AY
[2024] WASAT 63
•2 JULY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AY [2024] WASAT 63
MEMBER: MS R BUNNEY, MEMBER
HEARD: 1 JULY 2024
DELIVERED : 1 JULY 2024
PUBLISHED : 2 JULY 2024
FILE NO/S: GAA 2106 of 2024
GAA 2135 of 2024
GAA 2136 of 2024
AY
Represented Person
RI
Applicant
Catchwords:
Enduring power of attorney - Enduring power of guardianship - Allegations made against enduring attorney and guardian - Allegations not accepted by the Tribunal - Conflict of interest - Personal dispute between the applicant and the enduring attorney and guardian - Applications dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 40, s 43(1), s 44(1), s 64(1), s 97, s 107(1), s 109(1)(c), s 110N
Result:
Applications dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons for decision were delivered extemporaneously on 1 July 2024 and have been edited only to anonymise parties, add headings, correct grammatical errors and some infelicity of expression, without variation to the substance thereof.)
Introduction
AY is a 67-year-old man who lives with a cognitive impairment. His daughter RI was living with him up until December 2023. RI says that AY's enduring attorney and enduring guardian, DS, physically assaulted her by pushing her out of AY's house (Home) and 'kicked her out'.
Around four months later, RI obtained a violence restraining order against DS. About two weeks after that, RI made this application to the Tribunal to seek the revocation of both the enduring power of attorney (EPA) and enduring power of guardianship (EPG). RI proposed herself for appointment as AY's guardian and administrator.
RI says that AY is terrified of DS. RI says that DS has stolen money from AY, herself and her brother TH. TH currently lives with AY and assists with his care.
I have decided to dismiss the applications as I do not accept RI's evidence. These are my reasons.
Three questions the Tribunal must answer
When deciding whether or not to appoint a guardian or an administrator for AY, the Tribunal must answer three questions:
(a)Does AY lack the capacity to make his own decisions about personal and financial matters?
(b)If so, is there a need for the Tribunal to make an order to appoint a guardian or an administrator? Or is there a less restrictive way for decisions to be made in the AY's best interests?
(c)If there is a need for an order, who should be the guardian or administrator, what functions or powers should they have, and how long should the orders run before they are reviewed?
However, the starting point for the Tribunal, when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) 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 in respect of matters relating to their estate and their person. It is only when this 'presumption of capacity' has been set aside that the Tribunal is able to make guardianship and administration orders.
The Tribunal will make findings of fact about capacity by reference to the evidence of medical and allied health professionals, and also to lay evidence. The documents that were filed with the Tribunal in this matter are listed in the Annexure to these reasons. I have considered all of that evidence and need not set it out in detail. The relevant features are briefly summarised later in these reasons.
AY's views and wishes
The Tribunal must take into account AY's views and wishes. AY did not attend the hearing of 1 July 2024 (Hearing), but he expressed his views to the investigator from the Office of the Public Advocate (Investigator). AY told the Investigator he wants DS to continue to help him with his finances and his personal matters. AY said that DS is the only one that understands him and they have known each other for over 30 years.
AY says his NDIS package is too complicated for him to manage so DS speaks with the NDIS on his behalf. AY said he is not able to deal with Centrelink, so DS assists with that too. AY also acknowledged that TH helps him at Home as well.
In addition, AY's wish in 2021, as recorded in the EPA, was that DS would manage his finances. Likewise in 2022, AY signed the EPG that appoints DS as his sole enduring guardian.
AY said that RI and his former wife CY (the mother of RI and TH) do not help him at all. AY said that he did not believe that DS assaulted RI as alleged, although he did acknowledge that DS and RI do not get along.
Question 1 - does AY lack the capacity to make his own decisions about his personal and financial matters?
(1)(a) When can an administrator be appointed?
To appoint an administrator for AY, I must be satisfied that he is currently unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.
(1)(b) Does AY have a mental disability?
AY suffered a traumatic brain injury when he was aged six, although this injury did not impact AY's cognitive function at that time. A lacunar infarct occurred at an unknown time and then general cognitive decline was reported following a cranioplasty in 2019 when a titanium plate was removed.
The Investigator asked AY how his condition affects him. AY said that he finds it difficult to talk properly, to find words and make his mouth move. He also told the Investigator that he finds it difficult to understand what his doctors are saying. I find that that AY has insight into the difficulties that he now has.
RI gave evidence that AY will have good days and bad days, and on a bad day, he will stare off into space and is not really able to speak or engage.
Dr L states that AY's capacity fluctuates and he was unsure about AY's ability to make decisions about financial matters. Dr Lim says that AY can indicate his preferences, but he is dependent on others to be able to make decisions.
I find that the diagnosis of the cognitive impairment comes within the meaning of 'mental disability' as defined in the GA Act.
(1)(c) Does the mental disability cause AY to be unable to make decisions about his estate?
I am satisfied, and I find, that the mental disability is the cause of AY's inability to make reasonable judgments in respect of his estate. The evidence shows that AY's difficulties with his cognition started following the cranioplasty in 2019.
In my view, there is no doubt that the cognitive impairment is the cause of AY's inability to make reasonable judgments in respect of his estate.
(1)(d) Conclusion on capacity to make financial decisions
Having regard to the extensive documentary evidence provided to the Tribunal and oral evidence given at the Hearing, I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of AY's ability to make reasonable judgments in respect of his estate.
I am persuaded by the evidence before me, and I find, that AY has a mental disability within the definition of the GA Act. AY is therefore a person for whom I could appoint an administrator.
(1)(e) When can a guardian be appointed?
To appoint a guardian for AY, I must be satisfied 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.
(1)(f) Does AY lack the capacity to make personal decisions?
I am satisfied, and I find, that AY is currently incapable of looking after his own health and safety. AY has a number of chronic health conditions, such as renal disease and diabetes, and due to his cognitive impairment, I am satisfied that he is unable to manage these health conditions himself. AY is currently in hospital due to a toe amputation as a result of his diabetes.
I am satisfied, and I find, that AY is currently incapable of making reasonable judgments in respect of his personal matters. AY is aware that his NDIS plan is too complicated for him to manage himself and he require DS's assistance. Dr L confirmed that AY would need assistance to be able to make decisions about accommodation and services.
I am satisfied, and I find, that AY is clearly in need of supervision and oversight in order to protect his health and safety. AY currently has carers assisting him 24 hours per day, 7 days per week.
(1)(g) Conclusion on capacity to make personal decisions
I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of AY's ability to make reasonable judgments in respect of his personal matters. AY is therefore a person for whom I could appoint a guardian.
Question 2 - is there a need for orders or is there a less restrictive option available?
Having regard to that evidence, there is no doubt that AY requires assistance to deal with his estate and to make decisions about his personal matters. The question is whether he needs an administrator and a guardian, or whether there is a less restrictive option available. Orders should not be made if AY's needs could, in the opinion of the Tribunal, be met by other means less restrictive of his freedom of decision and action.
AY signed the EPA in 2021 appointing DS as his attorney. The EPA is less restrictive as it was prepared at a time when AY had capacity and he was able to decide who he wanted to make decisions for him.
It is therefore necessary to examine whether the EPA is a less restrictive way for decisions to be made in AY's best interests.
(2)(a) Has the EPA been working in AY's best interests?
An enduring power of attorney is a private agreement between the donor (AY in this case) and the donee (DS in this case). Before the Tribunal will scrutinise the transactions undertaken using an enduring power of attorney, there must be something about the matter that requires an inquiry. Mere suspicion is not enough.
RI told the Investigator that she did not know anything about AY's financial situation except that he has paid off his mortgage and she helped him set up the disability support pension. RI told the investigator that she believed that AY needed help in managing his money and that she is the best person to perform that role.
RI then stated in the Hearing that she no longer wanted to be a decisionmaker. RI's view was that the Public Trustee and Public Advocate should be appointed as AY's substitute decisionmakers.
RI gave evidence that DS stole $3,700 from her, $1,700 from TH and $70,000 from AY's superannuation. TH says that it did not happen.
RI has no evidence of the alleged theft of $70,000 in superannuation other than a note that she wrote in her phone. RI said that in June 2023, DS asked her to write the note in her phone as a record so DS would not forget that she had taken $70,000 from AY's superannuation. RI says she has screen shots of text messages where DS had asked her to buy Apple gift cards to send to someone overseas, and that she has videos of DS mistreating AY.
RI says she has had concerns about DS's management of AY's finances since the EPA was signed in 2021. RI said that she did not say anything to AY (about the $70,000 being taken) for fear of getting kicked out of Home by DS, where she had lived her whole life.
RI gave conflicting evidence about the reasons why she was kicked out. RI initially said that she did not know why she was kicked out of Home in December 2023. At another point, she said she was kicked out for standing up for AY and asking DS when the money would be paid back.
RI stated that she was concerned about the content of AY's Will. RI was worried that his Will may have been changed to exclude her from receiving a share of AY's Home. RI also gave evidence that her intention was to move back into the Home as she has nowhere else to go.
RI gave evidence that AY wants to move into a 'high care' residential home. It was alleged that DS had pressured and manipulated AY into staying at Home. RI believes that if AY dies while living at Home, DS, as enduring attorney, has the right to acquire the Home, evict TH and sell the Home.
I do not accept RI's evidence in relation to the allegation that DS stole $3,700 from RI, $1,700 from TH and specifically, the $70,000 from AY's superannuation. From the material submitted, I find that RI clearly and immensely dislikes DS. I find that the hostility and animosity that RI expresses towards DS undermines the reliability of RI's account of what DS is alleged to have done.
I find that RI's desire to move back into the Home is the motivating factor in her allegations made against DS and is the basis of this application.
(2)(b) Has the attorney acted with reasonable diligence to protect AY's interests?
I am satisfied, and I find, that DS has acted with reasonable diligence to protect AY's interests. DS was able to particularise AY's income and expenses very clearly and to a standard that shows careful consideration and understanding of his financial position. In addition, TH is paying a reasonable proportion of the bills in the Home and AY's debt with Centrelink is being paid off.
TH also gave evidence that DS will discuss all financial transactions with AY before they are made. I accept TH's evidence and I find that DS is acting as attorney with the reasonable diligence required to protect AY's interests.
(2)(c) Is the EPA an appropriate way for financial decisions to be made?
I am satisfied, and I find, that the EPA is operating to provide an effective way for AY's finances to be managed in his best interests. I will therefore dismiss the application to revoke the EPA.
(2)(d) Is there a need for an administrator?
As there is a less restrictive means of meeting AY's needs, it follows that he is not in need of an administrator. I will therefore dismiss the application in so far as it relates to administration.
(2)(e) Has the EPG been operating in AY's best interests?
I am satisfied that the EPG is an effective way for decisions to be made in AY's best interests. DS has arranged AY's NDIS plan, coordinates his numerous appointments, including medical, physiotherapy, occupational therapy, dentist and various other meetings relating to the NDIS services.
DS was able to provide a very thorough document outlining the personal decisions she has made for AY and the appointments she arranged for him from 2019 onwards, which is prior to the EPG being signed.
No reports have been made by any of the service providers regarding any sort of assault or verbal abuse perpetrated by DS towards AY. The Support Coordinator commented that DS is extremely diligent, detail orientated and helps the Support Coordinator to perform her role better.
I will therefore dismiss the application to revoke the EPG.
(2)(f) Is there a need for a guardian?
As there is a less restrictive means of meeting AY's needs, it follows that he is not in need of a guardian. I will therefore dismiss the application in so far as it relates to guardianship.
Orders
GAA 2106 of 2024
The Tribunal orders:
1.The application is dismissed.
GAA 2135 of 2024
The Tribunal orders:
1.The application is dismissed.
GAA 2136 of 2024
The Tribunal orders:
Administration
1.The administration application is dismissed.
Guardianship
2. The guardianship application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
2 JULY 2024
Annexure
Evidence and material before the Tribunal
(1)Enduring power of attorney dated 15 October 2021 appointing DS as the sole enduring attorney (EPA), prepared and witnessed by solicitors, expressed to continue in force notwithstanding AY's subsequent legal incapacity.
(2)Enduring power of guardianship dated 28 September 2022 appointing DS as the sole enduring guardian (EPG), witnessed by a doctor and letter to Support Coordinator of the same date enclosing EPG.
(3)Violence restraining order, affidavit in support and transcript of hearing of 11 April 2024.
(4)Application filed by RI dated 29 April 2024, submissions filed with the Application and further submissions filed on 22 May 2024.
(5)Service provider report prepared by the Support Coordinator.
(6)Service provider report prepared by the physiotherapist.
(7)Service provider report prepared by the occupational therapist.
(8)Medical report prepared by Dr L.
(9)Discharge summaries and clinic letters from Hospital (89 pages).
(10)Documents filed by DS including submissions filed 24 May and 17 June 2024, statement in respect of the actions taken pursuant to the EPA and EPG (19 pages), bank statements and a detailed statement of AY's income, expenditure, assets and liabilities.
(11)Report from the Investigator dated 27 June 2024 (17 pages).
(12)Current NDIS plan.
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