November hearing.[82]
[77] Sections 4(7), s 44(2)(c) and s 68(3)(b), GA Act.
[78] Ibid, s 51(e).
[79] Ibid s 70(e).
[80] ts 12 and 22, 9 February 2021, ts 41, 30 March 2021, ts 30 and 31, 18 November 2021.
[81] ts 35-37, 9 February 2021.
[82] ts 38, 30 March 2021, comments of KG legal rep and JH, ts 38, 18 November 2021.

To determine whether the concerns I have regarding KG's ability to make decisions as guardian for AG in a way that respects his wish to have an ongoing relationship with RM[83] (and therefore to actually maintain his supportive relationship[84] with RM) carry such weight that they make her unsuitable for appointment, I have considered what decisions are likely to arise for AG's guardian now that he has moved to residential aged care.
[83] Section 51(e), GA Act.
[84] Ibid s 51(g). I note that these responsibilities were understood by the OPA guardian, RO, and articulated clearly in her email to DG of 26 February 2020, HB (Appendix 6.1 of applicants' documents) page 136.
Accommodation and services decisions are no longer required. Only medical treatment decisions remain, as the ability to visit AG at the aged care facility is open to all his family and friends, and no conflict has arisen regarding visitation in this setting.
Medical treatment decisions for a man of AG's age, suffering from dementia and living in aged care, are likely to involved major decisions regarding end-of-life care and ceilings of care. It is important that these decisions are made, where possible, by a person familiar with AG's wishes in this regard.
KG is a nurse and gave evidence that she has discussed these matters with AG, despite him being somewhat reluctant to engage on the topic.[85] She noted that she had played a similar role in her father's life. RM via her legal representative stated that when she had discussed endof-life with AG in the past, he had indicated that if he was in pain and his diagnosis was terminal, he would prefer withdrawal of services.[86]
[85] ts 39-40, 18 November 2021.
[86] ts 41, 19 November 2021.
Given my findings regarding AG's views and wishes, it appears to me that AG's best interests would be served by having the combined skills and knowledge of KG and RM working together in making these difficult decisions. Sadly, the level of animosity of the applicants towards RM means RM lacks confidence that KG would include her meaningfully in any discussion (that is, consulting with RM prior to any decision being made).[87] I note that KG's evidence when I asked her how she would keep RM involved or informed (if KG were appointed) was that she would make decisions after discussion with health professionals treating AG, AG himself and family and then make a decision. KG stated, 'If I become his guardian and I have to make medical decisions, I will do that based on the best wishes (sic) of AG - of AG, not RM - of AG.'[88] KG did not address the question of how she would keep RM involved. I note that there is no suggestion in the evidence that RM has at any time suggested any medical decision that is not in the best interests of AG, and it is hard to see how having the input of the person he describes as 'the most important person in his life' would not improve the chances of the guardian making a decision in the best interests of AG at end-of-life.
[87] Closing submissions on behalf of RM, 21 September 2021, pages 4, 5 and 11.
[88] ts 39, 18 November 2021.
Given AG's expressed views on his relationship with RM, it appears that he would want her to be available to support him at times where he is unwell or dying, as well as to continue the frequent regular contact they had when he was living at home. Due to KG's lack of a clear answer to how she would keep RM involved, and the record of excluding RM from emails regarding AG's care and the residential accommodation decision, I also lack confidence that KG would involve and inform RM early if AG became unwell without additional directions in the guardianship order authorising healthcare staff (including but not limited to the staff at the aged care facility) to communicate with RM regarding AG's health. I note the context that the applicants believe that RM has financially exploited AG in the past, but also that there is no risk of that with the administration order which has been in place since 2019. Excluding RM from AG's life now is deleterious to AG, as he would be deprived of the company of a person that even the applicants acknowledge at the very least has been a close friend for 30 years.
Notwithstanding these concerns, I am persuaded that it is in the best interests of AG to have a guardian who knows him well personally for medical treatment decisions. KG is well qualified due to her professional experience, the contributions she has made to assessing and advocating for AG's health and safety in the context of her understanding that he wanted to stay at home as long as possible and the conversations she has had with him regarding end-of-life. She has indicated her willingness, and I find that she is suitable, in that the concerns I have identified can be alleviated by a direction that healthcare staff are authorised to communicate with RM regarding AG's health. A copy of these reasons will also be provided to the aged care facility so there is a clear understanding of the context in which KG has been appointed as treatment decision-maker, and the Tribunal's findings in regard to the importance of RM in AG's life.
I will therefore make orders appointing KG as the limited guardian for AG, to make medical treatment decisions.

Who should be appointed as administrator?

Section 68 of the GA Act sets out what I must consider in deciding who should be appointed as AG's administrator:
68.Who may be appointed administrator
(1)An administrator (including a joint administrator) shall be -
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal -
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2)The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that -
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible -
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4)The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act. (Emphasis added)
DG proposes himself for appointment instead of the Public Trustee. The application was made jointly with his sister, JH, and alluded to the fact that they were willing to be appointed in 2019 until it became apparent that AG was upset about the application being made, and that their appointment at that time was untenable due to his hostility towards them. The current application states that AG is no longer upset and would be happy for DG and JH to take over administration. As noted previously, JH subsequently indicated she no longer wished to be appointed, leaving DG as the sole proposed appointee.
The applicants separately expressed their concerns regarding the costs of in-home care provision,[89] the cost of PT as administrator[90] (DG stated 'PT has been quite reasonable, they are just expensive. They got [AG's funds] protected. We think we can optimise things for [AG's] care needs. We want to explore alternatives - we think they could be met more cheaply'), and their concerns that PT had not sought information from themselves or the many friends of AG who had provided statements to the Tribunal in this matter which might be material to questions arising in the Family Court matter[91] where the question of whether RM is in fact the de facto partner of AG is to be determined.[92]
[89] OPA Report 9 March 2021, HB, page 385, DG Case for administrative change, 31 January 2021, HB, pages 358-360.
[90] Member's notes 30 March 2021, ts 15, 25 August 2021.
[91] ts 39-42, 25 August 2021.
[92] Closing submissions on behalf of the applicants in GAA 411/2021, filed 21 September 2021.
DG has made it clear that he does not accept that RM is or has been AG's de facto partner, and that he believes she has been financially exploiting AG,[93] particularly taking exception to RM's acceptance of a cheque for $100,000 in February 2019 (I note AG's fall and subsequent diagnosis with cognitive impairment was a month later in March 2019), acceptance of money towards dental treatment and to fix the garage door at the house where she lives, (when an insurance claim could have been made and where RM had caused the damage), and a trip to the bank in November 2019 where $2,000 was withdrawn from AG's account. DG was aware of this because notwithstanding the appointment of PT as administrator in September, DG's internet access to AG's account remained, and DG was able to track AG (and by default RM) via Google Timeline which he had set up with a password on AG's phone.[94]
[93] ts 17-18, 25 August 2021.
[94] Closing submissions on behalf of the applicants in GAA 411/2021, filed 21 September 2021 and Responding submissions 28 September 2021, Member's notes 30 March 2021, Statutory Declaration of DG 26 July 2019, HB, pages 14-28, Request for change to Guardianship order 13 December 2020, HB, pages 194-208.
I note that DG acknowledges that the appointment of PT has prevented any possibility of financial exploitation of AG, stating 'Prior to reading this section, it must be noted that the Public Trustee has acted on this information to protect AG's financial interests. Currently there is no suggestion that AG's finances are at risk'.[95]
[95] Request for change to guardianship order 13 December 2020, HB, page 203.
Notwithstanding this, DG states that the reason he does not think that RM should be alone with AG is because of financial exploitation.[96] This is not reasonable.
[96] ts 57, 25 August 2021.
DG continues to raise concerns about the transactions in 2019 in his closing submissions. I note that RM is not and has never proposed herself as administrator for AG. As such, her suitability for appointment as decision-maker for AG is not a question I have to consider. The issue for me to determine is whether it is in AG's best interests for DG to be appointed instead of PT.
It is clear from the evidence that DG is highly motivated to achieve appropriate care for AG in the most cost-effective way.[97] Now that AG has entered aged care, the previously complex question of how to meet the cost of his in-home care within the limits of his estate is largely resolved.
[97] AG Financial Analysis, filed 9 November 2021; Member's notes 30 March 2021, ts 15, 25 August 2021.
Currently, the most challenging matter facing AG's administrator is the management of the Family Court claim. For the following reasons, I am not satisfied that DG can manage this in the best interests of AG.
Firstly, DG does not appear to appreciate that the priority of the administrator is not purely to try to maximise the financial size of AG's capital by minimising costs. Section 70(2) of the GA Act explains what an administrator must do to act in the best interests of a person:
(2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible -
(a)as an advocate for the represented person in relation to the estate;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from financial neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment. (Emphasis added)
In his closing submissions, DG admits that he did not read the OPA report of 2019[98] and misrepresents the efforts the Tribunal made to emphasise the importance of this report and make it available to all parties, and particularly the applicants as detailed above in [51]. DG repeatedly and confidently makes comments regarding the nature of his father's relationship with RM, notwithstanding the fact that he has for many years worked overseas (with intermittent visits to Australia and frequent phone contact with AG), and JH has acknowledged that for a period of at least 13 years she had minimal contact with AG.[99] It appears that DG is not open to considering what AG's views and wishes might have been where they differ from his own.
[98] Applicants' Responding Submissions GAA 4121/2021, 21 September 2021, page 26.
[99] DG email to JW at RSS 27/2/2020, HB, page 139; Statutory Declaration of DG 26/7/2019; HB, page 30; RC Character reference for DG 20/10/2020, HB, page 90; ts 29, 30 March 2021.
Secondly, DG relies on two documents to support his claim that AG supports his appointment as administrator. The first is the EPA signed on 26 May 2021. DG states in regard to a draft will that RC helped AG draft in 2019:
[AG] clearly cannot remember being involved in drafting the document in the following days and thought a fake document was planted in his house after his daughter JH found him wandering around with the document in his pocket in a distressed state on May 25, 2019. At this point it was obvious to anyone concerned that [AG] does not have the memory capacity or recall, to make any rational decisions with legal documentation affecting his interests.[100]
[100] Statutory Declaration of DG, 26/7/2019, HB, page 22.
In these circumstances it is extraordinary that DG, JH and RC (who witnessed the EPA) thought it appropriate to complete the EPA the following day. When cross-examined regarding this, DG stated:
… Well, what I'm saying to you, [DG], is if you knew your dad didn't have capacity, why did you get him to sign a document on 26 May? ---Because it was there to assist him. The idea is that he was at that stage - we hadn't had a SAT hearing and we thought, in order to - we were actually advised by the nurse, we had better get this sorted, otherwise you have to go through a lengthy SAT process. So acting in the interests of Dad, we decided whilst he had this legal capacity, we decided to get that signed so that we could prevent further abuse. Because I had seen a whole litany of ---
Sure?--- --- abuse after ---
But if you were ---?--- --- that ---
But if you had formed ---?--- --- 130 grand ---
If you had formed a view a view at that point that he didn't have capacity, do you not think it was prudent then that he not sign a legal document? --- Well, we - we decided we would try to act in his interests.'[101]
[101] ts 24, 25 August 2021.
This demonstrates that although DG was motivated to protect AG from what he saw as financial exploitation, he showed a blatant disregard for the legalities of becoming the substitute decision-maker for a person who no longer had capacity to do so as per DG's own opinion as expressed in the statutory declaration.
The other document DG relies upon as evidence of AG's wishes regarding who should be appointed is the note detailed in the chronology. I note that DG argued this showed that his appointment was supported by AG by selectively quoting from the note, when in fact it clearly stated that AG's preference was for an independent appointee if AG was found not able to manage things for himself. Specifically, AG had written:
I would not welcome control of my finances by my daughter. I much prefer it to be managed by a person or institution who has no monetary interest other than fees in the capital value of the estate. A trustee - three question marks - or failing that, my son [DG]. Better, myself.[102]
[102] ts 15, 18 November 2021.
This is consistent with AG's wishes as reported by OPA:
He would prefer neutral appointment of the Public Trustee. The writer explained that there would be substantial fees involved (given his assets) should the Public Trustee take on the administration full-time and he remained ok with this option.[103]
[103] OPA Report, 17 September 2019, page 4.
I note that DG's concerns regarding AG being susceptible to influence by RM due to his cognitive decline are not unreasonable, but that similarly AG would be susceptible to influence by others, too. I cannot therefore accept as evidence what KG and DG report regarding their conversations with AG about his current wishes, as the context and type of information provided to AG in posing the question, and his inability to comprehend the situation as a whole (as might be presented to him by an independent party) compromise its probative value.
Thirdly, to make decisions regarding the Family Court proceedings in AG's best interests, the administrator, keeping in mind the broad definition in s 70 GA Act (and not just minimising depletion of AG's capital), will need to keep an open mind to different outcomes, which may include a negotiated settlement. The repeated attacks on RM in documents and oral evidence (which were not relevant to my decisions regarding who should be appointed as she was not a candidate) demonstrate that DG does not have an open mind to such an outcome, even though it might permit AG and all parties to move forward in a way that allows AG to have stress-free time with the important people in his life (s 70(g)) and might be consistent with his wishes as gathered from his previous actions (s 70(e)). In closing submissions, DG's legal representative cites HH [2014] WASAT 142. At [40] of that decision (where the government decision-maker was reappointed rather than the family member who sought to be appointed instead) reads 'Whilst MH has demonstrated commitment to HH he is unable to distinguish between his own wishes and what is in HH's best interests.' This observation applies equally to DG and AG.
I therefore find that DG is not suitable for appointment as administrator, because I do not believe he can act in the best interests of AG (as described by the GA Act) due to his disregard for AG's stated wishes and those that can be deduced from his actions and I do not accept that his appointment would accord with AG's wishes.
The ongoing appointment of the PT is in the best interests of AG. They have conducted AG's affairs in a way that demonstrates respect for his wish to stay at home for as long as possible and his wish to provide accommodation for RM at a concessional rate within what is consistent with his own care needs being met (which I note DG acknowledged he would need to do as per the order of the Tribunal, even though he expressed different views in January 2021)[104] providing updates in each report to the Tribunal on whether this remains sustainable. The PT can bring an impartial, neutral approach to administering AG's estate, and its appointment does accord with AG's wishes.

What should the scope of the orders be?

[104] Case for Administrative Change DG 31 January 2021, HB, page 360.

The guardian is now only required to make medical treatment decisions. The complexity of AG's estate requires that a plenary administration order remain. PT have advised that the current order in relation to the house where RM lives can continue and is presently compatible with AG's costs of maintenance and care being met within the value of the estate.

What should the term of the orders be?

AG has a progressive condition and there is no prospect he will recover capacity. His best interests will be served by stability and sureness regarding his substitute decision-makers. I will therefore make the orders reviewable within five years.

The orders of the Tribunal

GAA3560/2020
For the reasons outlined above, I make the following declarations and orders:
The Tribunal declares that the represented person, AG is:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person;
(c)in need of oversight, care or control in the interests of his own health and safety; and
(d)in need of a guardian.

The Tribunal orders:
Guardianship

The guardianship order dated 19 September 2019 is revoked and substituted with an order in the following terms:
1.KG of [address] is appointed limited guardian of the represented person with the following functions:
(a)to make treatment decisions for the represented person, subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA);

2.The guardian is to authorise all health professionals and care providers of the represented person (including but not limited to [the aged care facility] to communicate with RM regarding the represented person's health.
3.A copy of this order and the reasons for decision will be provided by the Tribunal to [the aged care facility].
4.The guardianship order is to be reviewed by 14 January 2027.

GAA411/2021
The Tribunal declares that the represented person, AG is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.
The Tribunal orders:

Administration
The administration order dated 19 September 2019 is revoked and substituted with an order in the following terms:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is to continue with the long standing practice of the represented person to permit RM to live in his property at [address] on the reduced contribution of $652.00 per month and for the represented person to continue to meet the costs of the rates (council and water), land tax and insurance, so long as this is consistent with the represented person's care and maintenance needs being met within the value of his estate.
3.The administration order is to be reviewed by 14 January 2027.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
19 JANUARY 2022