BZP and FP
[2012] WASAT 204
•11 OCTOBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BZP and FP [2012] WASAT 204
MEMBER: MS S GILLETT (MEMBER)
HEARD: 30 MARCH 2012
DELIVERED : 11 OCTOBER 2012
FILE NO/S: GAA 148 of 2012
GAA 149 of 2012
GAA 150 of 2012
BETWEEN: BZP
Applicant
AND
FP
Represented Person
Catchwords:
Guardianship and administration Application for the appointment of a guardian and administrator Guardianship Administration Revocation of an enduring power of attorney Appointment of family member as administrator not suitable due to conflict of interest Gifts from the estate Public Trustee appointed plenary administrator Family member appointed guardian Wishes of proposed represented person
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43(1), s 44(1), s 44(2), s 64(1), s 68(1), s 68(3), s 109(1)(c), s 109(2), s 110ZD(3), Pt 9
State Administrative Tribunal Act 2004 (WA), s 78
Result:
Public Trustee appointed plenary administrator
Family member appointed limited guardian
Enduring power of attorney revoked
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented Person : No Appearance
Solicitors:
Applicant: N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
FP is an elderly man with dementia who lives alone in the community. One of his grandsons, BP, assisted FP for many years until another grandson, SP, recently took over as his primary carer. The applicant, BP, sought orders that his brother, SP, be appointed guardian and administrator for FP and that an enduring power of attorney, by which FP appointed BP his attorney, be revoked.
The applications were precipitated by an altercation between the applicant and his grandfather. Immediately after the altercation, the applicant ceased providing FP with assistance in respect to his personal care and financial matters, and the applicant's brother, SP, took over the provision of this support. Although there was a history of limited contact between FP and his two sons and other grandson, and a history of estrangement between the applicant and his father and brothers, all family members were in agreement that the enduring power of attorney should be revoked and that the present care arrangements for FP were both in accord with his personal wishes and in his best interests.
The Tribunal found, on the evidence of both FP's general practitioner and the provider of home care services, that he was unable, by reason of dementia, to make reasonable judgments about his estate, that he was in need of oversight, care or control in the interest of his own health and safety, and that he needed someone with lawful authority to act on his behalf in respect to his estate and in respect to decisions concerning treatment and accommodation. The Tribunal accepted, on the evidence of family members and the Public Advocate, that FP's wish was for his grandson, SP, to act on his behalf in respect to both his estate and personal and lifestyle decisions. Although SP was willing to be appointed administrator and his appointment was supported by other family members, the Tribunal was not satisfied that it was in FP's best interests for SP to manage his estate at the present time. Substantial funds had recently been transferred from FP's estate to SP and BP in circumstances in which FP's understanding of the transactions and his capacity to make informed decisions were in doubt. BP and SP each maintained these transactions reflected FP's longstanding wishes.
Some years prior to the applications being lodged, FP transferred his home to his grandson, BP, for no financial consideration. BP maintained that his grandfather retained a life interest in the property; however, this was not reflected in any documentation. The Tribunal found that there was a need for an independent administrator to investigate the recent transfer of funds to SP and BP, and to consider whether these transactions should be set aside, and to take appropriate action to secure FP’s life interest in the property. A family member could not be appointed because of the conflict of interest in respect to gifts made from the estate.
The Tribunal appointed the Public Trustee plenary administrator, and directed that an investigation be undertaken in respect to the transfer of funds and consideration be given to the appropriate action to secure FP's life interest in the property. The enduring power of attorney was revoked consistent with the wishes of FP and his family.
The order provided for review in 12 months, after which time the conflict of interest may no longer arise in respect to SP and he may be suitable to act as administrator.
The Tribunal found a need for a guardian to make decisions on FP's behalf concerning where he was to live and his health care. On being satisfied that SP would act in his grandfather's best interests and that he was suitable to act as guardian, the Tribunal appointed SP limited guardian for treatment and accommodation decisions.
Background
FP is a 91yearold Polishborn man with dementia who lives alone in his home with assistance from care providers and the support of family. He has two sons, Z and J, with whom he has limited contact, and three grandsons, BP, SP and JP, all of whom are parties to these proceedings.
The applicant, BP, undertook the role of primary carer for FP for many years, until an altercation between BP and his grandfather in December 2011 resulted in the termination of this arrangement. Since the altercation, SP has undertaken the role of primary carer. The applications lodged by BP in January 2012 seek:
i)an order revoking the enduring power of attorney (EPA) made by FP on 23 March 2007, by which he appointed BP his sole attorney; and
ii)orders appointing SP guardian and administrator for FP.
The hearing on 30 March 2012 was attended by FP's two sons, Z and J, his three grandsons, BP, SP and JP, and by a representative of the Public Advocate. Brief oral reasons were delivered at the conclusion of the hearing on 30 March 2012. These written reasons are provided at the request of the Public Trustee pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).
The issues
The issues for determination by the Tribunal are:
1)Whether the EPA made by FP on 23 March 2007 should be revoked.
2)Whether FP is unable, by reason of mental disability, to make reasonable judgments about all or part of his estate.
3)If so, whether FP is in need of an administrator.
4)If FP is in need of an administrator, who should be appointed in that role.
5)Whether FP is a person for whom a guardian may be appointed.
6)Whether FP is in need of a guardian.
7)If so, who should be appointed.
The legislation
The Tribunal has jurisdiction by virtue of the Guardianship and Administration Act 1990 (WA) (GA Act) to make orders concerning the appointment of administrators and guardians and certain orders concerning EPAs.
Orders concerning EPAs
By s 109(1)(c), the Tribunal may revoke an EPA. The donee of an EPA may apply to the Tribunal for such an order: [s 109(2)].
Appointment of administrators and guardians
The Tribunal may appoint an administrator for a person who it is satisfied is unable, by reason of mental disability, to make reasonable judgments about all or part of his estate and is in need of an administrator: [s 64(1)].
Section 43(1) provides that the Tribunal may appoint a guardian for a person who it is satisfied is:
i)incapable of looking after his own health or safety;
ii)unable to make reasonable judgments in respect of his person;
iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
iv)in need of a guardian.
Who may be appointed an administrator?
An administrator shall be someone who, in the opinion of the Tribunal, will act in the best interests of the person in respect of whom an application is made, and who is otherwise suitable to act in that position: [s 68(1)].
For the purposes of determining whether a person is suitable to be appointed administrator, the Tribunal shall take into account, as far as possible, the compatibility of the proposed appointee with the person concerned and with the guardian of that person, the wishes of the person concerned, and whether the proposed administrator will be able to perform the functions vested in them: [s 68(3)].
Who may be appointed a guardian?
A guardian shall be someone who, in the opinion of the Tribunal, will act in the best interests of the person concerned, who is not in a position in which his interests conflict or may conflict with the interests of that person, and who is otherwise suitable to act as guardian: [s 44(1)].
For the purposes of determining whether a person is suitable to be appointed guardian, the Tribunal shall take into account, as far as possible, the desirability of preserving existing relationships within the family of the person concerned, the compatibility of the proposed appointee with the person concerned and with the administrator of their estate, the wishes of the person concerned, and whether the proposed guardian will be able to perform the functions vested in them: [s 44(2)].
Principles to be observed
In dealing with proceedings under the GA Act, the Tribunal must observe the principles set out in s 4(2); as they apply here, those principles are:
i)the Tribunal's main concern must be FP's best interests;
ii)FP is presumed capable of looking after his own health and safety, or making reasonable judgments in respect of his person, or managing his own affairs and making reasonable judgments in respect of matters concerning his estate until the contrary is proven to the satisfaction of the Tribunal;
iii)a guardianship or administration order shall not be made if FP's needs could be met by other means less restrictive of his freedom of decision and action;
iv)a plenary guardian shall not be appointed if a limited appointment would be sufficient to meet FP's needs;
v)any order must be in terms that impose the least restrictions possible in the circumstances; and
vi)the Tribunal must seek to ascertain, as far as possible, FP's views and wishes as expressed, in whatever manner, from time to time or as gathered from his previous actions.
The EPA
FP executed an EPA on 23 March 2007 appointing BP his sole attorney. The EPA, said by BP to have been drafted by one of the two solicitors who witnessed the document, is not registered with Landgate. The Tribunal notes that the EPA contains conflicting clauses on the appointment page and the acceptance page as to the date on which it comes into force; however, the application is not made on this basis. BP seeks revocation of the EPA on the basis that FP no longer wants him to act on his behalf and BP no longer wishes to act in this capacity. All parties at the hearing supported the revocation of the EPA. The Public Advocate's representative confirmed that FP's wishes, as expressed to her, were that he does not want anyone but SP to look after his finances. The Tribunal is satisfied in the above circumstances that it is appropriate that the EPA be revoked.
Whether FP is a person for whom a guardian or an administrator may be appointed
Written evidence was received in the form of a completed doctor's guide from FP's general practitioner, Dr K, dated January 2012. This sets out that Dr K has known FP for approximately four years and that FP has Alzheimer's disease, first diagnosed in January 2009. Dr K considers FP to be incapable of making reasonable decisions in both personal and financial spheres. BP provided the Tribunal with a copy of a letter concerning FP dated May 2007 from Dr K, which states, in part:
I have known [FP] since April 2005.
For his age of 86 years [FP] is in good physical health. …
There does not appear to be any physical or mental incapacity.
He is capable of making a Will as he knows what assets he has and knows how he wants to disperse of these in his Will.
The coordinator of home care services for FP provided a written report and a copy of the progress notes made contemporaneously from when FP was first seen by the service in October 2010 until just prior to the hearing. At the time of referral, the progress notes record 'some cognitive impairment 19/30 on recent MMSE'.
An assessment by the Aged Care Assessment Team (ACAT) at Royal Perth Hospital, just prior to the referral to the above home care service, notes that FP has some short-term memory problems and lacks insight into his care needs.
Whilst acknowledging FP's ability to express his wishes, his family members are in agreement that he requires assistance and oversight in managing his affairs. The applicant acknowledges that medical staff from a number of different hospitals have raised concerns with him as to FP's cognitive functioning over the past couple of years. The Public Advocate's representative is of the view that FP is a person for whom both guardianship and administration orders may be made.
Findings regarding capacity
The Tribunal is satisfied on the basis of reports from FP's general practitioner, the coordinator of home care services and the Public Advocate's representative, and taking into account the views of his family, that FP is no longer able, by reason of dementia, to make reasonable judgments about his estate and that he is in need of oversight, care or control in the interests of his own health and safety. Thus, the presumption of capacity is displaced and the Tribunal finds that FP is a person for whom a guardian and an administrator may be appointed.
Whether FP is in need of an administrator
FP's estate
FP's income comprises an Australian age pension and a pension from Germany. He has around $50,000 in his bank account as at the date of hearing. FP has lived in his home for many years, the title of which was transferred to BP in 2008. He lives frugally, but is said to have been generous with financial assistance to family members. It is not disputed that up until December 2011, when BP had an altercation with his grandfather, BP withdrew funds, usually around $400, on a monthly basis from FP's account to pay his bills and to meet his living expenses. Since this time, SP has assisted FP with his financial affairs.
Gifts from FP's estate
BP says that he first provided the EPA to FP's bank in late 2011; however, his grandfather made him signatory on his account about three years earlier. BP says that although he withdrew funds from the bank and paid accounts, FP made all decisions regarding his finances. In late 2011, the bank refused to allow BP to withdraw the sum of $70,000 simply as signatory on the account, and BP says that as FP was unable to go to the bank, he had provided the EPA to the bank. BP maintains that FP informed him when he was in hospital in 2011, that he wished to make cash gifts to him and to SP. He says that FP had previously expressed this wish over a number of years, but that in 2011 he 'kept pestering' him about it and BP gained the impression that his grandfather wanted to make the gift while 'he was still alive'.
BP maintains that he and SP met with FP and it was agreed that they would each be given the sum of $70,000. SP maintains that his grandfather had, for some years, wished to help him and his wife out with their home loan and that he had declined these offers of assistance until late 2011, when FP again expressed this wish and had referred to BP having his house. SP says he then accompanied his grandfather to the bank and accepted the gift of $70,000, which was drawn as a bank cheque. BP says that he sought legal advice as to whether his role as attorney would be compromised as a result of the gifting by his grandfather and he was informed that it was 'perfectly legal' if the donee has capacity and knows what their assets are, what they wish to do and why. BP did not receive any written legal advice and he confirms that no medical assessment as to his grandfather's capacity was sought at that time. FP reported to the Public Advocate's representative that he had given $70,000 to SP to help pay off his mortgage, but indicated that he had not given any money to BP.
Transfer of property
BP says his grandfather's property was gifted to him in 2008. He maintains that FP wanted to transfer the property as he was concerned that 'there might be a challenge after his passing'. BP says the property was gifted to him on the basis that FP 'was able to live there for the rest of his life'. The transfer of land document, dated 21 August 2008, shows the transfer was made 'for natural love and affection'; however, FP's life interest in the property is not documented. BP says that since the property was transferred into his name he has paid all the rates and outgoings on the property. SP says that in late 2011, his grandfather referred to BP having his house, and SP says that he had 'known my whole life that that's what [FP] wanted to do'.
Notwithstanding the assurances given by BP that he understood that his grandfather had a life interest in the property, the Tribunal notes that the home care service provider's progress notes record SP's concern, following the altercation in late 2011, that BP was threatening to evict his grandfather. FP reported to the Public Advocate's representative that he owned his home and, on being asked if he had signed the house over to BP, FP indicated that he did not know and that his 'head doesn't work properly'.
Findings regarding need
All of FP's family members are of the view that he requires someone with formal authority to manage his financial affairs. The Public Advocate's representative concurs with this view and expresses concern as to FP's purported wish to gift additional funds from his remaining estate. In addition to the management of FP's pension and living expenses, it is submitted by the Public Advocate's representative that there is a need for an administrator to investigate the legality of the house transfer and the gifts of $70,000. Given that the EPA is no longer an appropriate vehicle for managing FP's financial affairs, the Tribunal is satisfied that a need exists for the appointment of an administrator of FP's estate. In addition to ensuring FP's income is properly applied to meet his living expenses, the Tribunal finds that there is a need for an administrator to investigate the 'gifting' of $70,000 to both SP and BP in late 2011, and to consider whether these transactions should be set aside.
In respect to the transfer of FP's property to his grandson, BP, in 2008, the Public Advocate's representative, in her written report to the Tribunal, suggested that an independent administrator was needed to investigate 'the legality of the house transfer'. Having considered all of the material before it, including the transfer of land document signed by FP and Dr K's letter of May 2007, the Tribunal finds that there is nothing to displace the presumption that FP was capable of making this gift in 2008. However, while it is not disputed by the parties that FP has a life interest in the property, this is not formally recorded, and the Tribunal finds there is a need for an administrator to address this anomaly.
Who should be appointed?
SP proposes that he be appointed administrator, and his appointment is supported by the applicant, BP, and by other family members. The Public Advocate's representative reports that it is FP's wish that his grandson, SP, look after his financial affairs. Given the finding that there is a need for an administrator to investigate the 'gifting' to SP and BP, it is evident that SP is not suitable to be appointed as administrator due to the conflict of interest that arises. The Tribunal determines there is a need for an independent administrator. Accordingly, the Public Trustee will be appointed plenary administrator. The administration order will be reviewed in 12 months, after which time the conflict of interest may no longer arise in respect to SP and he may be suitable for appointment as administrator.
Whether FP is in need of a guardian and if so, who should be appointed
BP seeks, in his written application, the appointment of a guardian to make decisions for FP about his accommodation, medical treatment and contact with others. At the hearing, BP said that no need exists for decisions to be made on FP's behalf about contact. Other family members and the Public Advocate's representative agree.
FP's wish to remain living in his home is clearly articulated by all parties and there is no dispute that FP's needs are currently adequately met in his home with the support of family and the home care support services. Both BP and SP express some concern that the time may arise when FP's needs are not able to be properly met at home and that someone other than FP will be needed to make this decision. The Public Advocate's representative submits that there is no need for a guardianship order, as the present informal arrangements are working in FP's interest.
The Tribunal is satisfied that there is no immediate need for a decision to be made about FP's accommodation. However, the Tribunal finds that FP would not be able to determine when, if the time does arise, the current living arrangements no longer meet his needs and that other living arrangements need to be made, and further, that FP is likely to be opposed to any such move. Given this finding, the Tribunal is satisfied that there is a need for a guardian to be appointed for this purpose.
It is not in dispute that FP needs someone to make treatment decisions on his behalf. There is no dispute that SP, in his role as FP's primary carer, is the appropriate person to be making treatment decisions and it is FP's wish that he do so. The Public Advocate's representative submits that SP is able to act under Pt 9C of the GA Act and, consequently, that a guardianship order is not needed for this purpose.
Part 9C of the GA Act sets out a hierarchy of persons who may have the authority to make treatment decisions for a patient who is unable to make reasonable judgements about proposed treatment. Under these provisions, treatment decisions may be made in the absence of a guardianship order by the person who is the highest on the hierarchy and who is of full legal capacity, reasonably available and willing to make a treatment decision. FP's family members all agree that SP is the appropriate person to make treatment decisions, and this is in keeping with FP's expressed wishes. The hierarchy set out in s 110ZD(3), however, places FP's son, Z, higher than SP, subject to the requirement that he 'maintains a close personal relationship' with FP.
The Tribunal accepts that SP is the appropriate person to make personal and lifestyle decisions on FP's behalf, and considers that it is in FP's best interests for SP to be formally appointed his limited guardian to make both treatment decisions and decisions as to where FP is to live. SP's appointment with these decisionmaking authorities provides clarity to care providers and certainty in the event that family members have conflicting views in the future as to what may be in FP's best interests. A review of the guardianship order will be set in five years.
Orders
For the above reasons the Tribunal makes the following orders:
Guardianship
1.SP of [address deleted] is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily; and
(b)to consent to any treatment or health care of the represented person.
2.This order is to be reviewed by 30 March 2017.
Administration
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is to investigate:
(a)the circumstances of the transfer of monies from the represented person's bank account, in particular the amounts of $70,000 withdrawn from his account on 17 November 2011 and 2 December 2011, which were purported to be gifts to BP and SP;
(b)to consider whether the transactions should be set aside; and
(c)what steps need to be taken to secure the represented person's life interest or other such interest in the property at [address deleted].
3.The administrator is to take appropriate legal action deemed to be in the best interests of the represented person.
4.The enduring power of attorney made on 23 March 2007 by which [FP] appointed [BP] to act as his attorney is revoked.
5.This order is to be reviewed by 30 March 2013.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS S GILLETT, MEMBER
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