DD - [2024] WASAT 129

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   DD [2024] WASAT 129
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   1 OCTOBER 2024
DELIVERED          :   1 OCTOBER 2024
PUBLISHED           :   28 NOVEMBER 2024
FILE NO/S:   GAA 3757 of 2024

DD
Represented Person
PROVIDER
Applicant

Catchwords:

Guardianship - Administration - Down Syndrome - Group home - Elderly parents deceased - No provision made in will - Consideration of Family Provision Act claim - Power of Tribunal to request documents - Appointment of Public Trustee as administrator - Direction to investigate - Appointment of private joint guardians

Legislation:

Family Provisions Act 1972 (WA), s 6, s 7
Guardianship and Administration Act 1990 (WA), s 43(1), s 64(1), s 110ZD
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4), s 35

Result:

Public Trustee appointed as administrator
Private limited joint guardians appointed

Category: B

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	In Person

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

DD is a 48-year-old woman with Down Syndrome. For the last 12 years, she has lived in a group home run by the disability accommodation provider (Provider). DD's father died in 2019 and her mother MM died in November 2022. Since then, no one has had thorough oversight of DD's personal or financial matters.
The Provider filed the application in July 2024 as documents relating to DD's NDIS accommodation and therapy services had not been signed and she was not receiving therapy services. DD's finances are managed by the Provider, who receive DD's disability support pension (DSP) and wages from her employment.
As an extra layer of complexity, DD's mother appointed the CEO and deputy-CEO of the Provider as the executors of her will. The will makes no provision for DD and gifts the estate to DD's sister AA. The (now former) CEO and deputy-CEO renounced their positions as executors shortly after MM died.
DD is part of a cohort of people who, prior to the implementation of the NDIS, were funded by the State-based Disability Services Commission. Under that system, parents of a child with a decision‑making disability were able to make all decisions and give all consents required without the need for formal guardianship and administration orders. As the cohort ages and their elderly parents pass away, consideration needs to be given to who should have the legal authority to make decisions for them, particularly when legal matters involving inheritance and adequate provision sometimes follow.
The matter was heard on 1 October 2024 (Hearing). I have decided to appoint the Public Trustee as DD's plenary administrator with a direction to consider whether a family provision claim should be made in respect of MM's will. I have appointed DD's sister AA and her cousin OB as her joint guardians. These are my reasons for doing so.

Procedural history

The Tribunal's jurisdiction under the Guardianship and Administration Act 1990 (WA) (GA Act) is protective in nature, with the primary concern being the best interests of the person for whom the application was made. The jurisdiction is also investigative, meaning that the Tribunal can request relevant information and documents pursuant to the provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Tribunal may inform itself on any matter as it sees fit,[1] and is not bound by the rules of evidence,[2] which ensures, as far as possible, that the Tribunal can take all relevant information, facts and circumstances into account when making a decision in the best interests of the person concerned.
[1] SAT Act, s 32(4).
[2] SAT Act, s 32(2).
In this matter, the Tribunal made the usual orders for the completion of medical and service provider reports, but as very little was known about DD's estate, the Tribunal issued numerous orders to produce documents pursuant to s 35 of the SAT Act which reads:
35.Obtaining information from third parties
(1)On the application of a party to a proceeding, the Tribunal may order that a person —
(a)who is not a party to the proceeding; and
(b)who has, or is likely to have, in the person's possession or under the person's control a document or other material that is relevant to the proceeding, produce the document or material to the Tribunal or the party within the time specified in the order.
(2)The Tribunal may order a person to produce a document or other material despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents.
(3)However if the Tribunal considers that any document is or contains protected matter, the Tribunal cannot order a person to produce it to a party.
As the application form mentioned that DD's parents had passed away, the Provider was asked whether they knew if she had received an inheritance. The Provider was not aware of any inheritance, but mentioned the name of a solicitor, Ms P, who was involved.
Aside from her sister AA, DD has two other living relatives; her maternal aunt, Aunty G, and cousin OB, who live in England. DD has spent time with Aunty G and OB in England and Australia. DD communicates with OB, with assistance, by WhatsApp. Aunty G and OB filed statements with the Tribunal setting out the nature of their contact with DD over the years. They were asked if they knew whether DD had received an inheritance. They responded to say that they did not know but AA should have those details.
The Tribunal ordered the production of the following documents:
(a)a copy of MM's will and other documents that would usually be filed as part of an application for probate from the solicitor Ms P. Ms P provided a copy of the will and filed a letter to advise that the executors nominated in the will had renounced their position and that AA had not applied for letters of administration. Ms P also mentioned that they had been unable to contact AA since December 2023;
(b)a statement from the Provider setting out the funds the Provider had received in respect of DD and/or the funds the Provider is managing for her from the date that MM died. The documents provided to the Tribunal show that on 31 August 2024, the Provider was holding $50,118 on DD's behalf. AA was surprised that the Provider was holding such a large sum for DD;
(c)copies of DD's contract of employment and payslips from her employer. The information provided demonstrates that each fortnight, DD works on average 15 hours, earns $62.70 in wages and $30 in superannuation. DD's 'employment contract' was a letter dated 20 April 2006 confirming that she would be employed in an office position;
(d)a copy of DD's NDIS plan from the support coordinator to ascertain the date of the plan, which was 15 February 2024 and the total budget, which is $317,491. Of that, $243,282 is paid as her 'home and living' core support, much of which is paid to the Provider for her accommodation at the group home and the support workers that assist her 24/7; and
(e)further documents from DD's employer including, among other things, any employee bargaining agreement or supported wage system that applied to her, a summary of her leave entitlements and information or the policy number for her superannuation fund.

Three issues the Tribunal must determine

As mentioned, the primary concern of the Tribunal when making decisions under the GA Act is the best interests of the person for whom the application was made. The starting point for the Tribunal is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments in respect of matters relating to their estate and their person. This is referred to as the 'presumption of capacity' and if set aside by clear evidence, the Tribunal can consider making guardianship and administration orders.
When deciding whether to appoint a guardian or an administrator, the Tribunal must address the following three stages of enquiry:
(a)the first stage is to determine whether the person lacks the capacity to make decisions about their personal and financial matters in accordance with the tests for incapacity set out in the GA Act.[3] If the person has capacity, the application will be dismissed;
(b)if the person is deemed incapable, the second enquiry is whether there is a need for the Tribunal to make an order. The Tribunal must consider whether there is another way for decisions to be made for the person that is less restrictive on their freedom of decision and action than the imposition of orders. If there is another way for decisions to be made, the application will be dismissed; and
(c)if there is a need for the Tribunal to make an order, the third stage of enquiry involves the Tribunal determining who the guardian or administrator will be, the functions or powers they require and how long the orders will run before they are reviewed.
[3] GA Act s 64(1) sets out the test for incapacity for financial decisions and s 43(1) of the GA Act sets out the test for incapacity for personal decisions.
I have taken into account the oral evidence given at the Hearing and the written evidence filed in these proceedings and need not set it out in detail. The relevant features are summarised in these reasons.

DD's views and wishes

The Tribunal must take DD's views and wishes into account. DD told me that she wanted her sister AA to make decisions for her. They clearly have a very close and trusting relationship. However, the cause of the application to the Tribunal was the difficulty the Provider had in contacting AA to ensure that all of DD's NDIS documents were signed. The Tribunal made numerous attempts to contact AA by phone and email and was only able to speak with her around one week prior to the Hearing.
AA explained that her employment requires her to be away from home and out of telephone range for up to two weeks at a time. At the Hearing, AA asserted that she had signed all the documents relating to DD's NDIS plan but acknowledged that she did have some problems with her emails.[4]
[4] ts 10, 1 October 2024.
The support coordinator advised that the services agreements for accommodation and therapy services had not been signed.[5] While this had not affected the stability of DD's accommodation, the Provider had not been paid for around eight months. DD's services were 'on pause' and the delay with signing the new agreement had meant that DD was not able to get a new recliner she wanted, which would usually be available through her occupational therapy services.[6]
[5] ts 9, 1 October 2024.
[6] ts 9, 1 October 2024.
When discussing AA's suitability for appointment as DD's guardian, the Provider suggested that DD's cousin OB also be appointed as DD's guardian to ensure that decisions would be made promptly for DD. While I am satisfied that AA is suitable for appointment as DD's guardian, and I am able to follow DD's wishes in appointing AA as her guardian, I will also appoint DD's cousin OB to be her joint guardian to ensure that there is always someone available to make personal decisions and sign documents for DD.
I am satisfied that it is not in DD's best interests to follow her views and wishes when appointing an administrator. As mentioned, MM's will does not make provision for DD. AA is aware of the conflict of interest and has sought legal assistance to engage solicitor to apply for letters of administration and administer the estate independently.[7] While I accept that AA intends to look after DD's interests, the only way to resolve the issue is for someone independent to consider DD's interests. The conflict of interest precludes AA from being DD's administrator and I am therefore unable to follow DD's wishes in that regard.

Issue 1 - does DD lack the capacity to make her own decisions about her personal and financial matters?

(1)(a) When can an administrator be appointed? The test for incapacity

[7] ts 16, 1 October 2024.

To appoint an administrator for DD, I must be satisfied that she is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate.

(1)(b) Does DD have a mental disability?

The medical evidence of Dr D shows that DD has Down Syndrome, which is a genetic condition that causes an intellectual disability. I find that the diagnosis of an intellectual disability falls within the meaning of 'mental disability' as defined in the GA Act.

(1)(c) Does the mental disability cause DD to be unable to make reasonable judgments about her estate?

A person's 'estate' includes their real and personal property, all assets and liabilities, and all of their financial affairs. DD's estate consists of her funds that are managed by the Provider, her superannuation and perhaps an interest in MM's estate.
For the Tribunal to decide whether DD is 'unable' to make reasonable judgments about her estate, I must consider the extent to which DD is able to engage in the cognitive process required to make a 'reasonable judgment' and then compare that against DD's estate and circumstances. The functional capacity assessment prepared in July 2023 (FCA) confirms that DD has always required assistance with managing her finances. DD is unable to use an ATM and while she can recognise notes and coins, she is unable to recognise amounts or determine change.
In my view, there is no doubt that the diagnosis of an intellectual disability associated with Down Syndrome is the cause of DD's inability to make reasonable judgments in respect of her estate.

(1)(d) Conclusion on capacity to make financial decisions

Having regard to the documentary and oral evidence provided to the Tribunal, I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of DD's ability to make reasonable judgments in respect of her estate. DD is therefore a person for whom I can appoint an administrator.

(1)(e) When can a guardian be appointed? The test for incapacity

To appoint a guardian for DD, I must be satisfied that she is over 18 years of age and that one or more of the following criteria apply:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.

(1)(f) Does DD lack the capacity to make personal decisions?

I am satisfied, and I find, that DD is currently incapable of looking after her own health and safety. The FCA indicates that DD requires full support for managing medication, making/attending GP appointments and constant supervision in her supported accommodation.
I am satisfied, and I find, that DD is currently incapable of making reasonable judgments in respect of her person due to her intellectual disability. DD has reduced executive functioning, problem solving and memory. The FCA advises that DD is aware that she requires support but does not know that it is due to her disability.
I am satisfied, and I find, that DD is in need of supervision and oversight in order to protect her health and safety, due to the requirement that she lives in supported accommodation.

(1)(g) Conclusion on capacity to make personal decisions

I am satisfied, and I find, that the presumption of capacity has been set aside in relation to personal decisions and DD is a person for whom I can appoint a guardian.

Issue 2 - is there a need for orders or a less restrictive option available?

Having regard to that evidence, there is no doubt that DD requires assistance to deal with her estate and to make decisions about her personal matters. The question I need to answer at this stage is not whether she needs assistance, but whether she needs an administrator or a guardian to be appointed for that purpose. I must bear in mind the need to adopt a less restrictive options if possible.

(2)(a) Is informal decision-making possible for financial decisions?

DD's finances have been managed informally by the Provider since MM died in November 2022. The Provider has provided DD with spending money and paid her rent and other expenses, which is common in an established group home environment. AA is consulted if there are any 'out-of-the-ordinary' expenses for DD, but AA was not aware of how much money DD had as she did not receive statements from the Provider.[8]
[8] ts 14, 1 October 2024.
The current CEO of the Provider mentioned how prior to the NDIS, service providers would manage trust accounts for residents in group homes and perform duties such as being executors of wills, but those types of functions are no longer considered appropriate.[9] The CEO advised that the Provider can, with authority from families and guardians, manage a small amount of money, comparable to 'pocket money', but larger amounts should be separated from a provider of supported independent accommodation.[10]
[9] ts 15, 1 October 2024.
[10] ts 26, 1 October 2024.
In addition, MM's will made no provision for DD and no one has formally considered whether a family provision claim should be made on DD's behalf on the basis that her mother has not made adequate provision for her.[11] AA gave evidence that she intended to would look after DD's interests,[12] however, if AA was holding assets on DD's behalf, and something unexpected happened in relation to AA's finances, such as a marriage breakdown or bankruptcy, there would be no protection for DD's interest in those assets.

(2)(b) Conclusion - is there a need for an administrator?

[11] Family Provision Act 1972 (WA), s 6 and s 7.

[12] ts 16, 1 October 2024.

I am satisfied on the evidence before me, and I find, that there no less restrictive way for decisions to be made relation to DD's estate. DD needs the Tribunal to appoint an administrator to manage her income and expenses on an ongoing basis, and obtain legal advice and make decisions in DD's best interests once that advice is received.

(2)(c) Is informal decision-making possible for personal decisions?

The informal assistance of the family, which is a less restrictive alternative, had previously sufficed when DD's parents were alive. It appears that service providers were accepting of AA signing legal documents for DD, although it was acknowledged by the support coordinator that AA did not have the legal authority to sign those documents.[13]
[13] ts 10, 1 October 2024.
In order to ascertain whether there is a need for a guardian, it is necessary to examine whether there are any ongoing personal decisions that DD is unable to make herself. As I will explain in further detail below, I am satisfied that DD will need decisions made about her ongoing medical treatment, her NDIS services, work, travel and where she will live and who she will live with.

(2)(d) Conclusion - is there a need for a guardian?

I am satisfied, and I find, that there is no less restrictive way to make personal decisions for DD. DD needs the Tribunal to appoint a guardian with those functions.

Issue 3 - who, what and how long?

(3)(a) Who should be DD's administrator?

Despite AA being difficult to contact at times, I accept that she wants the best for her sister. AA understood the conflict of interest and had taken steps to appoint a solicitor to administer their mother's estate.
I am satisfied that the only option open to the Tribunal is to appoint the Public Trustee as the administrator of DD's estate.

(3)(b) What should the administrator's powers be?

I am satisfied that the administration order should be a plenary order, which will allow the administrator to deal with all aspects of DD's estate in her best interests. I am satisfied on the evidence provided by the Provider as to the current supervision of her finances that DD is unable to make decisions about simple or complex financial matters.
I will include a direction for the administrator to investigate the merits of a family provision claim and conduct any legal proceedings if required. I will also include a direction for the administrator to investigate whether the employment income and superannuation earned by the represented person has been calculated in accordance with the relevant award or agreement due to the complexity in this area.
A suggestion was made that a limited administration order could be made to appoint the Public Trustee for the purpose of investigating the family provision claim only, with consideration of AA being appointed as the administrator for all other aspects of DD's estate. However, if DD needed to pay for legal advice, the Public Trustee would need access to her funds, which may not be forthcoming. In addition, the consideration of her employment income is technical, and due to the possibly of DD having other assets or interests that the Tribunal is not aware of, I am satisfied, and I find, that it is in DD's best interests that she has a plenary administrator with the expertise and resources of the Public Trustee.
I will also include a gifting authority of $200 per year so the administrator can purchase gifts on DD's behalf as she has historically bought small presents for her housemates.
I will authorise the administrator to use the documents received in these proceedings in DD's best interests, which may include negotiations or legal proceedings.

(3)(c) Who should be DD's guardian?

When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of the person, is suitable to act as the guardian, is not in a position where their interests' conflict or may conflict with DD's interests and that the proposed guardian will be able to perform functions vested in them.
I find that AA is over the age of 18 years and has consented to act as the guardian. I am satisfied, and I find, based on my observations of them during the Hearing, that AA and DD share a close relationship and that AA will act in DD's best interests. I similarly find that OB is over the age of 18 years and has consented to act as the guardian. I am also satisfied, and I find, that OB will act in DD's best interests, and his appointment will provide assurance that if AA is unavailable due to her work or for any other reason, OB will be able to make personal decisions for DD as required.
I am satisfied, and I find, that it is in DD's best interests that her sister and her cousin are jointly appointed to act as her guardians, and that they will be able to work together in DD's best interests.

(3)(d) What functions should the guardian have?

Medical treatment

I find that DD requires a medical treatment guardian to give informed consent to medical treatment and procedures. The evidence from Dr D is that she lacks the capacity to make decisions about medical treatment, accommodation and services.
While AA has standing under s 110ZD of the GA Act to make medical treatment decisions as DD's nearest relative that maintains a close personal relationship with DD, my view is that it is in DD's best interests that there is clarity for all health professionals that treat DD about who has the authority to make medical treatment decisions for her, which is OB if AA is unavailable.

Accommodation - who she will live with

DD has a particularly close relationship with one of the women she lives with in the group home, EE. EE's sister BB is EE's guardian and gave evidence that she was good friends with DD's mother and she always factors in DD when making decisions for EE. DD regularly spends time with BB's family and it was of great importance to BB that DD and EE continue to live together due to their strong bond.
I am satisfied that DD needs her guardians to be authorised to make decisions about who she lives with to ensure that she maintains her important, supportive relationships.

Accommodation - where she will live

DD requires a guardian to make decisions about where she will live. The FCA states that DD requires funding for specialist disability accommodation to support her transition into a new home. It is therefore necessary that DD's guardians have the authority to make decisions and sign documents in respect of any change about where she will live.

Services

DD's previous NDIS plan ran for two years from 12 February 2022 to 12 February 2024, meaning that MM was alive to sign the last plan. The problems with the payment for, and provision of, DD's NDIS services started in February 2024 when AA was not available to sign the documents. The support coordinator acknowledged that AA did not have the legal authority to sign the NDIS documents as she was not a plan nominee or a guardian.[14] As the support coordinator did not have a valid services agreement, she resorted to having DD sign her own agreement, despite being concerned that DD did not understand it.[15]
[14] ts 10, 1 October 2024.
[15] ts 9, 1 October 2024.
I am therefore satisfied that there is a need for a guardian appointed by the Tribunal to be able to make decisions about the services DD should have access to.

Work

DD has worked for the same employer for 18 years and she enjoys her work. However, if a new employment agreement needed to be signed, DD's guardians need the authority to do that and to communicate with her employer on her behalf.

Travel

As OB and Aunty G live in England, if DD wanted to travel, it is important for her guardians to have the authority to make decisions about travel so they can make all necessary arrangements.
AA was unaware that DD had just over $50,000 so she did not know that DD had the capacity to travel. We discussed the process whereby the guardians can make decisions and prepare a budget of the costs of travel, and they would then approach the Public Trustee to seek access to DD's funds to pay for the travel. The Public Trustee would decide whether to advance the funds, but if the travel was in DD's best interests and all appropriate arrangements had been made, for example, travel insurance, it is likely that the funds would be provided to facilitate the travel in DD's best interests.

Conclusion

I am therefore satisfied that there is a need for a guardian appointed by the Tribunal to make decisions for DD about her medical treatment, accommodation, services, work and travel.

(3)(e) How long should the order/s run before review?

When making orders, the Tribunal is required to fix a period for the review of the order, the maximum period of time allowed being five years. The medical evidence is clear that DD has a static diagnosis of an intellectual disability such that her need for a guardian and administrator will be lifelong. Therefore, these orders are to be reviewed within the maximum term possible which is within five years of the date of the orders.
When the orders are reviewed, the Tribunal can then examine whether there has been sufficient resolution of the issues which currently preclude the appointment of any family member.

Orders

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

Administration
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administrator is authorised to expend up to a total amount of $200 per annum on gifts on behalf of the represented person.
4.The administrator is directed to consider:
(a)the merits of a family provision claim in respect of the represented person's interest in the estate of [MM] and commence, conduct or settle any legal proceedings on behalf of the represented person; and
(b)whether the employment income and superannuation earned by the represented person has been calculated in accordance with the relevant award or agreement.

5.Pursuant to s 73(1) of the State Administrative Tribunal Act 2004 (WA), the Public Trustee is to be provided with copies of all documents filed in the matter and is authorised to use the documents in any legal proceedings or negotiations in respect of the represented person in any Court or Tribunal in Western Australia and in the represented person's best interests.
6.The administration order is to be reviewed by 1 October 2029.
Guardianship
7.[AA] of [address] and [OB] of [address] are appointed joint limited guardians of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to decide whether the represented person should work and, if so, the nature or type of work, for whom they are to work and any related matters;
(d)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(e)to determine the services to which the represented person should have access; and
(f)to decide whether the represented person should travel and the terms and conditions of such travel.

8.The guardianship order is to be reviewed by 1 October 2029.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
28 NOVEMBER 2024

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