BB and LG
[2008] WASAT 234
•9 OCTOBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BB and LG [2008] WASAT 234
MEMBER: MS D DEAN (MEMBER)
MS M JORDAN (SENIOR SESSIONAL MEMBER)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)
HEARD: 5 AUGUST 2008
DELIVERED : 9 OCTOBER 2008
FILE NO/S: GAA 1423 of 2008
GAA 1424 of 2008
GAA 1425 of 2008
BETWEEN: BB
Applicant
AND
LG
Represented Person
Catchwords:
Guardianship and administration - Capacity to make reasonable judgments - Need for a guardian - Need for an administrator - Application to revoke or vary terms of enduring power of attorney - Conflict between daughter and husband of represented person - Need for an independent decision maker
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 44, s 51, s 64, s 70, s 109, s 119
Interpretation Act 1984 (WA), s 13A
Result:
The Public Trustee appointed plenary administrator
The enduring power of attorney executed in or about July 2007 be revoked
The power of attorney executed 10 August 2007 be revoked
The power of attorney executed 16 January 2008 be revoked
DM the sister of LG be appointed guardian to make medical treatment decisions
The appointments of guardian and administrator to be reviewed in two years
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented Person : Self-represented
Solicitors:
Applicant: Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
LG is a widow with three daughters and a son. Prior to his death, LG's husband executed a new will leaving his entire estate to their three daughters, with nothing to LG or their son JG. Consideration was being given as to whether an application to contest the will should be made on behalf of LG.
In 2007 and 2008 LG executed three enduring powers of attorney. In the first she appointed her sister DM donee, in the second she appointed her daughter BB donee and in the third she appointed her son JG donee. BB, a beneficiary of LG’s husband's will, and JG have a highly conflictual relationship resulting in no direct communication between them.
BB made applications to the Tribunal for both guardianship and administration orders. Both BB and JG nominated themselves in both roles.
The Tribunal found, based on evidence of their actions while acting as donees and the possible conflict of interests in relation to LG’s husband's will, that it was not in LG's best interests to have either BB or JG appointed as either guardian or administrator. The Tribunal considered that her interests were best served by the appointment of the Public Trustee, an administrator independent of the family.
The Tribunal found that it was in LG's best interests to have her sister, with whom she has a close and supportive relationship and who has good relationships with all family members, to be appointed limited guardian to make medical treatment decisions. Other decisions such as accommodation had been made appropriately by family members and appeared to be operating in LG's best interests.
The Tribunal revoked all three enduring powers of attorney and made both the guardianship and administration orders reviewable in two years time. Decisions as to a claim against LG's husband's will should have been made in that time and family relationships may have recovered to the point where a family appointed administrator may be appropriately considered.
Background
LG is a widow with three daughters and a son. She lives in a supported care facility. Prior to his death in November 2007, LG's husband AG also resided at the same care facility. Prior to them moving into supported accommodation LG and AG sold their family home and, allegedly, agreed to split their assets in half and to open separate bank accounts. AG executed a new will making BB and her sisters joint executors and BB a major beneficiary leaving nothing to his wife, LG, or their son JG.
On 10 August 2007 LG executed an enduring power of attorney (EPA) appointing BB her attorney. BB managed LG's financial affairs as attorney until LG executed a new EPA in favour of her son JG on 16 January 2008 and revoked the previous EPA.
BB made applications to the Tribunal for the appointment of a guardian and an administrator proposing herself in both roles. In addition she made an application to the Tribunal for revocation of the EPA executed by LG in favour of her son JG on the basis that LG did not have the capacity at the time to execute such a document.
Evidence provided to the Tribunal prior to the hearing
In addition to the written applications and submissions from parties the following documents were provided to the Tribunal prior to the hearing:
•A copy of an Aged Care Client Record (ACCR) completed on 2 September 2005 in which LG was found to regularly exhibit short term memory problems and occasionally to exhibit long term memory problems. She was approved for low level residential care.
•A copy of the EPA and acceptance dated 10 August 2007 by which LG appointed her daughter BB to be her attorney.
•A copy of the EPA and acceptance dated 16 January 2008 by which LG appointed her son JG to be her attorney. This document is signed with a cross. Attached is a copy of a revocation dated 23 January 2008 of the EPA appointing BB as LG's attorney also signed with a cross.
•A copy of a letter dated 22 January 2008 from Dr U reporting that he has assessed LG as having 'the mental capacity to execute a will and an Enduring Power of Attorney [sic]'.
•A copy of a letter dated 24 February 2008 from Dr W, general practitioner, to solicitors representing BB. In this letter Dr W reported that LG was assessed by way of a Mini Mental State Exam (MMSE) on 23 September 2005 with a score of 15 out of 30 as having 'significant cognitive impairment'. Her score on 6 December 2005 in a Cognitive Skills Assessment was 13 out of 21 'indicating moderately severe impairment of functional skills and new information processing'. In summary Dr W stated 'throughout 2007 [LG] was legally incompetent in respect of her mental capacity to execute an Enduring Power of Attorney [sic]'.
•A report from DM, care manager, dated 19 May 2008 in which she refers to a supportive family including a sister who visits regularly and a son JG who, since the death of JG's husband, visits regularly. DM states that LG has dementia, does not appear confused but finds it difficult to follow instructions. She has 'comprehension deficit and location deficit'. She 'would not be safe making financial decisions'. In DM's opinion the represented person needs 'someone to act on her behalf to manage her affairs'.
Hearing
The hearing was attended by LG (the represented person), BB (the daughter), CB (the solicitor representing BB), a representative of the Public Advocate (OPA), DM (LG’s sister), JG (the son), VD (the solicitor representing JG) and other family members.
LG's views and wishes expressed to the Tribunal
At the commencement of the hearing the Tribunal and OPA spoke with LG alone. During this discussion LG advised that, although not critical of her daughter's management of her finances, she trusts her son and wants him to manage her finances and generally 'act' for her. She was reluctant to provide details, but said that there had been some problems in the family that resulted in her not seeing much of her son JG for some time. This had resolved itself and she is now seeing him on a regular basis. This was confirmed in both written information provided to the Tribunal and evidence provided by other parties in the hearing.
LG denied any knowledge of the alleged plan to sell the family home and to split the proceeds between herself and her husband. She said that in the past she and her husband had always drawn up their wills together and she was 'very cross' when she found out that her husband had made a new will making their daughter BB a beneficiary and leaving her nothing.
Several times during the hearing, in front of the other parties, LG repeated her wish to have her son JG continue to manage her affairs for her. She said she has complete faith and trust in him.
Application to intervene in an EPA and application for administration
There was lengthy discussion in relation to the EPAs executed by LG, particularly in relation to whether she had the capacity at the time of execution.
The Tribunal was advised that, in or around July 2007, LG executed an EPA appointing her sister DM attorney (first EPA). The Tribunal did not receive a copy of this document and it is not clear whether it was ever revoked by LG. On 10 August 2007, LG executed an EPA appointing her daughter, BB, her attorney (second EPA) and on 16 January 2008 she appointed her son, JG, her attorney (third EPA).
After the execution of the third EPA and at the request of JG, Dr U provided a written report dated 22 January 2008 in which he said he had not seen LG since 2005 but, 'based on the entry in the records of Dr G on 15/1/08 [sic]' LG has the capacity to execute both a will and an EPA. On 23 January 2008 LG revoked the EPA appointing BB. Both the revocation and the third EPA were not signed by LG but marked with a cross.
In addition to the report from Dr U the Tribunal has before it a number of other medical reports concerning LG's capacity to make decisions. The reports, particularly from Dr W who states LG was 'legally incompetent' in 2007, give rise to questions as to her capacity over the past few years, in particular in July and August 2007 when she executed EPA's in favour of her sister DM and subsequently her daughter, BB. Similarly questions must also arise as to LG's capacity in January 2008 to execute an EPA in favour of her son JG.
Although parties argued that LG had the capacity to execute the aforesaid documents at the time of execution it was agreed by all parties at the hearing that LG no longer has the capacity to make reasonable judgements in relation to her financial affairs and is no longer capable of executing an EPA.
JG proposed, through his solicitor, that if the Tribunal's decision is to revoke the EPA executed in his favour he, as nominated by LG, wishes take on the role of administrator.
BB, through her solicitor, proposed that she be appointed both administrator and guardian on the basis that she appropriately managed LG's finances from 10 August 2007 until the execution of the third EPA in favour of JG. Through his solicitor JG argued against the appointment of BB as administrator on the basis of a conflict of interest which he says arises because she is a major beneficiary and joint executor of the will of LG's husband. He proposed that this would put BB in a clear conflict of interest in relation to any decision to make application on LG's behalf to contest the terms of the will.
There was considerable discussion about the alleged refusal of BB (after being notified that the EPA under which she had been acting was revoked) to disclose to JG, the donee of the third EPA, information and documents considered relevant to the management of LG's estate. BB advised the Tribunal that, in consultation with LG, she decided to supply only those documents she considered relevant to her operation of the EPA and this did not include documents (which had been requested) in relation to the sale of the family home as she was not the donee at the time of the sale of the house in 2006.
DM, the sister, provided evidence that LG was disillusioned and unhappy with BB's management of her affairs because 'she wouldn't tell her anything about the will' (T:50) and other things. LG told DM she wanted her son to take over management of her estate. BB and her husband said that LG has a habit of changing her mind about such things and had told them she had made a mistake in nominating JG and wanted BB to continue managing her estate. LG confirmed that she has changed her mind on occasions about whom she wishes to manage her affairs but said she now feels strongly that she wants her son to do so because 'he is my rock' (T:53).
Both LG and BB, through their solicitors, agreed that it may be appropriate to appoint an independent administrator to manage that part of the estate associated with a possible claim against the estate of LG's late husband. This, in their view, would circumvent any possible conflict of interest.
The Tribunal had evidence before it of the payment of solicitors' accounts out of LG's funds with no clear indication that this was for legal work sought by or carried out on behalf of LG. The Tribunal explored with JG the payment of these accounts which, he advised were in relation to LG's husband's will and a possible claim against his estate. JG said that his interests and those of LG were joint hence, in his view, all work done, despite whether in his name or LG's, was for their joint benefit. JG had initially instructed solicitor A, and a payment to them had been made from LG's bank account. Subsequently JG instructed solicitor B and received a partial refund of fees from solicitor A which JG paid into his own bank account. Later JG paid $3,000 from LG's estate and $3,000 of his own money to solicitor B for work in relation to the will. When asked why the caveat lodged in relation to the will was in his name rather than LG's name he explained that 'the caveat was lodged in my name so it wasn't in her name purely so she wasn't harassed when she was lodging a caveat on the estate' (T:62).
BB's solicitor advised that BB has always acted in a proper manner and in the best interests of LG when acting as attorney as evidenced by the record of accounts provided to the Tribunal. He said that BB should be appointed administrator so she could continue to manage LG's estate.
Application for Guardianship
In relation to LG's capacity to make personal decisions different views were expressed by parties.
JG, through his solicitor, advised that, in his view, LG 'has capacity to look after herself or to look after important decisions that she is supposed to make in relation to accommodation, for example, or some medical issues' (T:14). On the other hand DM, LG's sister, said that she feels there is a need for someone to take responsibility for making medical treatment decisions for LG whom she believes is not able to weigh up the consequences of her decisions or to act on them.
The Tribunal heard evidence that LG's memory problems are such that she does not remember when, or whether, she has taken her medications and needs prompting and supervision in this regard.
BB, through her solicitor, advised that there is a need for a guardian and proposed that she should be appointed to make medical treatment and accommodation decisions. She said that LG had told her that she is not happy with her current accommodation and there was some indication that JG was considering moving her. JG, through his solicitor, advised that he has no intention of moving LG and that he now accepts that it is in LG's interest to remain in her current accommodation.
Although not convinced there is a need for a guardian, JG proposed himself, if a guardian is to be appointed. BB's solicitor advised that, given the conflictual relationship between JG and BB, appointing JG to the role of either guardian or administrator would not work if BB was the other appointee as it is important that administrators and guardians are able to work together in the best interests of the represented person. The level of animosity between BB and JG is such that they are unable to communicate directly and only communicate through their lawyers.
Given her positive relationships with all parties the Tribunal explored with DM, the sister of JG, her willingness and suitability to take on the role of guardian particularly in respect of making decisions about medical treatment. OPA supported the appointment of DM in this role. BB, through her solicitor advised that such an appointment, given DM's age (she is older than LG), would not be appropriate.
Legislation
The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act).
These principles are:
(2)(a)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.
(b)Every person shall be presumed to be capable of -
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c)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.
(d)A plenary guardian shall not be appointed under section 43(1) 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.
(e)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.
(f)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.
Section 43 of the GA Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
(1)…
(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 …
Section 44 of the GA Act provides for who may be appointed guardian:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible -
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
Section 64 of the GA Act provides for the appointment of an administrator. Section 64(1) relevantly provides:
(1)Subject to [s] 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under [s] 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 …
Section 51 and s 70 of the GA Act provide that a guardian and an administrator must act in the best interests of the represented person and in particular s 51(2)(g) and s 70(2)(g), provides that they act in such a manner as to maintain any supportive relationships. Section 51 states:
(1)Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible -
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
(3)Nothing in subsection (2)(a) shall be read as authorising a guardian to act contrary to the Legal Practice Act 2003.
Section 70 of the GA Act provides that:
(1)An administrator shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible -
(a)as an advocate for the represented person in relation to the estate;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from financial neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
(3)Nothing in subsection (2)(a) shall be read as authorising an administrator to act contrary to the Legal Practice Act 2003.
(4)Nothing in subsection (2) shall be read as restricting the functions of an administrator at common law or under any written law.
Section 109(1)(c) of the GA Act provides that, on the application of a person who has, in the opinion of the Tribunal a proper interest in the matter, the Tribunal may revoke or vary the terms of an EPA.
Section 119(3) of the GA Act relevantly provides a hierarchy of persons who are authorised to consent to medical and dental treatment for the person.
(3)For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons -
(a)a guardian of the person needing the treatment;
(b)the spouse or de facto partner of the person needing the treatment;
(c)a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;
(d)a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;
(e)any other person who maintains a close personal relationship with the person needing treatment; or
(f)a person prescribed in the regulations.
Findings and reasons
Capacity
The Tribunal is satisfied from the written medical and paramedical reports provided prior to the hearing and the evidence provided by the parties at the hearing that the presumption of capacity referred to in s 4(2) of the GA Act is rebutted.
LG suffers from dementia, and therefore has a mental disability for the purposes of s 64(1) of the GA Act. The Tribunal is satisfied that LG's cognitive disability impairs her ability to make reasonable judgments in respect of matters relating to any part of her estate. The Tribunal further finds that LG is incapable in the ways referred to in s 43(1) of the GA Act and therefore is a person in respect of whom both guardianship and administration orders can be made.
Need and best interests in relation to the applications
As set out in s 4(2) of the GA Act, the primary concern of the Tribunal is the best interests of the person. Further, the appointment of a guardian or an administrator requires the Tribunal to find there is a need for an order and that the needs of the person cannot be met by any means less restrictive of the person's freedom of decision and action.
In this case the Tribunal heard evidence in relation to the quality of the relationship between the various family members and of particular relevance is the long standing conflict between BB and JG both of whom proposed themselves in the roles of guardian and administrator. The Tribunal finds that the significant conflict between BB and JG makes the appointment of one or the other in either role questionable. The GA Act provides that an appointed guardian and or administrator must act in such a way as to maintain any supportive relationships the represented person has. The Tribunal is not convinced from the evidence before it that the appointment of either BB or JG would not compromise one or other of those relationships.
The Tribunal accepts the evidence provided by DM that LG was not happy with the way BB managed her estate not because of any allegation of mismanagement but more because BB's style was to exclude LG from any involvement in, or information about, decisions being made on her behalf. This goes against the spirit of the GA Act which specifically refers to, as far as practicable, consultation with and inclusion of the person in decisions relevant to them.
The Tribunal finds that the manner in which JG contracted the services of the legal profession, allegedly on behalf of LG, whose interests he says are the same as his, are of concern. Even in his evidence provided to the Tribunal, JG indicated a lack of understanding about the need for clarity and separation of his needs and finances from LG. The Tribunal is not convinced that JG was solely motivated by LG's best interests in this regard.
The Tribunal finds, on the evidence before it, that the needs and best interests of LG are best met by the appointment of an administrator, independent of the family. Although there was some discussion about the possibility of the appointment of an independent administrator with authority only in relation to making decisions about a possible claim against LG's husband's estate, the Tribunal is of the view that this would not be adequate to ensure the best outcomes for LG. The Tribunal finds that it is in LG's best interests that an administrator with plenary powers and independent of the family be appointed.
The Tribunal finds that all lifestyle decisions other than medical treatment decisions have been and are being made in LG's best interests without the need for a formally appointed guardian. SR, the eldest child of LG, under s 119 of the GA Act is authorised to make medical treatment decisions but is not able to take on this role for health reasons resulting in the need for a guardian to be appointed with that function.
In considering whom to appoint to the role of guardian the Tribunal again looked at the relationship between JG and BB and for the reasons outlined above, particularly in relation to the maintenance of supportive relationships, finds that it is not in LG's best interests to have either BB or JG appointed to the role of medical decision maker. The Tribunal finds that DM, the sister with whom LG has always had a close and supportive relationship, is both suitable and willing to take on this role and therefore is suitable to be appointed guardian for the purpose of making decisions in relation to LG's medical and dental treatment.
Wishes of the represented person
While the Tribunal endeavours to take into account, where appropriate, the wishes of the represented person, it is not always possible to do so. In this case LG, the represented person, attended the hearing and indicated a strong wish to have her son JG appointed both guardian and administrator. The Tribunal was provided with evidence from both LG and family members that she has, in the past changed her mind about such matters. The Tribunal finds that the execution of the three EPA's are an indication of this tendency to change her mind, particularly under the influence of others. The Tribunal finds that, while being mindful of her wishes, for the reasons outlined above, it is not in LG's best interests at this time to have JG appointed in the roles of either guardian or administrator.
Orders
After taking into account the evidence before it the Tribunal made the following orders:
Administration order:
1.The Public Trustee be appointed plenary administrator.
2.The enduring power of attorney executed in or about July 2007 be revoked.
3.The enduring power of attorney dated 10 August 2007 be revoked.
4.The enduring power of attorney dated 16 January 2008 be revoked.
Guardianship order:
1.DM be appointed limited guardian to consent to any treatment or health care.
These appointments are to be reviewed in two years.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER
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