AP
[2025] WASAT 18
•24 FEBRUARY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AP [2025] WASAT 18
MEMBER: MS R BUNNEY, MEMBER
HEARD: 24 JANUARY, 29 JANUARY AND 3 FEBRUARY 2025
DELIVERED : 24 FEBRUARY 2025
PUBLISHED : 24 FEBRUARY 2025
FILE NO/S: GAA 6243 of 2024
AP
Represented Person
PF
Applicant
Catchwords:
Guardianship - Administration - Application by daughter of represented person to review orders - Leave for review granted - Where concerns raised by daughter of morphine allergy - No evidence of morphine allergy - Application by daughter for interim injunction - Power of Tribunal to make an injunction - Inherent power to make orders to restrain in the Guardianship and Administration Act 1990 (WA) - No jurisdiction for Tribunal to make injunction in guardianship matters - Application for injunction withdrawn - Reappointment of Public Trustee as administrator - Family member not consenting to reappointment as medical treatment guardian due to family conflict - Appointment of Public Advocate as limited guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 17A, s 44(1), s 44(1)(b), s 44(2), s 44(5), s 47(1), s 51, s 51(2)(g), s 72(1), s 74(1), s 86, s 87, s 110H, s 110ZD, Sch 2, Pt B
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4), s 34(1), s 34(5), s 35(1), s 46, s 46(1), s 66(1), s 67(1), s 90
Result:
Application for interim injunction withdrawn
Public Trustee reappointed as administrator
Appointment of private medical treatment guardian revoked
Public Advocate appointed as guardian for all functions
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| Applicant | : | Ms J Heniton on 24 January 2025, In Person on 29 January 2025 |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | Hebiton Legal on 24 January 2025, N/A on 29 January 2025 |
Case(s) referred to in decision(s):
Director Clinical Services, Child & Adolescent Health Services and Kiszko & Anor [2016] FCWA 75
G and N [2009] WASAT 99
M [2008] WASAT 262
MK [2013] WASAT 146
Public Trustee and BG [2010] WASAT 195
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
AP is an 83-year-old man with a diagnosis of advanced dementia. When AP had been admitted to Hospital for 18 months, the Hospital applied to the Tribunal (Original Application) due to concerns about the enduring power of attorney AP signed which appointed his daughters, MJ and PF, as his joint and several attorneys (EPA).
On 21 November 2024, I revoked the EPA and appointed the Office of the Public Trustee (Public Trustee) as AP's administrator and the Office of the Public Advocate (Public Advocate) as his guardian to make all decisions except medical treatment. I appointed MJ as his medical treatment guardian (the November Orders). PF did not attend the hearing so I could not consider her for appointment.
PF has sought a review of the November Orders as she wants to be AP's guardian and administrator. The review hearing was listed for February 2025 but on 22 January, PF filed a further application seeking an urgent injunction to restrain morphine from being administered to AP at the Nursing Home where he resides. PF claimed that AP was having an allergic reaction and was at risk of death. A directions hearing was held on 24 January to discuss programming the injunction application. PF withdrew her injunction application and the substantive hearing was brought forward to 29 January 2025 (Hearing).
At the Hearing, the Tribunal was advised that on 20 January, PF raised her concerns with AP's delegated guardian from the Public Advocate (Guardian). The Guardian spoke with the Hospital and the treating doctor at Nursing Home and confirmed that AP did not have an allergy to morphine and there were no concerns as alleged by PF.
At the Hearing, I reappointed the Public Trustee as AP's administrator and the Public Advocate as his guardian. I indicated that I would provide my reasons for decision later. These are my reasons.
Background to Original Application
The Original Application was filed because PF told the Hospital that she received legal advice that she could not use the EPA independently of MJ to sell AP's home. The Hospital wanted to resolve the uncertainty over who could sell AP's assets as this apparent barrier was preventing AP's discharge into aged care following a prolonged hospital admission.
The social worker from the Hospital, Mr SW and MJ attended the hearing of 21 November 2024. PF could not be reached by telephone. AP was too unwell to attend and he had been admitted to the Nursing Home as a concessional resident on 11 November with PF's consent. I decided that it was in AP's best interests to hear the matter, even though PF did not attend, as:
(a)the Tribunal staff spoke to PF on 15 and 18 November about her attendance at the Hearing;
(b)my review of the EPA did not disclose any reason why PF could not use it independently to sell AP's home;
(c)certainty was required about the management of AP's finances;
(d)PF had been living in AP's home for around eight weeks, meaning that a conflict of interest existed between PF and AP in respect of decisions about the sale and use of his home;[1]
(e)further evidence was given about the delay in selling AP's home, with the sale having been discussed since at least 2023. MJ was in favour of the sale and willing to cooperate;[2] and
(f)evidence was given about the enduring, escalating conflict between the sisters.
[1] ts 8, 21 November 2024.
[2] ts 5, 7 and 9, 21 November 2024.
I revoked the EPA because I was satisfied on the evidence that it was not an effective way for AP's finances to be managed. As there were no nominations for appointment as administrator, the only option open to the Tribunal was to appoint the Public Trustee.
In relation to guardianship, MJ was agreeable to the Public Advocate being appointed as AP's guardian for accommodation, contact, services and restrictive practices in aged care. I appointed MJ as AP's medical treatment guardian, as her evidence was that she had had long discussions with her father about how he wanted to live his life and his wishes around end of life care decisions.[3]
[3] ts 19, 21 November 2024.
Application for review sought by PF
PF was unable to attend the hearing of 21 November due to a technical problem with her telephone. She wanted to be AP's guardian and administrator so she applied for a review of the November Orders pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) which provides:
(1)Where the State Administrative Tribunal consisting of one member makes any determination, a party who is aggrieved by the determination may request the President to arrange for a Full Tribunal to review the determination, and the President shall comply with any such request.
PF's application was accepted as an application for review of the November Orders under s 86 of the GA Act which provides:
(1)The State Administrative Tribunal may at any time on the application of —
(a)the Public Advocate; or
(aa)the Public Trustee; or
(b)a represented person or a guardian or an administrator; or
(c)a person to whom leave has been granted under section 87,
review a guardianship order or an administration order.
Section 87 of the GA Act provides that:
(1)Any person may request the State Administrative Tribunal for leave to apply for the review of a guardianship order or an administration order.
…
(5)The State Administrative Tribunal may —
(a)refuse the request; or
(b)if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review.
As PF's willingness and suitability for appointment as guardian and administrator had not been considered by the Tribunal, this was a change in circumstances from those that existed at the original hearing. PF was therefore granted leave to review the November Orders pursuant to s 87 of the GA Act.
PF attended the Hearing in person with her partner DA and family friend CI. CI considered herself a family member as she lived with AP and his wife JO from around the age of 14. CI proposed herself for consideration as a decision-maker. AP's Guardian and MJ also attended.
I will next explain PF's application for an urgent injunction and the limits of the Tribunal when making injunctions.
Application for urgent injunction
On 22 January 2025, PF filed an application for an interim injunction pursuant to s 90 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to facilitate 'the cessation of administration of morphine to [AP] until the further hearing'.[4] PF claimed that AP was experiencing a severe allergic reaction to the morphine he was being given at the Nursing Home and that he had experienced this type of reaction as an inpatient at Hospital in 2023 and 2024.
[4] Letter from solicitor dated 22 January 2025, page 1.
Section 90 of the SAT Act states:
(1)The Tribunal may by order grant an interim injunction in any proceeding if it is just and convenient to do so.
(2)The Tribunal's power to make an order under subsection (1) is exercisable by a judicial member.
(3)The Tribunal may make the order on the application of a party or on its own initiative.
(4)An interim injunction may be granted whether or not a person whose interests may be affected —
(a)is a party; or
(b)has been given an opportunity to be heard.
(5)An interim injunction may be granted —
(a)in any case — for a specified period; and
(b)if granted on the application of a party — for the period up to the final determination of that application.
(6)In granting an interim injunction, the Tribunal —
(a)may require an undertaking as to costs or damages as it considers appropriate; and
(b)may provide for the lifting of the injunction if specified conditions are met.
(7)The Tribunal may assess any costs or damages referred to in subsection (6)(a) and any amount so assessed is a debt recoverable in a court of competent jurisdiction.
(8)The rules may place conditions on the Tribunal's power to grant an interim injunction.
(9)The Tribunal's power under this section is in addition to, and does not limit, any power of the Tribunal under the enabling Act to make an order in the nature of an injunction.
The Tribunal has only published a few decisions about injunctions sought pursuant to s 90 of the SAT Act in guardianship and administration matters, with all reported decisions relating to administration.[5] These decisions involved:
(a)the son of the proposed represented person seeking an injunction to restrain his brother from dealing with their mother's estate. The application was refused and the brother gave an undertaking not to exercise his authority under the enduring power of attorney without the consent of his brother until the proceedings were concluded;[6]
(b)the proposed represented person had signed two enduring powers of attorney. In 2005 he appointed his stepson and in 2008 he appointed his daughter. The daughter and the stepson were restrained from acting under either power without prior approval of the Tribunal or until the matter was finalised;[7] and
(c)in Public Trustee and BG, the Public Trustee was appointed as BG's administrator after his previous joint administrators spent his inheritance on motor vehicles which had been damaged or given away. The Public Trustee sought that an injunction be granted to freeze the bank account of one of the joint administrators pending a further hearing.[8]
[5] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [13] per Beech J sets out what is requires for an applicant for an injunction to be successful. The applicant must show there is a serious question to be tried, damages are not an adequate remedy and the balance of convenience favours granting the injunction.
[6] M [2008] WASAT 262 at [13]. The injunction was refused by a judicial member of the Tribunal, Her Honour Judge Eckert.
[7] G and N [2009] WASAT 99. The injunction was made by a judicial member of the Tribunal, His Honour Justice Chaney.
[8] Public Trustee and BG [2010] WASAT 195. The injunction was made by His Honour Justice Chaney.
The Public Trustee made a further application for orders in the matter, but this time the orders were sought pursuant to s 72(1) and Part B of Sch 2 (Part B) of the GA Act. Section 72(1) states that the Tribunal:
… may give any direction, make any order or do any other thing provided for in Part B of Schedule 2.
Paragraph (e) of Part B states that the Tribunal may:[9]
make such orders as it thinks fit for the purpose of preserving the nature, quality, tenure or devolution of any property forming part of the estate and direct that any money be carried to a separate account and declare the notional character which the money in that account bears.
[9] Part B contains further powers such as directing how a lease or other property may be dealt with, calling for the production of any testamentary instrument of the represented person, giving powers in relation to any disposition or transaction and granting to the administrator the power exercised by the represented person as an office holder in a company, such as a director, or a trust as a trustee.
The Public Trustee was granted the orders sought to restrain third parties from dealing with the motor vehicles to preserve BG's property. The orders had the effect of an injunction by using the inherent powers in the GA Act rather than s 90 of the SAT Act.[10]
What power does the Tribunal need to make an order to restrain?
[10] By way of example, in MK [2013] WASAT 146, the Public Trustee was appointed as administrator and was advised by the bank that $31,815 was transferred out of the represented person's account into an account in the names of D and A. The Public Trustee sought urgent orders pursuant to s 72(1) and Part B para (e) to preserve the property of the represented person. Orders were made to restrain the bank from releasing the $31,815 from D and A's account, and D and A were restrained from operating the bank account. As the orders were made pursuant to s 72(1) and Part B, the orders were made by a member of the Tribunal.
For the Tribunal to make an order to require a person or entity to cease doing or start doing a specific action, the Tribunal must have the power, or jurisdiction, to make orders in relation to that specific action.[11] Using the example of preserving property, the Tribunal has the power to require a person or entity that holds the property of the represented person to do, or not do, a specific action in relation to that property in order to preserve it. That power comes from s 72(1) and Part B.
Who can the Tribunal give directions to?
[11] That jurisdiction will come from an enabling act or an act, like the GA Act, for which the Tribunal has original jurisdiction.
The Tribunal has broad powers in relation to administration matters, evidenced by s 72(1) providing no restriction as to who the Tribunal can direct if exercising the powers in Part B, with Part B allowing the Tribunal to exercise the discretion 'as it thinks fit'. The Tribunal can give directions to an administrator on its own initiative under s 72(1) or at the request of the administrator.[12]
[12] GA Act, s 74(1) states that any administrator may apply to the Tribunal for directions concerning any property forming part of the estate of the represented person, or the management or administration of such property, or the performance of any function, and the Tribunal may on any such application give to the administrator any direction not inconsistent with this Act.
In contrast, the Tribunal can only give directions to a guardian if the guardian themselves request that the Tribunal do so.[13] There are no equivalent provisions to Part B in guardianship matters that provide the Tribunal with further powers or the discretion to make orders about the role or functions of a guardian. The only requirement placed on guardians is that they make decisions solely in the best interests of the represented person.[14]
What is the role of the guardian when making best interest decisions?
[13] GA Act, s 47(1). An attorney can apply for directions under s 109(2)(b). Compare this to s 110M where anyone with a 'proper interest' in the operation of an enduring power of guardianship can apply for the Tribunal to give directions as to matters concerned with the exercise of the enduring power of guardianship or the construction of its terms.
[14] GA Act, s 51. An appointee under an enduring power of guardianship is also subject to this requirement pursuant to s 110H of the GA Act.
The role of a guardian, and the nature of the personal decisions a guardian makes, require the guardian to consider, weigh up and accept (or not) the opinions and advice of appropriately qualified professionals, such as doctors, social workers and occupational therapists. The guardian must take all relevant information and evidence into account, and make a decision that is, in their opinion, in the represented person's best interests, noting that the:[15]
… determination of best interests is not a precise science. It is multifaceted and complex. It is susceptible to very different conclusions being drawn by different people of equal compassion, sincerity and integrity.
Can the Tribunal make the injunction that PF is seeking? If not, why not?
[15] Director Clinical Services, Child & Adolescent Health Services and Kiszko & Anor [2016] FCWA 75 at [101] per O'Brien J.
The terms of the injunction sought by PF are not clear and do not disclose who would be restrained from administering the morphine. The options could include:
(a)AP's treating team at the Nursing Home being restrained from prescribing and/or physically administering the morphine; and/or
(b)the medical treatment guardian MJ being restrained from making a medical treatment decision to consent to the administration of morphine.
Either way, the Tribunal does not have the jurisdiction to make those orders as it does not have the power to give directions or make orders in respect of third parties in guardianship matters,[16] or to a guardian unless requested by the guardian.
[16] Except for the provision of documents, information or evidence from third parties which the Tribunal can request or require using s 34(1), s 34(5), s 35(1), s 66(1) and s 67(1) of the SAT Act.
If such an injunction could be granted to restrain AP's doctor or guardian in that way, then further decisions would need to be made as to what pain relief was appropriate to give AP. Who would make that decision if the Tribunal had already overridden the authority of AP's doctor or guardian to make that decision? Such an approach could place AP at risk of not receiving the required medical treatment once there was uncertainty about whether his doctor would be further restrained from treating AP or his guardian restrained from making decisions. This example illustrates how the role of a guardian who is making personal decisions in relation to health, welfare and safety is distinctly different to an administrator who manages an estate and protects property.
If the Tribunal appointed guardian acted in a way that was suspected to be against the represented person's interests, the appropriate application is an urgent review of the guardianship order pursuant to s 86 of the GA Act. The Tribunal will list such a matter with the urgency it requires.
In this case, the Tribunal granted leave to PF to withdraw her application for the injunction and the Hearing was relisted to three business days after the directions hearing.[17] I confirm that no concerns were raised by any of the professionals involved in relation to any decision made by MJ. MJ was aware of and consented to the administration of morphine but decisions about the amount of morphine and when to administer were made by AP's treating team, not MJ.[18]
[17] SAT Act, s 46.
[18] ts 19, 29 January 2025.
Matters to consider when appointing a guardian or administrator
The primary concern of the Tribunal when making decisions under the GA Act is the best interests of the person for whom the application was made, being AP. The starting point for the Tribunal is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments about their estate and their person. This is referred to as the 'presumption of capacity' and if set aside by clear evidence, the Tribunal can consider making guardianship and administration orders.
When deciding whether to appoint a guardian or an administrator, the Tribunal must address three stages of enquiry as follows:
(a)the first stage is to determine whether the person lacks the capacity to make decisions about their personal and financial matters;
(b)if so, the second stage is a consideration of whether the Tribunal needs to make an order, or whether there is another way for decisions to be made for the person that is less restrictive on their freedom of decision and action; and
(c)if the Tribunal needs to make an order, the third stage involves the Tribunal determining who the guardian or administrator will be, the functions or powers they require that will be the least restrictive on the person, and how long the orders will run before they are reviewed.
The Tribunal may inform itself on any matter as it sees fit,[19] and is not bound by the rules of evidence,[20] which ensures, as far as possible, that all relevant information can be considered by the Tribunal to make the correct decision in the best interests of the person concerned.
[19] SAT Act, s 32(4).
[20] SAT Act, s 32(2).
I have taken into account the oral evidence given at the hearings of 21 November 2024, 24 January and 29 January 2025. I have also had regard to the written evidence filed in these proceedings and the Original Application, and need not set it out in detail. The relevant features are summarised in these reasons.
AP's views and wishes
The Tribunal must take AP's views and wishes into account, as expressed, or as gathered from his previous actions. AP did not attend any hearings but he expressed his view when he signed the EPA in 2005 that if his wife was unable to manage his finances for him, he wanted his daughters to do so jointly and severally in substitution of his wife.
As MJ and PF have a conflictual relationship, the responsibility of managing AP's finances fell to PF. PF assisted with caring for AP and JO up until JO passed away and she estimates that she managed her parents' finances from 2021. AP therefore expressed a further wish that PF would manage his finances through his actions in accepting her help.
Due to the conflict between his daughters, I am unable to follow AP's views and wishes, that his daughters are both responsible for managing his estate, when determining this matter. Due to the conflict of interest between AP and PF, to be discussed later, I cannot follow his wish that PF manage his finances.
Stage 1 - does AP lack the capacity to make his own decisions about his personal and financial matters?
(1)(a) When can an administrator be appointed? The test for incapacity
To appoint an administrator for AP, I must be satisfied that he is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.
(1)(b) Does AP have a mental disability?
Dr W's evidence is that AP's dementia symptoms were recognised in November 2020 but no diagnosis was made at that time. AP was admitted to Hospital in May 2023 after JO passed away with worsening memory, cognition and functional decline. His behavioural and psychological symptoms of dementia has also worsened over time. He scored 14/30 on a mini-mental state exam performed in May 2023.[21] I find that the diagnosis of dementia falls within the meaning of 'mental disability' as defined in the GA Act.
(1)(c) Does the mental disability cause AP to be unable to make reasonable judgments about his estate?
[21] Medical report of Dr W dated 16 October 2024.
For the Tribunal to decide whether AP is 'unable' to make reasonable judgments about his estate, I must consider the extent to which AP is able to engage in the cognitive process required to make a 'reasonable judgment' and then compare that against AP's estate and circumstances. AP's estate consists of his home, a joint bank account with his wife and his pension income. Dr W's opinion is that AP does not have the capacity to make decisions about financial, legal or personal matters as he has poor executive functioning and recall, and he is not orientated to time or place.
I am satisfied, and I find, that the dementia illness is the cause of AP's inability to make reasonable judgments in respect of his estate. I accept PF's evidence that she has managed AP's finances since 2021 as he was unable to do so, which coincides with the emerging dementia symptoms.
(1)(d) Conclusion on capacity to make financial decisions
Having regard to the evidence provided to the Tribunal, I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of AP's ability to make reasonable judgments in respect of his estate. AP is therefore a person for whom I can appoint an administrator.
(1)(e) When can a guardian be appointed? The test for incapacity
To appoint a guardian for AP, I must be satisfied that he is over 18 years of age and that one or more of the following criteria apply:
(a)he is incapable of looking after his own health and safety;
(b)he is unable to make reasonable judgments in respect of matters relating to his person; or
(c)he is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
(1)(f) Does AP lack the capacity to make personal decisions?
I am satisfied, and I find, that AP is:
(a)incapable of looking after his own health and safety. He was an inpatient in Hospital for 18 months before being discharged to a residential aged care facility due to his high care needs and his inability to look after himself;
(b)currently incapable of making reasonable judgments in respect of his person. AP was unable to source suitable accommodation by himself, which lead to his prolonged hospital admission. PF described how it was difficult for AP to adjust to the Nursing Home after leaving Hospital. He would ask why his home and family had been taken away, as he considered the Hospital staff to be his family as he had been there so long.[22] Dr W's opinion is that AP does not have the capacity to make reasonable judgments in relation to medical treatment, accommodation and services; and
(d)in need of oversight, care or control in the interests of his health and safety. AP can become agitated and requires medication to calm him down to avoid him from lashing out and hurting himself. He is a falls risk and suffered a pelvic fracture in March 2024 following a fall.
(1)(g) Conclusion on capacity to make personal decisions
[22] ts 17, 29 January 2025.
I am satisfied, and I find, that the presumption of capacity has been set aside in relation to personal decisions and AP is a person for whom I can appoint a guardian.
Stage 2 - is there a need for orders or is a less restrictive option available?
There is no doubt that AP requires assistance to deal with his estate and to make decisions about his personal matters. The enquiry at this stage is not whether he needs assistance, but whether he needs an administrator or a guardian to be appointed for that purpose. I must bear in mind the need to adopt a less restrictive option if possible.
Informal arrangements are not sufficient because AP needs his guardian and administrator to have the legal authority to make ongoing decisions, for example, involving the management of his estate, medical treatment and restrictive practices in aged care. The EPA has not provided an effective way for AP's finances to be managed due to the ambiguity over whether PF can use it individually to sell AP's home, prompting the Original Application to the Tribunal. I was satisfied on 21 November 2024 that it was appropriate to revoke the EPA and appoint an administrator to manage AP's finances.[23]
[23] I revoked the EPA on 21 November 2024, but the description of the EPA in those orders was not accepted by Landgate when the Public Trustee attempted to lodge a caveat against AP's property. I have therefore repeated the order to revoke the EPA in the orders made in this matter.
Dr W's opinion is that AP is not able to sign an enduring power of attorney or an enduring power of guardianship, so that less restrictive option is not available. I am therefore satisfied that there is no less restrictive option available and the Tribunal needs to appoint a guardian and administrator for AP.
Stage 3 - who, what and how long?
(3)(a) Who should be AP's administrator?
When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of AP, is suitable to act as the administrator of his estate and will be able to perform the functions vested in them.
PF and CI have proposed themselves for nomination as administrator. I find that PF and CI are over the age of 18 years and have consented to act as the administrator.
Consideration of CI
I was not persuaded that CI genuinely wanted to be appointed. When CI nominated herself for appointment, she looked uncertain and fearful. She continually looked to PF before she spoke and when she did, her voice did not sound confident. She sounded worried and unsure. PF and CI have a close relationship and I observed that CI supported PF's position and her views. Due to that, I would be concerned that CI might prefer PF's personal interests (discussed further below) over AP's best interests.
I am satisfied, and I find, that CI is not suitable for appointment as AP's administrator because I am not satisfied that CI would be able to independently make decisions in AP's best interests due to her close relationship with PF. I find that it would be extremely difficult for CI to make a decision solely in AP's best interests if PF did not agree, particularly in relation to the sale of AP's home, where PF lives. CI would therefore not be able to perform the functions vested in the administrator.
Consideration of PF
PF has managed AP's finances for approximately 4 years and finalised her mother's estate on her father's behalf. However, I am satisfied, and I find, that PF is unsuitable for appointment as AP's administrator for two reasons. The first is PF's proven inability to manage AP's finances and the second is the conflict of interest.
(i) Inability to manage finances
The Original Application was made due to the Hospital's questions about PF's inability to use the EPA, which was believed to a barrier to AP's entry into aged care. PF advised the Hospital, based on legal advice, that she was unable to act independently to sell AP's home to fund a place in aged care. PF took no steps to resolve this purported issue herself to ensure that she could make financial decisions promptly for her father and it was left to the Hospital to make the Original Application after an 18 month admission.
My review of the EPA did not disclose any reason why PF would not be able to use the document to sell AP's home, either by herself or with MJ. The EPA was lodged with Landgate and used to transfer AP's home from joint names into his sole name after his wife passed, so the previous acceptance by Landgate militates against the EPA not being accepted again, regardless of whether PF used it jointly or severally.
In addition, I accept MJ's evidence that the sale of AP's home had been discussed since at least 2023. MJ explained her understanding that some minor renovations would be performed before the home was sold, although she was not aware that PF had moved into the property in around September 2024.[24] I found MJ to be an honest and credible witness. None of the professionals that attended the hearings had any concerns about MJ or the actions she had taken on behalf of her father. MJ's evidence was consistent across all hearings and was corroborated by the other professionals that gave evidence, either orally or in writing.
(ii) Conflict of interest with AP
[24] ts 7 and 8, 21 November 2024.
PF lives in AP's home. PF told AP's Trust Manager from the Public Trustee that she was concerned that if AP was permanently admitted into aged care, she would be homeless as the Public Trustee would probably sell AP's home to pay the refundable accommodation deposit.[25] PF gave evidence that she advised the Public Trustee that she was paying 'board' into AP's bank account, in addition to paying the rates and utilities. PF told me that her and AP agreed that she would pay board of $100 per week. As PF resides in AP's main asset, someone independent needs to:
(a)decide whether it is in AP's best interests that his home be sold; or
(b)calculate the costs and expenses PF will pay if it is appropriate for her to continue living there.
[25] Report prepared by Trust Manager from Public Trustee dated 24 January 2025, page 3.
It would not be appropriate for PF to make these decisions and calculations herself due to her personal interest in the outcome.
Conclusion in relation to appointment of administrator
I am therefore satisfied that neither CI nor PF are suitable to be appointed as the administrator of AP's estate. Even if I was satisfied that PF was able to manage her father's estate, the conflict of interest between her personal interests and AP's interests means that PF is not independent. The close relationship between PF and CI that I observed satisfies me that the only person appropriate for appointment as AP's administrator is the Public Trustee.
(3)(b) What should the administrator's powers be?
I am satisfied that the administration order should be a plenary order, which will allow the administrator to deal with all aspects of AP's estate in his best interests. I am satisfied on the evidence provided by PF that AP is unable to make decisions about simple or complex financial matters because she has been managing his finances since 2021, which is consistent with the medical evidence.
(3)(c) Who should be AP's guardian?
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in AP's best interests, is not in a position of actual or potential conflict and is suitable to act as the guardian.[26] When assessing suitability, the Tribunal must take into account, among other things:[27]
(a)the compatibility of the proposed guardian with the administrator;
(b)whether the appointment is consistent with AP's wishes; and
(c)whether PF or CI would be able to perform the functions proposed to be vested in the Guardian.
[26] GA Act, s 44(1).
[27] GA Act, s 44(2).
PF and CI have proposed themselves for appointment as AP's guardian. I find that PF and CI are over the age of 18 years and have consented to act as the guardian. MJ no longer consented to act as the medical treatment guardian and supported the appointment of the Public Advocate for all functions.
Consideration of CI
I refer to my earlier comments about the inconsistency between CI verbally consenting to be a substitute decision-maker and her facial expressions, tone of voice and body language I observed in the Hearing which persuaded me that she was not genuinely consenting to the appointment. As with administration, I am satisfied, and I find, that CI would not be able to make a decision solely in AP's best interests if it is not something that PF agreed with. I am concerned that CI would adopt PF's strongly held views, particularly in relation to medical treatment decisions and PF's proposed change to AP's living arrangements, which is discussed further below, rather than to make independent decisions in AP's best interests.
Consideration of PF
I find that PF is not suitable for appointment as guardian for three reasons. The first is her assertions about AP's medical treatment and condition. The second is the conflict of interest and the third is the ongoing family conflict.
(i) Medical treatment
I have considerable doubts about the reliability and accuracy of PF's evidence in respect of AP being allergic to morphine due to the documentary and other evidence before the Tribunal. PF contends that:
(a)the use of morphine at the Nursing Home is excessive and he is at risk of death. AP is having a severe allergic reaction to the morphine which includes raw, bleeding skin caused by excessive scratching and extreme agitation. At the Hearing, PF included an assertion that morphine had caused AP's kidneys to shut down. This is inconsistent with the evidence given by the Guardian and MJ in terms of their conversations with the treating team at the Nursing Home;[28]
(b)the staff at the Nursing Home told her that AP was having an allergic reaction to morphine and that they were worried about his care. This is inconsistent with the evidence given by the Guardian and MJ described above;[29]
(c)the discharge summary from Hospital does not record an allergy to morphine because the record-keeping of the Hospital is deficient, and she had attended meetings with the Health Minister and Hospital in relation to this issue. However, I observe that the discharge summary notes that AP is allergic to five medications and Elastoplast, and when asked for further information about the administration of morphine to AP while he was at Hospital, the summary provided by the Hospital was very detailed and specific;[30] and
(d)AP had reactions to morphine in 2023 and 2024 which caused agitation and an exceptionally itchy rash while an inpatient at Hospital, and she was advised by Dr W that AP can only tolerate morphine for short periods of time.
[28] ts 9, 10 and 13, 29 January 2025 and letter of 22 January 2025 by PF's solicitor.
[29] ts 13, 29 January 2025.
[30] Discharge summary dated 11 November 2024 from Hospital, page 4 and ts 12, 13 and 14, 29 January 2025 and the submissions prepared and filed by Mr SW on 29 January 2025.
In relation to point (d), PF gave a detailed account of the administration of morphine to AP in 2023 while being treated at Hospital for a broken pelvis. PF advises that within a short period of time after being administered morphine, AP became agitated and an exceptionally itchy rash formed on his torso. PF recalls that Dr W stopped administering the morphine because AP reacted badly to it.[31] At the Hearing, PF explained that when AP broke his pelvis, the 'medication had built up and he was almost in a coma', so all medications had to be stopped 'to bring him back around'.[32]
Submissions provided by the Hospital
[31] Letter from PF's solicitor dated 22 January 2025.
[32] ts 12, 29 January 2025.
The Tribunal asked Mr SW to respond to PF's comments on behalf of the Hospital and his response, based on AP's medical records, provides an alternate view of the events recalled by PF.[33] The account of the Hospital is not consistent with an allergy that would preclude further use of morphine but may lead to caution when administering morphine.
[33] An order was sent to Mr SW pursuant to s 35(1) of the SAT Act which allows the Tribunal to ask a person who is not a party to proceedings to produce a document or material that is relevant to the proceeding.
Mr SW confirmed that AP had a fall that resulted in a pelvic fracture on 18 March 2024.[34] He was prescribed opioids for pain control in the form of oxycodone tablets, which were administered on 23 occasions. On 30 March 2024, AP's prescription was changed to oral morphine liquid as he was having difficulty swallowing tablets. The dose reduced on 1 April 2024 due to increased drowsiness and was ceased on 5 April 2024. During this period, morphine was administered on eight occasions.
[34] Submission prepared and filed by Mr SW on 29 January 2025.
In terms of a rash, on 26 March 2024, AP had a blanching rash on his thighs, primarily on the right with a smaller area on the left. No intervention was performed and it resolved. On the afternoon of 4 April 2024, AP complained of being hot and was observed to have a rash on his chest and under his armpits. This was documented to have self-resolved by 9.00 pm.
PF asserted that in mid-2024, AP split his head open and after being was administered morphine, he experienced a reaction that was similar to that in '2023'. PF states that after a short period of time, the doctors decided to stop administering morphine and Dr W again told PF that in his view, AP can only handle morphine for short periods of time.
Mr SW confirmed that on 1 October 2024, AP had a fall resulting in a laceration to his head. The Hospital records do not indicate that morphine was administered as part of the treatment of this injury.
Mr SW also reported that on 1 May 2024, AP was prescribed subcutaneous morphine (an injection) in response to a deterioration in his condition. The decision to administer morphine was made in consultation with PF in line with her wishes for comfort measures in the event of potential end of life care. Between 1 and 5 May 2024, subcutaneous morphine was administered five times for symptom control. This was ceased when no longer indicated as AP had improved. A review of nursing documentation relating to this period showed two instances where AP was observed to have a rash.
Regarding the advice PF recalls she received from Dr W as to why opioid medications were ceased, Mr SW confirmed that there are no specific entries in AP's medical record pertaining to a discussion held with PF. Mr SW reports that Dr W told him that the comment about 'only able to tolerate morphine for short periods' was more about opioid use in general, which should be used judiciously for acute pain and ceased when no longer needed.[35]
[35] Submission filed on 29 January 2025 by Mr SW.
When Mr SW attended the hearing of 21 November 2024, I considered that he gave his evidence honestly and in a sensitive, straightforward manner designed to assist the Tribunal. In the current matter, Mr SW spoke with the Tribunal on 22 January to advise whether or not AP was allergic to morphine. In addition to filing the discharge summary from the Hospital, Mr SW provided detailed submissions at the request of the Tribunal, based on the Hospital's voluminous contemporaneous records, in a very short time frame. I record the Tribunal's gratitude for Mr SW's assistance and the instrumental evidence he provided.
No evidence to support an allergy to morphine
There is no evidence before the Tribunal to support PF's contentions that AP has an allergy to morphine. PF was a poor historian and her recollections were not accurate when describing:
(a)the provision of morphine by the Hospital;
(b)the year that AP fractured his pelvis; and
(c)the occurrence of rashes.
PF did not mention the use of morphine in May 2024 which was in line with her wishes in terms of potential end of life care.
I asked PF if she would stop the administration of morphine if she was AP's medical treatment guardian. She explained to me as follows:[36]
I would have to see if there was some other thing than the morphine, because I really do believe that the morphine is reacting to him. I would like to see something else administered in its place. I would like to see something, a what would you call it, a coinciding drug, but not morphine, but something that - rather than the morphine. Because I do believe that the morphine is not doing him any good. I would like to see it changed for equivalent but some - like a different brand. Do you understand what I'm trying to say? Like Panadol against disprin, you know. Same drug but different - because the morphine one is really genuinely upsetting. I'm not saying stop it completely.
[36] ts 24, 29 January 2025.
PF's references to a 'reaction' to morphine which is 'genuinely upsetting' and 'not doing him any good', are inconsistent with the claims made by PF in the application for the injunction, which created a sense of imminent danger of death due to a severe allergic reaction, which was also inconsistent with her consent to morphine being administered in May 2024. I accept that PF is devoted to her father, but I would have grave concerns about AP's welfare if PF was making his medical decisions based on:
(a)her views expressed in the application for the injunction;
(b)her evidence given at the Hearing; and
(c)the likelihood that she misunderstood or mischaracterised the information she received from Dr W.
(ii) Conflict of interest with AP
A guardian cannot be in a position where their interests conflict or may conflict with AP's interests.[37] The conflict is that PF lives in AP's home and she is concerned that she may become homeless if AP's home is sold.[38] PF has expressed a desire to take AP home to care for him there, which may in part be due to her wanting secure accommodation. Such a conflict may impact on her ability to make accommodation decisions that are solely in AP's best interests.
(iii) Family conflict
[37] GA Act, s 44(1)(b).
[38] Report filed by Trust Manager dated 24 January 2025 and filed on 29 January 2025.
PF believed her father would die as a result of medical treatment decisions she believed her sister was making to the point that she instructed her solicitor to seek an urgent injunction to facilitate the cessation of morphine. I am satisfied, and I find, that PF did not take reasonable steps to contact her sister directly to discuss this issue due to the family conflict. I am therefor satisfied, and I find, that PF would be unable to communicate with MJ about important decisions she may make for AP if she was appointed as his guardian.
In addition, the guardian must be able to act in AP's best interests in respect of maintaining his supportive relationships with all his family members.[39] The conflict between MJ and PF is such that if PF decided that she would care for AP in his home, I could be concerned that it may not be possible for MJ to visit AP at all, or to say goodbye when that time came.
Conclusion about appointment of guardian
[39] GA Act, s 51(2)(g).
I have no doubt that PF loves her father and has done all she is capable of to care for him. He accepted her help for years, which satisfied me that appointing PF would be in accordance with AP's wishes. However, PF's views about AP's medical treatment, the conflict of interest in respect of accommodation decisions and the family conflict make PF unsuitable for appointment as guardian. I find that CI is not suitable due to the likelihood that she would not make decisions independently in AP's best interests if PF did not agree.
I am satisfied that the only option open to the Tribunal is to revoke the November Orders and appoint the Public Advocate as AP's guardian for all required functions.[40]
(3)(d) What functions should the guardian have?
Medical treatment
[40] GA Act, s 44(5).
I find that AP requires a medical treatment guardian to give informed consent to medical treatment and procedures. Dr W's evidence is that AP lacks the capacity to make those decisions for himself.
While PF and MJ have standing under s 110ZD of the GA Act to make medical treatment decisions as AP's children, I am satisfied that it is in AP's best interests that there is clarity for all health professionals that treat AP about who has the authority to make medical treatment decisions for him.
Accommodation
AP was admitted to Hospital from May 2023 to November 2024. I asked PF why AP was in Hospital for so long. PF explained that she accepted the advice of the Hospital that AP needed residential care, but there were no places available. PF asserts that the only nursing home place that was offered in the 18 months AP was in Hospital was the place that was accepted at the Nursing Home. PF described how she fought for the place 'tooth and nail' and accepted it with open arms when it became available.[41]
[41] ts 16 and 17, 29 January 2025.
However, the impetus for the Original Application was that PF was unable to use the EPA solely to sell AP's home. The Original Application stated that if AP was offered a bed at a private residential care facility, he could not be admitted due to the inability to pay a deposit due to the ambiguity over who would sell his assets. The Original Application stated that a bed offer could occur at any stage, and beds were available for only short windows of time. Only eleven days after the Original Application was filed, PF consented to AP's discharge to the Nursing Home.
Later in the Hearing, PF explained that she believes that AP's condition has declined since being at the Nursing Home, so she wants to take him home to care for him. PF explained that when AP was in Hospital, she continually asked the Hospital for their help to take AP home to care for him. She contends that she 'fought with them tooth and nail' but they would not help her. She has recently spoken with various organisations to understand how she can care for AP at home.[42]
[42] ts 43, 29 January 2025.
If PF wants to continue to explore the option of caring for AP at home, I am satisfied that AP's guardian requires the authority to make decisions about where AP lives and who he will live with.
Services
AP will likely not need services while he lives in the Nursing Home. However, if the guardian gave consent for AP to be cared for at home, it would be necessary for the guardian to make decisions about services. I am satisfied that AP's guardian may need authority to make decisions about the services, to engage the specific service providers and to hear the views of all family members in relation to the provision of services to AP.
Contact
AP requires a guardian to make decisions about who he will spend time with. PF visits AP five times per week and MJ lives a five-hour drive away. AP's guardian needs the authority to make appropriate arrangements for each of his children to visit him separately, to protect his supportive, meaningful relationships, particularly in circumstances where MJ will drive for most of the day to attend visits.
Restrictive practices in aged care
AP is receiving medication to alter his behaviour and manage his agitation, which constitutes a restrictive practice in an aged care setting. It is therefore necessary that MA's guardian have the authority to decide whether or not to consent to this medication and any other restrictive practices that may arise.
Conclusion in relation to functions
I am therefore satisfied that the guardian appointed by the Tribunal needs to make decisions for AP about his medical treatment, accommodation, services, contact and restrictive practices in aged care.
(3)(e) How long should the orders run before review?
When making orders, the Tribunal is required to fix a period for the review of the order, the maximum period allowed being 5 years. The medical evidence is clear that AP has a diagnosis of a progressive illness and will always need a substitute decision-maker. Given the enduring conflict between PF and MJ, I will make the orders reviewable in the maximum period possible, which is 5 years.
Orders
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [AP] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
Administration
2.The administration order dated 21 November 2024 is revoked.
3.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).
4.The enduring power of attorney dated 28 February 2005 by which the represented person appointed [JO] to be his sole attorney and [PF] and [MJ] to be his joint and several substitute attorneys in substitution of [JO], is revoked.
5.The administration order is to be reviewed before 29 January 2030.
Guardianship
6.The guardianship order dated 21 November 2024 is revoked
7.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact;
(e)to determine the services to which the represented person should have access; and
(f)to decide whether to give or withhold consent to the use of any restrictive practice for the represented person proposed from time to time in compliance with Part 4A of the Quality of Care Principles 2014 made pursuant to the Aged Care Act 1997 (Cth).
8.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
9.The guardianship order is to be reviewed before 29 January 2030.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
24 FEBRUARY 2025
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