CC and DS
[2008] WASAT 292
•10 DECEMBER 2008
CC and DS [2008] WASAT 292
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 292 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1768/2008 | 22 SEPTEMBER 2008 | |
| Coram: | MS D DEAN (MEMBER) | 9/12/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | CC appointed limited guardian for five years to make decisions in relation to accommodation, services, medical and dental treatment The Public Trustee is appointed plenary administrator for five years The enduring power of attorney executed by DS on 14 February 2007 is revoked | ||
| B | |||
| PDF Version |
| Parties: | CC DS |
Catchwords: | Applications for guardianship and administration Need for a guardian Need for an administrator Application for revocation of enduring power of attorney executed by the represented person Allegations of misappropriation of represented person's monies Conflict about where the represented person should live |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 44, s 51, s 51(2)(g), s 64, s 64(1), s 68, s 68(3)(a), s 70, s 107(1), s 109(1)(c) |
Case References: | Nil |
Summary | DS is an elderly woman with advanced dementia. She has four adult children from her first marriage. She married for the second time approximately five years ago. Prior to moving into nursing home care she lived at home with her husband RS and daughter CC in CC's home. ,CC made an application to the Tribunal for a guardianship order and proposed herself as guardian. Evidence was provided at the hearing that there was a significant level of conflict between CC and RS who had formally separated from DS since her move into nursing home care. There was disagreement between CC and RS about the most suitable nursing home accommodation for DS. ,Although there was no overt disagreement about medical treatment it became apparent in the hearing that the medical treating team were not consulting or involving family in medical treatment decisions. ,All parties agreed that CC was the most appropriate person to take on the role of decisionmaker for DS in relation to her welfare and medical treatment. The Tribunal appointed CC limited guardian to make decisions in relation to medical treatment, accommodation and services to which DS may have access.,CC also made applications to the Tribunal for an administration order and for the Tribunal to revoke an enduring power of attorney executed by DS in which she appointed RS as her attorney. CC made the applications on the basis that she believed that RS was misusing his powers under the enduring power of attorney and proposed that she be appointed administrator of DS's estate.,Evidence was provided at the hearing that both CC and RS had inappropriately accessed DS's bank accounts and were both holding monies belonging to DS. The Tribunal found that the enduring power of attorney was not operating in DS's best interests and revoked it. Based on its finding that it was in DS's best interests to have an administrator independent of the family appointed, the Tribunal appointed the Public Trustee plenary administrator of DS's estate. ,Both the guardianship and administration orders were to run for five years. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : CC and DS [2008] WASAT 292 MEMBER : MS D DEAN (MEMBER) HEARD : 22 SEPTEMBER 2008 DELIVERED : 10 DECEMBER 2008 FILE NO/S : GAA 1768 of 2008 BETWEEN : CC
- Applicant
AND
DS
Represented Person
Catchwords:
Applications for guardianship and administration - Need for a guardian - Need for an administrator - Application for revocation of enduring power of attorney executed by the represented person - Allegations of misappropriation of represented person's monies - Conflict about where the represented person should live
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 44, s 51, s 51(2)(g), s 64, s 64(1), s 68, s 68(3)(a), s 70, s 107(1), s 109(1)(c)
(Page 2)
Result:
CC appointed limited guardian for five years to make decisions in relation to accommodation, services, medical and dental treatment
The Public Trustee is appointed plenary administrator for five years
The enduring power of attorney executed by DS on 14 February 2007 is revoked
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
(Page 3)
Summary of Tribunal's decision
1 DS is an elderly woman with advanced dementia. She has four adult children from her first marriage. She married for the second time approximately five years ago. Prior to moving into nursing home care she lived at home with her husband RS and daughter CC in CC's home.
2 CC made an application to the Tribunal for a guardianship order and proposed herself as guardian. Evidence was provided at the hearing that there was a significant level of conflict between CC and RS who had formally separated from DS since her move into nursing home care. There was disagreement between CC and RS about the most suitable nursing home accommodation for DS.
3 Although there was no overt disagreement about medical treatment it became apparent in the hearing that the medical treating team were not consulting or involving family in medical treatment decisions.
4 All parties agreed that CC was the most appropriate person to take on the role of decisionmaker for DS in relation to her welfare and medical treatment. The Tribunal appointed CC limited guardian to make decisions in relation to medical treatment, accommodation and services to which DS may have access.
5 CC also made applications to the Tribunal for an administration order and for the Tribunal to revoke an enduring power of attorney executed by DS in which she appointed RS as her attorney. CC made the applications on the basis that she believed that RS was misusing his powers under the enduring power of attorney and proposed that she be appointed administrator of DS's estate.
6 Evidence was provided at the hearing that both CC and RS had inappropriately accessed DS's bank accounts and were both holding monies belonging to DS. The Tribunal found that the enduring power of attorney was not operating in DS's best interests and revoked it. Based on its finding that it was in DS's best interests to have an administrator independent of the family appointed, the Tribunal appointed the Public Trustee plenary administrator of DS's estate.
7 Both the guardianship and administration orders were to run for five years.
(Page 4)
Background
8 DS is an elderly woman diagnosed with dementia. She has four adult children from her first marriage. She married her second husband RS approximately five years ago. On 14 June 2008 CC, daughter of DS, made applications to the Tribunal for guardianship and administration orders in respect of DS. At the same time CC applied to the Tribunal for revocation of an enduring power of attorney (EPA) executed by DS on 14 February 2007 in favour of her husband RS. CC alleged that RS was misusing his powers under the EPA.
9 These written reasons have been provided at the request of solicitors representing RS.
Evidence provided to the Tribunal prior to the hearing
10 In addition to the written applications, the following written information was provided to the Tribunal prior to the hearing:
• A submission from the local Aged Care Assessment Team (ACAT) which included a copy of a report in relation to a home visit on 8 November 2007 when DS scored 17 out of 30 on a mini mental state examination (MMSE) 'indicating time and place disorientation, poor concentration, short term memory loss, difficulty with multi step tasks and poor planning abilities'. She was approved at this time for low level residential/respite care. A further MMSE was conducted with DS on 5 February 2008 when she scored 24 out of 30 which was said to indicate time disorientation and shortterm memory loss. DS was approved at this time for dementia specific high level residential care.
• A copy of an EPA and acceptance executed by DS on 14 February 2007 in which she appointed RS as her attorney.
• Several submissions from RS including:
1) A copy of a letter from RS to CC dated 22 March 2008 in which he requests of CC 'a proper account of all monies rightfully belonging to your mother'.
- 2) A copy of a letter from RS to the Office of the Public Advocate in which he said he had closed a bank account in the name of DS and was holding $941.60 from that account to pay ongoing pharmaceutical and incidental expenses incurred by DS. RS also referred to $200 withdrawn from DS's bank account allegedly by DS when CC 'took [DS] to the bank and got her to not only sign the withdrawal form but also a form to allow the daughter [CC] to access the account'. RS subsequently had the authorisation cancelled. Also included were copies of DS's bank statements showing several withdrawals of large cash amounts prior to the account being closed in June 2008.
- • A submission from CC undated but received by the Tribunal on 15 September 2008 further outlining her concerns in relation to RS's management of DS's finances.
• A submission from CC undated but received by the Tribunal on 17 September 2008 including copies of correspondence from Centerlink and Jenny Macklin MP in relation to DS's Centrelink payments. Also included was a copy of a pharmacy account dated 31 January 2008 for $110, a bank statement in the name of CC, a copy of a record of expenditure in relation to DS and a copy of a letter from RS, acting under the EPA, to CC dated 15 September in which RS requested that all monies held by CC on behalf of DS be paid into DS's bank account.
• A report dated 18 September 2008 from SB, the manager of the Aged Care Facility where DS has resided since 18 December 2007. SB states that DS exhibits 'regular wandering behaviour'; both RS and CC visit regularly; RC provides money for any of DS's needs; another daughter has regular contact by telephone; 'conflict between husband and [CC] since admission'; DS is 'unable to make sound informed decisions' because of her dementia.
(Page 6)
- • A report dated 18 September 2008 from Dr G, treating GP for one year who last saw DS on 17 September 2008. Dr G states that DS has a diagnosis of dementia and is incapable of making reasonable judgments about any major aspect of her life or finances.
• A report from the Office of the Public Advocate dated 15 September 2008 in which the Public Advocate reports that prior to her admission to the aged care facility where she currently resides, DS and her husband RS lived with DS's daughter CC in her home. RS informed the Public Advocate that, although he is now formally separated from DS, he still visits her every two or three weeks but she does not recognise him. CC informed the Public Advocate of her concerns about DS's current residential arrangements and her belief that RS has not managed DS's financial affairs in her best interests.
The Hearing
11 The hearing was attended by RS the husband of DS, FM a son of DS, CC the daughter and applicant and a representative of the Public Advocate (OPA). DS did not attend the hearing.
12 The written report provided by the Public Advocate was tabled at the hearing to allow all parties an opportunity to read it.
13 All parties agreed that RS no longer has the capacity to make reasonable judgments for herself about her finances or her welfare and lifestyle.
Guardianship
14 Evidence was provided by both RS and CC that in October 2006, at CC's suggestion, DS had a neurological assessment which indicated that she was in the early stages of dementia. CC described the three years leading up to the dementia diagnosis when RS would ask CC to have DS stay with her for weeks at a time as she was 'driving him crazy and he was going to divorce her if [she] didn't'. (T:26) CC said she was aware that DS was developing dementia but could not convince RS of this and the need for him to make changes to accommodate DS and her dementia. CC expressed concern that RS spent long hours at work and was rarely home which she felt was unfair on DS who needed his care and support through this difficult period.
(Page 7)
15 RS advised that in 2007 DS was involved in a car accident resulting in hospitalisation. During this hospital admission, on 5 February 2008 a MMSE was conducted. DS's score of 24 out of 30 was said to indicate 'time disorientation and short-term memory loss'. RS said that on DS's discharge from hospital he engaged carers to help her with showering and he and DS moved from their previous home to live with CC in her home. This arrangement lasted a relatively short time before DS moved into nursing home care.
16 DS is currently accommodated in a nursing home which RS says is modern, provides good quality care and is geographically well placed to allow for visiting. CC disagrees and says she would like DS to be moved to a smaller facility closer to CC's home to facilitate easier access and visiting. RS said he does not agree with any move as the current accommodation is adequate and any move could be distressing for DS in her advanced stage of dementia.
17 Although in reasonable general health, DS is on a number of medications. It would appear from discussion at the hearing that the medical treating team have not been keeping RS informed or involved in medical treatment decisions and have changed medications without consultation with him or any other family member.
18 The Tribunal heard from CC and her brother FM that CC has always been the person in the family who has been closest to DS and has always had a close and supportive relationship with her. FM said he believes that CC is the person who should be making decisions for DS who can no longer make them for herself. All parties, including OPA and RS, agreed that CC is the person who should be making lifestyle decisions for CC.
Administration
19 In her application CC alleged that when RS ran his own business, for approximately three years, he notionally employed DS in this business. RS gave evidence that he had notionally employed DS on the advice of his accountant to minimise his tax. He said he paid her approximately $20,000 a year. RS said he gave up his business in April 2007 at which time DS commenced drawing a Centrelink pension. He said that he and DS had agreed that any monies from the employment arrangement should go back to him for his business or be used for joint holidays. He said they had
(Page 8)
- also agreed that she would pay the higher rate of tax on her wages as a means of forced saving.
20 For the 2006 2007 tax year DS received a tax refund of approximately $4,000. This money was paid into her bank account and was withdrawn by RS who advised the Tribunal that he saw this as his money and had withdrawn it for his own use. The Tribunal notes that in November 2007 (when the money was withdrawn) DS had been diagnosed with advanced dementia and it was not clear how much she would have understood in relation to any alleged agreements in relation to the money.
21 Conflicting evidence was provided by CC and RS in relation to the payment of accounts, particularly pharmacy accounts, when they came due. CC provided a copy of a pharmacy account she paid because she believed it was overdue. This account was incurred after DS moved into nursing home care in December 2007. CC said she took DS into the bank and withdrew the money to pay the pharmacy account from DS's bank account. RS explained that the pharmacy account in question was generated only two weeks after DS moved into the nursing home and prior to him arranging for payment of these accounts. To add to the confusion, subsequent pharmacy accounts did not get paid for a further three months as the pharmacy had been sending these to the wrong address. RS said that, on discovering this, he corrected the mistake and paid the accounts in full. No evidence was provided to suggest that pharmacy accounts had deliberately not been paid by RS. The Tribunal found the evidence in relation to the payment of pharmacy accounts, indicative of the inability of CC and RS to work together to make decisions in DS's best interests either now or in the future.
22 CC raised the issue of a joint mortgage she has with RS over her property. RS advised that because CC was not able to get a mortgage in her own name he had agreed to take out a joint mortgage with her. This allowed her to build a house on the block of land she owned and he was to be allowed to live on the property until his death. In the event that DS entered a nursing home CC was to build a cabin in which RS would reside. There is nothing in writing to this effect but RS and CC are registered on the title as joint tenants. Unexpectedly, DS entered the nursing home six weeks after they moved into the house.
23 CC gave evidence that at the time they entered into the mortgage arrangements, RS had agreed that when she could refinance the property in her name only he would be taken off the title. CC said that she is currently negotiating
(Page 9)
- with the bank to remortgage the property but they will not proceed while RS is on the title. She said he currently holds the title deed and will not hand it over to her.
24 It would appear that the breakdown in the relationship between CC and RS is a result of the impasse they now find themselves in, in relation to the second mortgage. Unfortunately, this is affecting decisions they may previously have been able to make together in relation to DS's care and finances.
25 RS advised that he has formally separated from DS and has notified Centrelink of this. He said, despite suggestions to the contrary, he is not in another relationship and currently has no plans to divorce DS. RS said, taking the separation into account, he has made necessary changes to his superannuation and his will. The Tribunal was not advised what these changes are.
26 RS advised that he has always operated the EPA in DS's best interests and intends to continue doing so. CC gave evidence that Centrelink had informed her that as nominee she had power over the EPA and could arrange to have DS's pension paid into a new account, which she did. She opened an account in her own name into which DS's pension is paid. The account was opened with the Bendigo Bank with a deposit of $50.40 which is part of the proceeds of the sale of DS's 'things' at 'the markets'. CC said there is approximately $600 left and she is holding this money in cash for DS.
27 CC said she arranged a direct debit from the new account to pay the nursing home accommodation fee but was not able to explain why she felt she needed to do this. RS said that prior to CC opening the new account, the nursing home accommodation fee had been paid by direct debit out of DS's previous bank account. It is not clear to the Tribunal why CC felt it necessary to change the arrangements that RS had put in place. There was no evidence provided to suggest that these arrangements had not been working.
28 In seeking to clarify information about the various bank accounts which had been held by DS, the Tribunal was informed by RS that he closed one of those accounts and continues to hold in cash $900 of DS's money withdrawn from that account.
29 In summing up, OPA expressed concern about the monies withdrawn from DS's bank account by RS; about the manner in which CC intervened in the management and control of DS's financial affairs; about the fact that CC had
(Page 10)
- redirected DS's Centrelink benefits to an account in her own name and the fact that both RS and CC are holding monies belonging to DS with no valid reason to do so. For these reasons OPA proposed that it was in DS's best interests that an administrator be appointed, that the administrator be someone independent of the family, that the administrator facilitate a proper investigation of what has occurred and ascertains the extent of DS's estate. OPA also expressed concerns about the operation of the EPA by RS.
Legislation
30 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).
31 These principles are:
(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) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(Page 11)
- (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.
32 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 …
(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.
34 Section 51 of the GA Act provides that a guardian must act in the best interests of the person and in particular (s 51(2)(g)) provides that a guardian must act in such a manner so as to maintain any supportive relationships the person has.
35 Section 64(1) of the GA Act empowers the Tribunal to appoint an administrator provided it has satisfied itself that the person:
(a) is unable, by reason of 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.
(Page 13)
36 Section 68 of the GA Act provides for who may be appointed administrator. The administrator must consent to act, must act in the best interests of the person and be otherwise suitable to act as administrator. Further, the Tribunal must take into account the compatibility of the proposed appointee with the person and the guardian, if any.
37 Section 70 of the GA Act provides that the administrator must act in the best interests of the represented person.
38 Section 107(1) outlines the obligations of a donee of an EPA:
(1) The donee of an enduring power of attorney
(a) shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure;
(b) shall keep and preserve accurate records and accounts of all dealings and transactions made under the power;
(c) subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and
(d) shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal.
Penalty applicable to paragraph (b): $2 000.
39 Section 109(1)(c) relevantly outlines the power of the Tribunal to intervene in an enduring power of attorney executed by a person.
Findings and Reasons
Capacity
40 Medical and paramedical evidence provided to the Tribunal is consistent with a diagnosis of dementia. It was agreed by all parties that DS's dementia has progressed to the point that she is no longer capable of making reasonable judgments in respect of her welfare needs and lifestyle. Similarly, because of her mental disability, DS is no longer able to make reasonable judgments in respect of her estate.
41 The Tribunal accepts the evidence before it and finds that DS satisfies the criteria set out in both s 43 and s 64 of the GA Act and is therefore a person for whom both guardianship and administration orders can be made.
(Page 14)
42 Having made a finding that the person is one for whom guardianship and administration orders can be made, the Tribunal must then address the issue of whether there is a need for a guardian and/or an administrator.
Need for a guardian
43 Currently, it would appear that there is confusion within the medical profession as to who has the authority to make medical decisions, apparently resulting in decisions being made without consultation with family members. The appointment of a guardian would ensure that it is clear to the medical treating team who has the authority to make medical treatment decisions.
44 The Tribunal finds that the differing views expressed by CC and RS in respect of the most suitable accommodation for DS indicates a need for a guardian to be appointed with the authority to make a decision as to where DS should live. Similarly, and somewhat dependent on the type of accommodation in which DS resides, decisions may need to be made about services to which DS may have access.
45 There was general agreement, even from RS, that CC has the closest relationship with DS and is the most appropriate person to take on the role of guardian.
46 The Tribunal considered the possible implications for the relationship between DS and RS if CC was appointed guardian but, after some discussion about the requirement for the guardian to act in the best interests of the represented person, the Tribunal was reassured by CC that she would act in a way that supported and did not sabotage the relationship between DS and RS.
Need for an administrator
47 The Tribunal heard evidence that RS had operated DS's bank account and over time had withdrawn monies which he considered to be his. It also heard evidence from RS that he has made changes to his will and superannuation since his formal separation from DS. It is not clear to the Tribunal whether these changes disadvantage DS in any way.
48 Evidence was provided that CC had accessed DS's bank account and withdrawn monies with which she opened an account in her own name and to which she had DS's pension redirected. She ignored the EPA appointing RS which was in force and by which RS had set up a direct debit to pay DS's accommodation fees. CC cancelled this arrangement, which appears to have been working, and with no formal authority set up alternative arrangements.
(Page 15)
49 Both RS and CC acknowledge holding cash of several hundred dollars belonging to DS.
50 The Tribunal found that both RS and CC appeared to be acting in their own, rather than DS's interests when they accessed her funds and held monies belonging to her without adequate reasons.
51 In relation to the joint mortgage over CC's property, it is not clear to the Tribunal what, if any claim DS may have in relation to this transaction. This may be appropriately investigated by an administrator of CC's estate.
Wishes and best interests
52 The Tribunal endeavours to take into account, where possible, the views and wishes of the person (DS) but the overarching principle guiding the Tribunal in its decisionmaking is the best interests of the person.
53 In this case, the Tribunal was unable to ascertain the wishes of DS because of the advanced stage of her dementia. The execution of an EPA would normally be an indication of the person's wishes in relation to the management of their finances, but in this case the couple have separated since DS executed an EPA in favour of RS and there is no way now of ascertaining DS's wishes given the changed circumstances in the marital relationship.
54 The Tribunal found the actions of CC in ignoring the EPA and taking control of DS's pension and bank account and transferring DS's money into a bank account in her own name, of concern and found the holding of monies by both RS and CC similarly concerning. Although there is no suggestion that either party intended to misappropriate DS's funds, nevertheless these actions were not necessarily in the best interests of DS.
55 Given the highly conflictual nature of the relationship between CC and RS, the fact that both gave evidence that the other had not acted in DS's best interests, and the highly questionable financial transactions each executed in relation to DS's estate, the Tribunal finds that it is not in DS's best interests that either be appointed to manage her money. With the appointment of CC as guardian, the appointment of RS would be doubly problematic given that the GA Act proscribes (s 68(3)(a)) that an administrator shall, as far as possible, be compatible with the guardian.
(Page 16)
56 The Tribunal finds that RS has not fulfilled his obligations as donee of the EPA and has not exercised his powers with reasonable diligence to protect the interests of DS. He did not act in DS's best interests in his use of the EPA by which he withdrew monies from her account for his own use.
Decision
Guardian
57 Taking all of the forgoing into account, the Tribunal finds that there is no less restrictive alternative to making a guardianship order and, in accordance with s 44 of the GA Act, on the evidence before it finds that CC will act in the best interests of DS, is not in a position where her interests conflict with the interests of DS and she is otherwise suitable to act as the guardian of DS. The Tribunal appointed CC limited guardian for DS with the authority to make decisions in relation to her accommodation, medical treatment and the services to which she may have access.
Administration
58 The Tribunal finds that there is a need for an administrator to be appointed. The Tribunal further finds that the administrator should be independent of the family. The Tribunal appointed the Public Trustee plenary administrator.
EPA
59 The Tribunal finds that the EPA executed by DS in favour of RS is not operating in her best interests and therefore revoked it.
60 The guardianship and administration orders are to be reviewed in five years.
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER
0
0
1