AS - [2011] WASAT 203

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AS [2011] WASAT 203

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 12 JULY 2011

DELIVERED : 21 DECEMBER 2011

FILE NO/S: GAA 1686 of 2011
GAA 1687 of 2011

BETWEEN: AS
Represented person

Catchwords:

Guardianship and administration - Represented person incapable of making decisions - Need of a guardian - Family conflict - Allegations of misappropriation of funds - Need of an administrator - Guardian appointed - Administrator appointed

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 51(2)(g), s 64, s 68, s 84, s 90

Result:

The Public Advocate is appointed guardian
The Public Trustee is appointed administrator

Category: B

Representation:

Counsel:

KH: Mr G Grasa

Solicitors:

KH: GG Legal

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal conducted reviews of guardianship and administration orders for an elderly woman who had been diagnosed with dementia and who resided in a nursing home.
The woman's circumstances had come before the Tribunal on a number of occasions because of the fractured relationships between a niece and other family members. The niece had cared for the woman in the woman's home for a number of years.
The Public Advocate was first appointed the woman's guardian in 2009 to decide the contact arrangements with family members. Also in 2009 the Public Trustee was first appointed the administrator of her estate.
In late 2010 the woman was placed in a nursing home after a fall at home resulted in a hospital admission. The assessment of the medical team was that her care needs had increased and she was in need of full nursing care.
The niece said she had not been consulted about the placement and in January 2011 removed the woman from the nursing home against the advice of the care staff and the Public Advocate.
The Tribunal found the action of the niece was contrary to the best interests of the woman. The Tribunal also found that the niece had had the opportunity to propose alternative accommodation for the woman but had not done so despite the hospital medical team making attempts to contact her.
The Tribunal found that it could not be satisfied that the niece would act in the woman's best interests. The Tribunal therefore decided that the Public Advocate should remain the woman's guardian. In doing so the Tribunal also decided that a nephew should not be appointed the woman's guardian because of the ongoing division in the family.
In respect to the woman's estate, the Tribunal accepted the evidence of the Public Trustee that there was an unaccounted for level of expenditure from the woman's funds in excess of $130,000 in two years from 2007 to 2009 when she was under the care of the niece. The explanation for the expenditure given by the niece to the Public Trustee was found to be inadequate. There was a very real risk that a substantial amount of the represented person's funds had been used for the benefit of others.
The Tribunal decided to reappoint the Public Trustee as the administrator of the woman's estate.

Background

AS (represented person) is an 84 year old woman who has Alzheimer's dementia and resides in a nursing home.
The represented person first came into contact with the Tribunal when in 2009 an application for a guardianship order was made by her son, JS (son) under the Guardianship and Administration Act 1990 (WA) (GA Act). At that time the represented person was living with her niece (KH) and the niece's partner (JD) at the represented person's property.
KH and JD were the primary carers and had been so for about three years. There was discord in the family. There was significant animosity between KH and JD and the son who was supported by other family members. There was apparent difficulty in the contact arrangements between the son and the represented person. On 20 July 2009, the Public Advocate was appointed the represented person's limited guardian to make decisions about contact.
Another niece (HL) was the represented person's attorney under an enduring power of attorney executed in June 2003, however, the management of the represented person's finances was also not without difficulties because of the family discord.
In late 2009 KH made an application for an administrator to be appointed for the represented person's estate. At that time allegations were made by certain family members that KH and JD had misappropriated funds from the represented person's estate which was disputed by them. On 19 November 2009 the Public Trustee was appointed the represented person's plenary administrator, an appointment apparently supported by the parties at the time. The enduring power of attorney executed by the represented person in 2003 was revoked.
In 2010, KH sought review of the administration order. In the course of those proceedings two significant events had taken place. The represented person had been placed in a nursing home, a decision with which KH and JD strongly disagreed, and the Public Trustee had progressed an investigation into the withdrawal of certain funds from the represented person's estate alleged to have been made by KH and JD. On 2 September 2010 the administration order was confirmed.
On 7 January 2011, an urgent review of the guardianship order was heard by the Tribunal on the allegation that KH and JD had removed the represented person from the nursing home without the knowledge of other family members and against the advice of nursing staff. The Public Advocate was reappointed as the represented person's limited guardian with the additional functions of deciding her accommodation needs and to make treatment decisions. The order was confirmed on 11 January 2011.
The review of the guardianship order made on 11 January 2011 and the administration order made on 2 September 2010 are the subject of these proceedings (s 84 of the GA Act).

Relevant legislation

When a guardianship and/or administration order is reviewed the Tribunal can confirm, amend or revoke the order or revoke the order and make another order in substation of it (s 90 of the GA Act). In coming to a judgment about whether orders should be made, the relevant provisions of the GA Act are s 4 which states the principles of the Act; s 43 and s 64 which speak to the question of whether a person is capable of making personal and financial decisions and s 44 and s 68 which guide the Tribunal in the determination of who should be appointed guardian and administrator. Relevantly these sections state:
4.       Principles stated
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of -
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person’s previous actions.
43.     Making of guardianship order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 -
(a)has attained the age of 18 years;
(b)is -
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint -
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied.
…
(3)An appointment under subsection (1) or (2a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit.
(4)An order appointing a limited guardian shall specify the functions that are vested in the limited guardian under section 46.
64.     Making of administration order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 -
(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,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint -
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
(3)An appointment under subsection (1) -
(a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b)may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given.
44.     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.
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.

The represented person's capacity

The represented person has a diagnosis of dementia. The latest statement to that effect is made by her general practitioner, Dr P in a report to the Tribunal made in June 2011. He states that he became aware of the diagnosis on first attending to the represented person three to four years ago. Dr P assesses the represented person as being incapable of making reasonable decisions in both her personal and financial affairs. He also assesses the represented person as being incapable of executing an enduring power of attorney.
A clinical nurse at the nursing home where the represented person resides states in a report from July 2011 that the represented person is 'pleasantly confused', passive and unable to follow instructions. The represented person is fully assisted in all her activities of daily living and is not ambulant. She appears pleased to have visitors as evidenced by her smiling expression when visiting occurs.
The Public Advocate states in her written report of 6 July 2011 that in her view, based on the diagnosis of dementia, the represented person's presentation, medical reports and discussions she has had with Dr P and care providers, that the represented person is a person for whom orders could be made.
KH and JD do not dispute the diagnosis of dementia or that the represented person is unable to care for herself or manage her estate, however, they submit that the represented person is able to clearly state her wish. This is disputed by the Public Advocate who says that in discussion with care staff and the general practitioner, Dr P, it is accepted that the represented person is no longer able to state her wishes.
On the evidence before me I am satisfied that the represented person remains a person for whom guardianship and administration orders could be made. She receives full-time nursing care in a nursing home which she requires to maintain her health and safety. She is in need of constant oversight and care. Because of her dementia, which is a progressive condition, I am satisfied she is not able to make reasonable judgments about her personal or financial affairs.
There is no evidence before me that disputes the findings previously made by the Tribunal.

The need for a guardian, evidence and submissions

In her written report the Public Advocate sets out the history of her involvement with the represented person. Relevantly she states that in July 2010 (when she was the appointed guardian for contact purposes), the represented person had a fall in her home and was admitted to hospital with a fractured bone in her leg. Whilst in hospital she was assessed as needing high level or nursing home care. The Public Advocate contends that during her admission KH and JD were not able to be contacted and that it was other family members who made the necessary treatment decisions and who decided that she be placed in a nursing home for her care. Around that time the Public Advocate contacted KH's solicitor to advise him of the nursing home address and to seek information to enable a contact schedule to be completed which was finalised in October 2010.
In early January 2011 KH and JD are reported to have attended the nursing home with a letter from KH's solicitor stating an intention to remove the represented person from the facility. The actions of KH and JD were discouraged by the Public Advocate and the nursing home staff, however, it is submitted that they 'covertly' removed the represented person from the nursing home with her belongings and personal items.
After gaining additional authority as guardian at the Tribunal hearing held on 7 January 2011, the Public Advocate states she attended the represented person's home with the Police and facilitated the return of the represented person to the nursing home. The Public Advocate submits that KH and JD have not made contact with the represented person or care staff since the January 2011 hearing. The Public Advocate states that it has been difficult making contact with KH and JD generally, and in recent times to obtain their views about the review of the guardianship and administration orders. As regards the represented person's accommodation, the nursing home in which she lives is considered a permanent placement. The Public Advocate states:
[The represented person] has now resided at [the nursing home] since August 2010. [The represented person] is settled in her current environment and enjoys regular contact with her large and extended Greek family, something [the represented person] was denied while being cared for and living in her home by [KH and JD]. (Page 4 of report dated 6 July 2011).

The Public Advocate submits that she should be reappointed limited guardian to make decisions about the represented person's accommodation and contact with others. She says that in her view the behaviour and intentions of KH and JD are unpredictable and she is concerned that there may be a further attempt to remove the represented person from the nursing home. The Public Advocate contends that KH and JD may also present with an alternative accommodation option that will require a further decision to be made. For the same reasons (particularly the unpredictability of KH's and JD's actions) the Public Advocate submits that she should be given the role of managing the contact between the represented person and KH and JD. The current contact arrangement with KH and JD is that they can visit the represented person on Tuesdays between 2.00 pm and 4.00 pm. The Public Advocate states that she has been advised by care staff at the nursing home that KH and JD have not been visiting.
It is the Public Advocate's submission that a family member can make the represented person's ongoing treatment decisions. She states that the represented person's extended family takes an active interest in her health care and that a nephew (TH) proposes himself to be formally appointed in that role which the Public Advocate supports. The Public Advocate notes that the represented person is on a soft diet with intermittent need for thickened fluids; she receives medication for pain relief and takes a number of dietary supplements.
KH and JD disagree with the view that the represented person's care needs can only be met in a nursing home environment. They refer to a report of the aged care assessment team dated 11 August 2010 (ACAT report) as support for the proposition that the represented person could be cared for at home through the provision of 'flexible services' such as those provided by Silver Chain. JD read from the ACAT report which does not appear to be before the Tribunal. Relevantly the report as read states:
[The represented person] lives in her own home and receive[s] care from a niece who lives with her. She has a supportive adoptive son and another niece and nephew who live in Perth. [The represented person] fell and fractured her right neck of femur on 25/7/2010 and was admitted to Royal Perth Hospital where a proximal femoral nail was inserted to mend the fracture. She is for non-weightbearing for eight weeks as per orthopaedic instructions.
[The represented person] was transferred to the Shenton Park Campus on 2/8/2010. Due to her advanced dementia and deterioration in her functional status, she is now requiring full nursing care and assistance for all selfcare including eating. Her family are agreeable to placement in a nursing home, as she will not be able to return home.
(T: 19-20, 12.07.11)
JD submits that the Public Advocate was not aware of the ACAT report but that had she been, then it might have been decided that the represented person could have been cared for at home. In his view this would have obviated the need for the Public Advocate to have returned the represented person to the nursing home after she had been removed from that facility in early January 2011. JD contends that the represented person was subject to significant stress by returning her to the nursing home.
JD challenges the view that the represented person was not, after discharge from hospital, able to walk. He submits that the represented person did not receive the appropriate rehabilitation because family members had decided that she should be placed in a nursing home.
JD disputes that the represented person was at any risk when she was removed from the nursing home in early January 2011. He states that neither the care staff nor Dr P (the care staff purportedly spoke with him) raised concerns that the represented person's health was in danger.
KH states she is appalled that she has, in her view, been shut out of the represented person's life after having cared for her for many years. She believes she was overlooked in the period when decisions were made in relation to the care of the represented person after her discharge from hospital. She submits the represented person's well being was affected because she was not consulted on her care needs or medical treatment.
KH says that she has been like a daughter to the represented person; that she initially stayed with the represented person upon a request by the represented person after the death of the represented person's husband. She contends that she was effectively the represented person's only family for ten years and that the nephew (TH) had only very limited contact with the represented person over that time.
KH submits that the represented person would be unhappy if the nephew (TH) was given the role of making her medical treatment decisions. She states that the represented person does not trust TH or other family members that support him. The mistrust stemmed from a decision by TH and HL (KH's siblings) consenting to an end of life decision for their mother allegedly against the mother's wishes.
KH says that she has not seen the represented person lately because she has not been in good health and she has had to seek alternative accommodation when the administrator (Public Trustee) evicted her from the represented person's property.
KH submits that it is the represented person's ongoing wish that she provide care for her in the home and that she be appointed her guardian for that purpose. She states that she has made the Public Advocate aware of this in numerous telephone calls but that she has been ignored. KH says also that she has verbally put alternative accommodation plans to the Public Advocate but that '… nothing has come of it'.
The Public Advocate disputes the niece's submission. She states:
… in relation to what's happened after the hearing in January [2011], the Office of the Public Advocate has not been approached by [JD or KH] or even [KH's solicitor] on their behalf, regarding an alternative plan. There have been no phone calls received from any of the three parties regarding proposals. I have no phone call on record that I've actually spoken to [KH] about her [the represented person's] wishes. There's been nothing tabled, nothing suggested, no plans.
We've actually been dealing with phone calls in relation to the matter, but it's more to do with the superfluous stuff around - about the ACAT and non‑weight‑bearing - whether [the son] is adopted. So it's not stuff or information that's relevant to providing an alternative accommodation plan regarding [the represented person]. (T:32, 12.07.11)
The nephew (TH) states that he proposes himself as the represented person's limited guardian to make her ongoing treatment decisions.

The need for an administrator, evidence and submissions

The Public Trustee was first appointed the administrator of the represented person's estate on 19 November 2009.
The administration of the represented person's estate has two elements: the management of her day to day financial affairs and a forensic investigation of certain transactions on her bank account.
The Public Trustee states that he actively supported the Public Advocate in her action to have the represented person returned to the nursing home after having been removed by KH and JD in January 2011.
The Public Trustee submits that KH was motivated to remove the represented person from the nursing home by her desire to remain in the represented person's property. A 'Notice to Quit' the represented person's property had been served on KH on 14 December 2010 which required her to give vacant possession by 14 January 2011. KH did not comply and eviction action was taken in the Magistrates Court. An order for eviction was made but KH again did not comply and Police action was ultimately needed to enforce the eviction order.
KH states that the represented person:
… would never throw me out of her house. That's almost like my home. She asked my father for me to move in with her once her husband had passed away so she would not be on her own. (T:43, 12.07.11)
The Public Trustee states that JD made complaints about his actions and those of the Public Advocate to the Attorney General but that 'an investigation has shown that in both cases our actions have been taken to protect [the represented person] and her financial interests'. (Page 2 of the Trust Manager's report dated 27 June 2011)
The Public Trustee states that as at the end of June 2011, the represented person's estate comprises her property (which is being made ready for rental) and $170,000 in cash funds.
In respect to the investigation into transactions made on the represented person's bank, it is instructive to quote the report of the Senior Investigations Officer of 8 July 2011, in its entirety:
Background
The Public Trustee was appointed plenary administrator for [the represented person] following a hearing of the State Administrative Tribunal (SAT) on 19 November 2009.
The Public Trustee was advised of allegations made during the hearing that [KH] had not appropriately managed [the represented person's] finances in the years leading up to the hearing.
The Public Trustee was also advised of the strained relationships between family members of [the represented person], with [KH] and her partner [JD] at loggerheads with most other family members.
The matter was referred to me to commence an investigation of transactions on the bank account of [the represented person].
[KH] lodged an application to the SAT on 29 April 2010 seeking the order of 19 November 2009 be revoked and that she be appointed administrator. A SAT hearing for that application on 28 May 2010 requested a report from the Public Trustee and a subsequent hearing was scheduled for 30 June 2010.
The hearing for 30 June 2010 was adjourned to 2nd September 2010 at the request of [KH's] legal representative.
A preliminary Forensic Accounting Report was provided to the SAT for the hearing of 2nd September 2010. The report detailed results of my investigations to that stage.
The Public Trustee[']s appointment as plenary administrator was confirmed at the hearing of 2nd September [2010] until further review by 20 July 2011.
Investigations since September 2010
My report provided to the SAT hearing of 2nd September 2010 mentioned that I had written to [KH's] legal representative [ ] on several occasions requesting explanation of 41 withdrawal transactions totalling $137,605.40 made on the bank account of [the represented person] between the period March 2007 to May 2009.
The letter was sent on 17 May 2010. I had received no response by [sic] from [the legal representative] and sent a further letter on 29 June 2010, including faxing a copy of the original letter to [the legal representative].
By the 2nd September 2010 there had been no response from [the legal representative].
At the hearing of 2nd September [the legal representative] produced a [four] page document which purported to list expenditure incurred by [KH] on [the represented person] for the period 2007 to 2009.
It is the opinion of the Public Trustee that many of the items listed on this document were questionable and the amounts allocated to personal expenses appear grossly inflated. The Public Trustee could not accept this as valid expenditure without sighting authentic supporting evidence.
[JD] produced a document listing numerous 'Collectables' which he appeared to suggest had been purchased on behalf of [the represented person] as an investment strategy 'because her bank account was going backwards'.
The list consisted of 7 stamps, 3 coins and 2 gems. It appeared that this was produced as an explanation for an amount of $50,000 withdrawn from [the represented person's] bank account by [KH] on 19th March 2007 in the form of a bank cheque payable to herself.
[The legal representative] stated at the hearing that he had been provided with further documents which he would categorise and forward to the Public Trustee within 7 days of the SAT hearing.
I wrote to [the legal representative] on 8 September reminding him of his statement that a further itemised listing of expenditure would be provided. I also requested explanation of the 41 withdrawals listed on my letter of 17 May 2010.
[The legal representative] sent me a letter on 9th September requesting I provide the balance of [the represented person's] bank accounts as at June 2006. I could see no relevance to his request.
I replied to [the legal representative's] letter on 9th September advising I was still in the process of reconstructing [the represented person's] assets as from June 2003 and in particular as at the time when [KH] first moved in with her in June 2006. I reminded [the legal representative] that I was still waiting for the promised information.
I wrote again to [the legal representative] on 14 September 2010 seeking the explanations of withdrawal transactions and requesting copies of certificates of authenticity and purchase records be provided for each of the items listed as 'Collectables' and provided at the SAT hearing.
On 15th September 2010 [the legal representative] faxed a covering letter and 9 page document listing 85 miscellaneous items, papers and documents suggested to be the information I was seeking.
The listing detailed no more than miscellaneous 'rubbish' and included completely irrelevant items such as the daily menus for Stirling Day Care Centre, personal mail, Centrelink advices and letterbox flyers from the Bayswater Echo Community Services.
I responded to [the legal representative] on 16 September 2010 advising that the Public Trustee respectfully declined to accept that any of the items listed bore relevance to our enquiries.
I wrote and faxed [the legal representative] on 21 September again requesting the information I sought regarding the 'Collectables' and seeking an indication of when the Public Trustee could take possession of the items given they were the property of the Represented Person [sic] and needed to be securely held.
I wrote and faxed again on these lines on 1st October 2010, 21st October 2010 and 30 November 2010. No response has ever been received.
In December 2010 I referred to the Public Trustee[']s Legal section to consider what options were available to pursue recovery of the Collectables and seek further explanation of the funds withdrawn from [the represented person's] account.
I was concerned that the collectables, if in fact these had ever been purchased for [the represented person], were at risk while held by [KH and JD]. There was no certainty that the items were insured or secured against theft.
At this time the health of [the represented person] had deteriorated at (sic) she was admitted to Nursing Home Care in early September 2010. Matters with respect to guardianship of [the represented person] escalated, including her unauthorised removal from a Nursing Home facility by [KH and JD].
There were urgent SAT hearings called in regard to guardianship issues with the Office of the Public Advocate involved in arranging the return of [the represented person] to nursing home care.
It appeared unlikely that [the represented person] would recover sufficiently to return to her home. The Public Trustee then considered the options of either seeking market rental from [KH and JD] or having them vacate [the represented person's] property to allow rental.
By December 2010 the Public Trustee had commenced legal proceedings to enforce the eviction of [KH and JD] from the residence of [the represented person]. This included involvement of the police, Bailiffs and independent process servers.
The Public Trustee became aware of separate matters concerning [JD] involving police investigations.
The property was eventually vacated by [KH and JD] in March 2011.
The 'collectables' have never been provided to the Public Trustee and there has still not been an acceptable response from [the legal representative] with respect to an explanation of the transactions made on the bank account of [the represented person] by [KH].
Conclusions
As a result of my investigations and the scant, irrelevant responses provided by [the legal representative] on behalf of [KH], I am of the opinion that the withdrawals I have identified in the period March 2007 to May 2009 from the bank account of [the represented person] were made for the benefit of [KH] rather than [the represented person].
The suggestion by [JD] that $50,000 withdrawn from the bank account of [the represented person] was used to purchase 'Collectables' on her behalf has not been confirmed.
No evidence of purchase receipts or Certificates of Authenticity for these items has ever been produced to the Public Trustee despite our requests. It is the opinion of the Public Trustee that these items were never purchased on behalf of [the represented person].
The events of the past 12 months are of concern to the Public Trustee with respect to behaviours of [KH and JD].
It appears unlikely that the 'collectables' will ever be produced and there seems little possibility that any explanation of the withdrawal transactions will be forthcoming.
Recommendation
The Public Trustee Legal Officer is presently considering legal options to pursue the recovery of funds which appear to have been miss‑appropriated [sic] from the bank account of [the represented person].
An extension of the current plenary order is recommended.
KH regards the submissions of the Public Trustee as 'baseless'. She says that she has provided the Public Trustee with all relevant receipts and documentation that clearly show the represented person's expenditure. She states:
… there is no misappropriation of funds … If you clearly look through all the receipts you can see there is nothing outlandishly outlaid. It's basically for everyday living in a period of how long, three and a half years … I certainly did not get paid for cleaning or ironing for her or caring for her or doing her accounts. I didn't take out, you know, between five and $10,000 in a period of six months. (T: 45, 12.07.11)
As regards the 'collectables' KH and JD state that when they were evicted the items were left in the represented person's property, in a box in the represented person's bedroom.
JD questions whether the son (JS) had access to the property. The Public Trustee states that the only persons who had access to the property after the niece's eviction were officers of the Public Trustee.
KH submits that she should be appointed the administrator of the represented person's estate because that is what the represented person would want.

The Tribunal's decision in guardianship

I accept the position held in common by the parties that the represented person is in ongoing need of a guardian. There is no less restrictive alternative to the making of orders. There remains a dispute about what is the most suitable accommodation for the represented person, what contact arrangements should be in place and who it is who should give consent to her treatment and health care.
The position of KH and JD is that the represented person need never have been placed in a nursing home after treatment for a fractured bone in her leg. They claim they were not consulted about that decision and in any case they were prepared to continue to care for the represented person at home. They state further that it remains the strong wish of the represented person to return to her home.
Whilst I acknowledge that KH cared for the represented person for a number of years, I do not otherwise accept her submission. I accept the evidence of the Public Advocate that a number of unsuccessful attempts were made by the hospital treating team to discuss the represented person's situation with KH at the time of the represented person's hospital admission and discharge. This is consistent with the experiences of the Public Trustee who, during the same period, was also attempting (unsuccessfully) to communicate with KH through her solicitor.

I accept that a reassessment of the represented person's care needs made during her hospital admission showed that she had declined and required full nursing care. In my view, the decision to place the represented person in a nursing home at that time was appropriate given that KH was not engaging with the treating team about a workable alternative. I am satisfied on the evidence that since then KH has not put to the Public Advocate (who was given the task of deciding the represented person's accommodation from 7 January 2011) any substantive accommodation plan for her consideration. It appears the only active participation by KH and JD in the period after the represented person was admitted to and discharged from hospital was, on 6 January 2011, to remove her from the nursing home without authority and against the advice of the care staff and Public Advocate. This was, in my view, an action clearly contrary to the represented person's best interests and was undertaken when the Tribunal was scheduled to hear a review of the guardianship order initiated by KH herself, on 11 January 2011 (subsequently brought forward to 7 January 2011 on the application of the Public Advocate because of the removal of the represented person from the nursing home).
It is not sufficient for KH to justify that action on her understanding of what are the represented person's wishes. Because of the represented person's dementia, which is a progressive condition, she was and remains in no position to make reasonable judgments about how to manage her accommodation and extensive care needs. As already stated, it was open to KH to submit a detailed proposal for represented person to be cared for at home. This did not occur.
Despite the care that KH provided the represented person in the past, based on the events described in these reasons that have occurred in late 2010 and during 2011, I cannot be satisfied that she would act in the represented person's best interests. I cannot be satisfied that KH would be able to put the interests of the represented person above her own. This is further demonstrated in the way in which it appears the represented person's estate has been managed when under the care of KH and JD (see below).
I am heartened that the represented person now has the benefit of visits by an extended family who, according to the Public Advocate, take an active interest in her care. It is on this basis that the Public Advocate proposes that the nephew (TH) be appointed the guardian to make treatment decisions and for the Public Advocate to remain guardian for the more contentious areas of the represented persons' accommodation and contact.
I am not persuaded by the Public Advocate's submission. The represented person's family remains deeply divided between KH and JD and other family members. There is the uncontested evidence of KH that the split with her siblings (which includes TH) arose from end of life decision-making for their mother and that that situation disturbed the represented person and led her to mistrust TH and others.
When acting in the best interests of the represented person the guardian must, as far as possible, maintain her supportive relationships (s 51(2)(g) of the GA Act). Despite all that has happened I am satisfied that the represented person would, if able to express her wishes, still want a relationship with KH. Apart from direct contact, this would include keeping KH abreast of developments in the represented person's health and medical needs. I cannot be satisfied TH could do this given the fractured relationship he has with KH.
In my view it remains in the represented person's current best interests for the Public Advocate to be her guardian. In that way she has the appropriate protection from arbitrary decisions and all family members can have input into the decisions that need to be made for her in the most significant areas of her life: her accommodation, the contact she has with others and her medical treatment.
I see no evidence to suggest that reconciliation will take place in the family and therefore am satisfied that the guardianship order should be made for the maximum period available under the GA Act, namely, five years (s 84 of the GA Act).

The Tribunal's decision in administration

There is an obvious necessity for the appointment of an administrator given the need to protect and manage the represented person's estate and because there remains unanswered the question of the use of her funds when she was under the care of KH and JD.
The evidence of the Public Trustee, which I accept, is disturbing. It indicates an unaccounted for level of expenditure from the funds of the represented person in excess of $130,000 in two years from 2007 to 2009 when she was under the care of KH and JD. During that time an enduring power of attorney in favour of another niece (HL) was in place but seemingly of limited practical effect. The explanation for the expenditure given by KH and JD to the Public Trustee is manifestly inadequate, as is the explanation for the purported purchase of the 'collectables' and their current whereabouts.
The explanation of KH and JD has not been enhanced by the evidence they have given in these proceedings.
There is a very real risk that a substantial amount of the represented person's funds have been used for the benefit of others.
In these circumstances I cannot seriously entertain the proposal of KH that she be appointed the administrator of the represented person's estate.
It is clearly in the represented person's best interests that the Public Trustee remains as her plenary administrator. As with the guardianship order, the review of the administration order should be set at the maximum period of five years.

Orders

Guardianship

1.The order made on 11 January 2011 appointing the Public Advocate as the represented person's limited guardian with the functions of deciding where and with whom she is to live, either permanently or temporarily; to determine the contact, if any, she should have with others and the extent of that contact; and to make treatment decisions, is confirmed.
2.The order is to be reviewed by 12 December 2016.

Administration

1.The order of 2 September 2010 appointing the Public Trustee as the plenary administrator of the represented person's estate, is confirmed.
2.The order is to be reviewed by 12 December 2016.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER