BA - [2024] WASAT 107

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   BA [2024] WASAT 107
MEMBER:   DR E MARILLIER, SENIOR MEMBER
HEARD:   3 SEPTEMBER 2024
DELIVERED          :   3 SEPTEMBER 2024
PUBLISHED           :   20 SEPTEMBER 2024
FILE NO/S:   GAA 2363 of 2024

BA
Represented Person
FS AND FT
Applicants

Catchwords:

Guardianship and administration - Informal supports inadequate - Less restrictive alternative to administration order - Enduring power of attorney with corporate donee - Orders to clarify that donor has lost capacity even where declaration by Tribunal not required to bring enduring power of attorney into force

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43(1)(b), s 43(1)(c), s 64, s 64(1)(a), s 64(1)(b), s 106

Result:

Public Advocate appointed limited guardian
Enduring Power of Attorney recognised as less restrictive alternative to appointment of an administrator

Category: B

Representation:

Counsel:

Represented Person	:	M G Devlin
Applicants	:	In Person

Solicitors:

Represented Person	:	Young and Young
Applicants	:	N/A

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

FY [2019] WASAT 118

REASONS FOR DECISION OF THE TRIBUNAL:

(The following reasons were delivered orally on 20 September 2024. The orders were made on 3 September 2024 at hearing as they were required urgently to ensure service provision. I advised parties on that date that I would provide detailed reasons both orally and in writing at a future date. These are those reasons, edited only to anonymise parties and insert headings.)

Background

This is an application by FS and FT (applicants) for the appointment of an administrator and a guardian for FS's mother, BA. The application is made under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act). BA is now 88 years old, and until his recent passing was the full-time caregiver for her son R, who was born with congenital heart defects and who suffered a catastrophic brain injury while undergoing corrective surgery at about age 10 years. The application came about in circumstances where BA had become physically unable to meet R's care needs at home, in the context of 2 years of mounting concern regarding her refusal to allow others to assist in caring for him.
Both BA and R were hospitalised, and sadly R passed away from COVID on 1 May 2024.
The application was made some two weeks later, due to concerns regarding BA's memory (she could not recall why she had been admitted), capacity to self-care and her refusal to engage in rehabilitation. The applicants noted concerns pre-dating her admission including non-payment of bills, inability to work out why her phone was not working and episodes where she did not recognise them.

Principles to be observed

In making my decision, I am mindful of the principles set out in s 4 of the GA Act.
•my primary concern is the best interests of BA;
•BA is presumed to be capable of looking after her own health and safety; of making reasonable judgments in matters relating to her person; of managing her own affairs; and of making reasonable judgments in respect of matters relating to her estate until the contrary is proved to the satisfaction of the Tribunal;
•a guardianship or administration order may not be made where there is an alternative means of meeting BA's needs that is less restrictive of her freedom of decision and action;
•where an order is made, it must be in terms that impose the least restrictions on the BA's freedom of decision and action; and
•I must seek to ascertain, as far as possible, the views and wishes of BA.

What the Tribunal must be satisfied of

Before appointing an administrator, I must first be satisfied that BA is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate.[1]
[1] Guardianship and Administration Act 1990 (WA) (GA Act) s 64(1)(a).
I must also be satisfied that BA is in need of an administrator.[2]
[2] Ibid, s 64(1)(b).
Before appointing a guardian, I must be satisfied that BA is:
(i)incapable of looking after her own health and safety; or
(ii)unable to make reasonable judgments in respect of matters relating to her person; or
(iii)in need of oversight, care or control in the interests of her own health and safety or for the protection of others.[3]
[3] Ibid s 43(1)(b).
In addition, I must be satisfied that BA is in need of a guardian.[4]
[4] Ibid s 43(1)(c).

Mental disability

At the first hearing on 18 June 2024, BA had left hospital and returned home with the assistance of her son L who had arrived from New Zealand, where he lives. She had instructed a lawyer to represent her and was supported by neighbours and a priest who had been providing pastoral care following R's death.
The only medical report before me at that time had only been filed on the morning of the hearing, and in the circumstances, I was satisfied that it was in BA's best interests (and safe) to adjourn the hearing so that she could review the evidence with her lawyer and also, if she wished, seek additional specialist assessment of capacity.
At the final hearing on 3 September 2024, I had reports from the original psychiatrist, Dr F (who saw BA on 6 and 7 May 2024), consultant physician Dr R (who assessed BA on 15 August 2024) and long-term general practitioner (GP), Dr A who has known BA for 10 years.
Dr F records that as well as meeting twice with BA herself, he also reviewed her medical records, and discussed her case with her treating physician, the social worker on the treating team, a consultant physician at the hospital who had known BA and R for years and with the applicant. Dr F records he had been asked by the treating team to assess BA for three reasons:
(1)the team were worried about her wellbeing and psychological adjustment to R's death;
(2)she was not cooperating with assessment and treatment of her own disability (noting it was believed she had been immobile for four days prior to admission and unable to care for either herself or R); and
(3)there was doubt about her decision-making capacity in relation to her own care and support needs, and to her own and R's estate.
Dr F expressed the view that despite a score of 24/30 on minimental state examination (MMSE), BA showed strong indicators of cognitive impairment in the interviews, including having no recollection of Dr F or their conversation when he visited her 24 hours later, and no recollection of how she had come to the hospital two weeks earlier. She had a disorganised, repetitious and confusing narrative style, telling repeated anecdotes lacking integration of any new information. Dr F recognised, (as do I), that BA dedicated her life to R, but he did not feel that he was seeing any psychiatric disorder or abnormal grief reaction causing the memory difficulties. Rather, he found that BA's functional capacity was now diminished by progressive impairment not only of her mobility but also of her cognition. Specifically, he observed significant impairment of recall and executive function and a lack of insight and judgment, consistent with an emerging dementia. Dr F expressed the view that BA no longer had capacity to make reliable decisions regarding medical treatment, lifestyle, or major financial issues. He supported the need for this application to be made. He indicated that further clinical testing including brain imaging would allow more specific diagnosis.
Dr R assessed BA on 15 August 2024, some three months after Dr F. He made a formal diagnosis of progressive memory loss of mixed, Alzheimer's type. He found BA had lost capacity in all six domains the Tribunal asks doctors to comment on, including simple and complex financial decision-making, legal decisions, and decisions regarding medical treatment, accommodation and service provision. He supported an application to the Tribunal and recommended that the Office of the Public Advocate (Public Advocate) and the Office of the Public Trustee (Public Trustee) be appointed. In his accompanying letter to Dr A (the referring GP) he explains that BA feels her memory is not that bad but acknowledges misplacing objects around the house such as her toothbrush. BA had told him she was managing her own bills and using the ATM and cheques without difficulty.
In fact, BA had given her neighbour Mr S a cheque for $100,000 and asked him to take over paying her bills some months previously, which he was doing through an account in his name, and he was clearing her mail daily so that he could identify and deal with the bills. Both BA and Mr S stated this in oral evidence which I accept.
Mr W from AET who managed the compensation trust for R provided evidence that about two-three weeks prior to the hearing he had had a telephone conversation with BA where she told him she had lost control of her bank accounts, and they were refusing to cash cheques to pay her private support worker. It appeared to Mr W that this was because BA had refused to provide verbal identification to the bank when they called her to verify that she had in fact provided the cheques to her support worker to cash at the bank. Mr W tried to explain the need for this verification by the bank to BA, but she was unable to grasp what he was telling her, and the issue remained unresolved, putting BA's care arrangements at immediate risk. I accept Mr W's evidence.
Dr R conducted formal cognitive testing and BA scored 18/30 on Montreal Cognitive Assessment (MoCA). He wrote '[h]er decisionmaking capacity was impaired including testamentary capacity despite repeated instructions'.
Dr A attached a copy of Dr R's letter to her report. Although she ticked 'no' in answer to the question 'Does your patient have a mental disability?' she indicated that BA lacks capacity for complex financial and legal decisions, and to make arrangements for her own support services. Dr A also attached a brief '[t]o whom it may concern' letter from Dr R stating that BA has memory loss with impaired decisionmaking capacity.
I am satisfied that along with the descriptions by her neighbour and Mr W detailed above, and BA's inability to recall her visit to Dr R when I asked her about it, and the applicants' description of an occasion on which BA did not recognise her daughter and son-in-law when they visited for the second time in two days, the medical evidence from three doctors is clear that BA does have a progressive memory impairment. I am satisfied that this constitutes a mental disability both in the definition in s 3 of the GA Act which includes dementia, and as set out in FY [2019] WASAT 118 at [24] - [32].

Capacity

BA has a complex estate which includes multiple properties, one of which I was advised by the applicants was put on the market just after R's death. As explained above, BA gave a $100,000 cheque to her neighbour to manage her bills informally some months ago, and he is clearing her mailbox to ensure nothing is missed. Mr S assures me that he is keeping detailed records of all transactions and keeping his own funds separate from BA's, but neither he nor BA appeared to recognise how vulnerable this arrangement makes both of them. Mr S was unaware of the problems BA was having with the bank and that as a consequence, her private support worker was no longer coming in to provide supports as she had not been paid for a number of weeks.
This demonstrates that BA has lost the capacity to make her own financial arrangements and also her own support arrangements, as even with Mr W attempting to talk her through the issues over the phone, and the informal supports described, the issue of payment for the support worker is unresolved.
This touches on both financial decision-making, and personal decisionmaking. I am satisfied and I find that by reason of a mental disability BA has lost the capacity to make reasonable judgments in relation to all of her estate, as even the week-to-week bill-paying is not being capably managed by BA, and I am also satisfied and I find that her health and safety are at risk, she is not able to make reasonable judgments about her person and she is in need of oversight, care and control in the interests of her own health and safety due to her inability to resolve the issue of payment of her support worker.
BA is a person for whom I could appoint both an administrator and a guardian if I need to.

Need

Is there a less restrictive means of meeting BA's needs?

BA executed an enduring power of attorney (EPA) appointing National Australia Trustees (now known as Australian Executor Trustees or AET) on 13 May 1996. This appointment was in force notwithstanding her subsequent incapacity and was accepted at the time. It is therefore in force and does not require a declaration of incapacity by the Tribunal under s 106 of the GA Act. BA has had an ongoing, trusting relationship with AET since that time in relation to R's trust. Mr W for AET indicated that so long as the Tribunal made an order making it clear that BA had lost capacity and that as a consequence AET should assume control of all aspects of financial decision-making for BA, they were willing to do so. AET were already aware of the proposed property sale and would work with Mr S around returning the funds not yet expended from the $100,000 cheque into an account in BA's name.
This demonstrates the difficulty for donees of an EPA which is in force notwithstanding the subsequent incapacity of the donor in identifying the point at which they are no longer merely following the direction of a competent donor, and instead needing to become the substitute financial decision-maker. This is particularly so where they are not in regular, close personal contact, and where the donor lacks insight into their loss of capacity. For the EPA to be able to be exercised in practical terms, financial institutions must accept that authority for decisions has transitioned to the donee. For this reason I will make the declaration of incapacity that I could make under s 106 or if I were appointing an administrator under s 64 of the GA Act, but indicate that the EPA exists as a less restrictive alternative to the making of an administration order and is now the mechanism by which all financial decision-making should occur.
I am satisfied this is a less restrictive alternative to the making of an administration order. It accords with BA's wishes as expressed in her appointment of AET in 1996. As a consequence, there is no need for an administration order, and I will dismiss the administration application.
There is a clear and immediate need for a guardianship order. BA has lost her support worker of choice and still requires daily personal assistance. She is fiercely independent and opposed to the making of orders, but it is apparent that her health and safety are at risk unless there is reliable provision of regular in-home services, given the initial hospitalisation occurred after she had been immobile for a number of days, and this was not identified by any of the informal supports.

What are the views/wishes of BA?

BA is opposed to the making of orders and any finding of incapacity, as I am advised by BA herself and her legal representative.
However, in all of the circumstances I am satisfied that it is not in BA's best interests to apply those views and wishes in determining this application because BA's memory loss means that she has an inaccurate recollection of a number of the key events and lacks insight into her own vulnerability both financially and in terms of personal supports.

Who should be appointed?

The only possible appointment as guardian is the Public Advocate. Sadly, BA is estranged from her daughter FS, and although I believe FS has been seeking to act in BA's best interests, BA's profound opposition to FS's involvement in her life (which included not notifying FS of the details of R's funeral) means any such appointment could not work, even if FS were willing.
L lives in New Zealand, and in the hearing appeared to have an unrealistic understanding of BA's level of function and vulnerability. The issue of unrealistic assessment of BA's capacity is also a bar to the current appointment of any of the neighbours present at the hearing.
Due to these factors, I did not canvass whether any of the parties proposed themselves for appointment. The investigator from the Public Advocate concurred that an independent appointment was the only option in the circumstances of the case.

Scope of order

The guardian currently only needs to make service provision decisions for BA, and to be able to exchange information with treating professionals. Dr A expressed the view that BA could still make her own treatment decisions (and as her ongoing treating GP I prefer her opinion on this issue to the specialists), and it is very much hoped that with secure care arrangements in home, there will be no need for any decisions in the next few years regarding any change in accommodation.

Period of order

I am required to specify a period of time within which a review of the orders must be made. The maximum time period allowed by the GA Act is 5 years. In this case I consider that it is in BA's best interests to review these orders within 2 years. Given BA is opposed to orders being made, and there are supportive people in her life who may be willing and potentially suitable for appointment once the acute phase of resolving the current issues is dealt with, reviewing the orders at that time will allow consideration of potential changes to the orders after things have settled.
For those reasons, on 3 September 2024, I made the following orders.

Orders

The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [BA] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)incapable of looking after her own health and safety;
(c)unable to make reasonable judgments in respect of matters relating to her person;
(d)in need of oversight, care or control in the interests of her own health and safety; and
(e)in need of a guardian.

Administration
2.The Tribunal notes that although an Administration Order could be made, the enduring power of attorney made on 13 May 1996 exists as a less restrictive alternative by which all financial decision making for [BA] can occur and this is now the mechanism by which it should.

Guardianship
3.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 determine the services to which the represented person should have access; and
(b)to provide information to and receive information from any treating health professional of the represented person.

4.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.
5.The guardianship order is to be reviewed by 3 September 2026.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
20 SEPTEMBER 2024