DD and GV and MV [2015] WASAT 49

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 49
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:57/2015	Heard:	24 FEBRUARY 2015
Coram:	JUDGE T SHARP (DEPUTY PRESIDENT) MR D AITKEN (MEMBER) MS L EDDY (MEMBER)	Delivered:	6/05/15
No of pages:	35	Judgment Part:	1 of 1
Result:	Limited guardianship order confirmed Plenary administration order affirmed
Category:	B
PDF Version

Parties:	DD and GV MV
Catchwords:	Guardianship and administration Review by Full Tribunal Guardianship and administration orders Represented person a person for whom guardianship and administration orders can be made Need for guardianship and administration orders Who should be appointed When should orders be reviewed
Legislation:	Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43(1)(b), s 44, s 44(2), s 68(1), s 68(3), s 84, Pt 5 Div 3, Pt 6 State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)
Case References:	Nil
Summary	The applicants sought review by a Full Tribunal of guardianship and administration orders for MV made by a single member. One applicant, DD, is the neighbour of MV and GV is MV's brother. The single member appointed the Public Advocate as limited guardian for the represented person and appointed the Public Trustee as plenary administrator of the represented person's estate, both for a period of five years. DD put herself forward for appointment as guardian and administrator for the represented person. ,The represented person is an older person with a diagnosis of dementia which is characterised by a decline in cognition, confusion, wandering behaviours, a lack of insight regarding her own safety and wellbeing and incontinence. In 2010, the represented person moved into a respite aged care facility, and the represented person has lived in aged care facilities since. ,The Full Tribunal determined that DD should not be appointed as guardian for the represented person. This was for reasons including that the Full Tribunal was concerned that the applicant had already determined that the represented person would be moved from her current care facility due to previous disagreements which had arisen. The Full Tribunal did not consider that this would necessarily be in the best interests of the represented person. The Full Tribunal was also concerned that DD had vehement and fixed views about the type of medical treatment the represented person was to receive.,The Full Tribunal also determined DD should not be appointed plenary administrator of the represented person's estate. The Full Tribunal was unconvinced that DD had a clear understanding of the role of an administrator. There were also concerns about a potential conflict between the interests of GV and MV, and the position this would place DD in. ,Accordingly, the Full Tribunal determined that the Public Advocate should continue to be the limited guardian of the represented person and that the Public Trustee should continue to be the plenary administrator of the represented person's estate. The guardianship and administration orders were both made reviewable within five years.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : DD and GV and MV [2015] WASAT 49 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT)

MR D AITKEN (MEMBER)

MS L EDDY (MEMBER)

HEARD : 24 FEBRUARY 2015 DELIVERED : 6 MAY 2015 FILE NO/S : GAA 57 of 2015

GAA 58 of 2015

BETWEEN : DD and GV

Applicants

AND

Represented Person

Catchwords:

Guardianship and administration Review by Full Tribunal Guardianship and administration orders Represented person a person for whom guardianship and administration orders can be made Need for guardianship and administration orders Who should be appointed When should orders be reviewed

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43(1)(b), s 44, s 44(2), s 68(1), s 68(3), s 84, Pt 5 Div 3, Pt 6

State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)

Result:

Limited guardianship order confirmed

Plenary administration order affirmed

Summary of Tribunal's decision:

The applicants sought review by a Full Tribunal of guardianship and administration orders for MV made by a single member. One applicant, DD, is the neighbour of MV and GV is MV's brother. The single member appointed the Public Advocate as limited guardian for the represented person and appointed the Public Trustee as plenary administrator of the represented person's estate, both for a period of five years. DD put herself forward for appointment as guardian and administrator for the represented person.

The represented person is an older person with a diagnosis of dementia which is characterised by a decline in cognition, confusion, wandering behaviours, a lack of insight regarding her own safety and wellbeing and incontinence. In 2010, the represented person moved into a respite aged care facility, and the represented person has lived in aged care facilities since.
The Full Tribunal determined that DD should not be appointed as guardian for the represented person. This was for reasons including that the Full Tribunal was concerned that the applicant had already determined that the represented person would be moved from her current care facility due to previous disagreements which had arisen. The Full Tribunal did not consider that this would necessarily be in the best interests of the represented person. The Full Tribunal was also concerned that DD had vehement and fixed views about the type of medical treatment the represented person was to receive.
The Full Tribunal also determined DD should not be appointed plenary administrator of the represented person's estate. The Full Tribunal was unconvinced that DD had a clear understanding of the role of an administrator. There were also concerns about a potential conflict between the interests of GV and MV, and the position this would place DD in.
Accordingly, the Full Tribunal determined that the Public Advocate should continue to be the limited guardian of the represented person and that the Public Trustee should continue to be the plenary administrator of the represented person's estate. The guardianship and administration orders were both made reviewable within five years.

Category: B

Representation:

Counsel:

Applicants : In Person

Represented Person : N/A

Solicitors:

Applicants : N/A

Represented Person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 This matter comes before the Tribunal by way of an application dated 7 January 2014 made under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act). The application is made by DD and GV, who seek a review of the decisions made by a single member of the Tribunal on 10 December 2014. The decisions in dispute are the decisions of the member to appoint the Public Advocate as the limited guardian of MV and to appoint the Public Trustee as the plenary administrator of the estate of MV.

2 In order to fully understand the context of this application, it is necessary to summarise the history of proceedings in the Tribunal in relation to the represented person MV.

The original application

3 Applications for guardianship and administration orders in relation to MV were first made to the Tribunal by an employee of the Department of Health in September 2012. The grounds of those applications were, in essence, that MV, who was then 83 years old, had been staying on a respite basis at a residential facility but had not been paying for that service, in circumstances where she could not return to her own home because it had been deemed to be uninhabitable and there were questions about MV's capacity to make necessary decisions in relation to her personal circumstances and her finances.

4 In December 2012, a single member of the Tribunal heard those applications. DD, the current applicant, was not identified at that time by any person as an interested party in the proceedings and she was therefore not notified of the hearing date and did not participate in the proceedings.

5 There was evidence before the Tribunal, which was accepted, that MV had been diagnosed with dementia and because of the progression of that condition she was not capable of making reasonable decisions in relation to her estate or personal matters. The Tribunal made orders appointing the Public Trustee as plenary administrator of MV's estate and appointing the Public Advocate as limited guardian with authority to decide where MV was to live, and with whom, to make treatment decisions for MV and to determine the services to which MV should have access. Both orders were made subject to review by the Tribunal by 7 December 2014.

Review of the guardianship order

6 In October 2013, the Public Advocate applied for a review of the limited guardianship order on the ground that she was of the view that she needed an additional function or authority as guardian so that she could make decisions about whom MV should have contact with. In this application, DD was identified as an interested person in the proceedings on the basis that she had been a neighbour to MV when MV resided in her own home. However, there is little evidence before the Tribunal regarding the nature or longevity of the relationship between MV and DD.

7 In November 2013, after a hearing at which DD was present, a single member of the Tribunal amended the guardianship order to include the additional function of determining what contact, if any, MV should have with others and the extent of that contact. The review date for the order as amended remained unchanged, 7 December 2014.

The decisions under review

8 On 10 December 2014, upon review of the guardianship and administration orders, a single member of the Tribunal confirmed both orders. Those decisions were made following hearings on 25 November 2014 and on 10 December 2014. DD was present at both hearings.

9 There was again evidence before the Tribunal, which was accepted by the member, that MV had dementia and because of that condition she was not capable of making her own reasonable decisions about her estate or personal matters.

10 A significant point of dispute at the hearings of these applications was that DD was of the view that MV should, on an urgent basis, receive traditional Chinese medicine treatment from practitioners known to DD, but the Public Advocate had not, at that point in time, consented to MV receiving this treatment. DD asserted that this was an example that showed that the Public Advocate was not making decisions in MV's best interests. DD also gave other examples that she submitted showed that the Public Advocate had failed, and continued to fail to make decisions in MV's best interests. DD put herself forward as a person willing to take on the role of guardian and administrator and she submitted that to appoint her would be in MV's best interests. GV, MV's only brother, supported DD's application to be appointed as MV's guardian and administrator.

11 Ultimately, the decision of the Tribunal was that Public Trustee was again appointed as the plenary administrator of MV's estate and the Public Advocate was again appointed as the limited guardian of MV. The guardian's functions remained the same: to make decisions about MV's accommodation, to make treatment decisions for MV, to determine the services she should have access to, and to determine what contact, if any, MV should have with others and the extent of that contact.

Issues for determination

12 A review under s 17A of the GA Act involves a fresh consideration of the matters that were before the single member and of any new material whether or not it existed at the time of the original decisions; s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'; s 27(2) of the SAT Act.

13 In deciding whether to confirm, or alternatively, to amend or revoke a guardianship or administration order, regard must be had to the provisions in Pt 5 and Pt 6 of the GA Act with respect to the making of such orders. The principles stated in s 4 of the GA Act must be observed by the Tribunal in dealing with all proceedings commenced under the GA Act.

14 The issues to be determined in this review application are therefore:

1) whether MV is a person for whom a guardianship or an administration order can be made (capacity); and

2) whether there is a need for a guardianship or an administration order.

15 If the above questions are answered in the affirmative, the following further issues arise:

1) Should any order should be plenary or limited?

2) If the latter, what functions should be conferred, and should any directions or conditions should be placed on the order(s)?

3) Who should be appointed as guardian and/or administrator?

4) When should the order(s) be required to be reviewed by the Tribunal?

16 When considering the issue of whether any order should be plenary or limited, regard must be had to the statutory requirement in s 4(5) of the GA Act. That essentially provides that a plenary guardian must not be appointed if the appointment of a limited guardian would be sufficient. In addition, any order appointing a limited guardian or an administrator must be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action (s 4(6) of the GA Act).

17 In determining the application as a whole, including each of the above issues, the Tribunal is required to have MV's best interests as its primary concern (s 4(2) of the GA Act). In addition, it is necessary, where possible, to ascertain the views and wishes of MV in relation to the matters raised by this application (s 4(7) of the GA Act).

Capacity

18 The starting point for determining whether a guardianship or an administration order should be made is the rebuttable presumption of capacity found in s 4(3) of the GA Act.

19 It was not in dispute between the parties at the hearing that MV lacked capacity and was in need of a guardian and administrator (T:4, 29; 24.02.15).

20 In a report dated 5 February 2015, Dr Amindor Singh stated that MV is incapable of making reasonable decisions in relation to her personal healthcare, living situation and financial affairs.

21 Furthermore, in a report dated 21 January 2015, Ms Loretta Bushby (an enrolled nurse and a care coordinator at the facility in which MV resides) stated that MV is unable to make decisions regarding her health and money matters.

22 The Public Advocate, in a report dated 16 February 2015, also expressed the view that MV is a person for which an order could be made pursuant to s 43(1)(b) of the GA Act.

23 This is consistent with the evidence which was before the Tribunal on previous occasions.

24 We therefore came to the conclusion at the hearing that the presumption of capacity in s 4(3) of the GA Act has been rebutted.

Need for orders

25 It is also not in dispute between the parties that MV is in need of a guardian and an administrator (T:4, 29; 24.02.15).

26 This was also consistent with the reports of Dr Singh and Ms Bushby, as well as the evidence before the Tribunal on previous occasions.

27 It also became apparent at the hearing that there were ongoing decisions to be made about where MV is to live, how any facilities are to be paid for, and what medical treatment she is to receive.

28 Therefore, the presiding member at the hearing made declarations that MV was in need of a guardian and an administrator:

[MV] is unable, by reason of a mental disability, and the symptoms you describe are a mental disability, to make reasonable judgments in respect of matters relating to her estate and … she needs an administrator.

(T:4; 24.02.15)

[MV] is incapable of looking after her own health and safety, she's unable to make reasonable judgments in respect of matters relating to her person, this is all the personal things, is in need of oversight, care or control in the interests of her own health and safety and, most importantly, needs a guardian. (T:2830; 24.02.15)

Scope of orders

29 We are also required to consider whether those orders should be plenary or limited. If limited, we are required to consider what functions a guardian or administrator should have.

30 In relation to administration, we have come to the conclusion that a plenary administrator should be appointed. The medical evidence before us is that MV is unable to make decisions in relation to the entirety of her estate. This was not in dispute between the parties at the hearing (T:4; 24.02.15).

31 In respect of a guardianship order, as we have previously mentioned, a plenary guardian must not be appointed if a limited guardianship order would suffice; s 4(5) of the GA Act.

32 The Public Advocate expressed a view regarding the appropriate functions of any guardian in her report of 16 February 2015. In summary, the delegated guardian stated as follows:

1) Accommodation: the Public Advocate noted that while MV is currently in a permanent residential facility, DD continues to discuss with MV the possibility of her living with GV in Joondanna.

2) Treatment and healthcare: MV's cognition continues to decline and the Public Advocate says that the symptoms of dementia are beginning to affect MV's wellbeing.

3) Services: MV continues to participate in services visiting the facility that may require the consent of the guardian.

4) Contact: the Public Advocate notes that concerns have been raised with her by the residential facility regarding the people with whom MV has contact. We will elaborate on this later in our decision.

33 We accept the Public Advocate's evidence in this regard and have concluded that a guardian is required:

1) to decide where MV is to live, whether permanently or temporarily;

2) to decide with whom MV is to live;

3) subject to Div 3 of Pt 5 of the GA Act, to make treatment decisions for MV;

4) to determine what contact, if any, MV should have with others and the extent of that contact; and

5) to determine the services to which MV should have access.

Who should be appointed

34 This is the principal concern of the applicants and is the fundamental basis for the review application in this case. DD and GV both contend that DD should be appointed as MV's guardian and administrator.

35 Although the Public Advocate is a guardian of last resort under the GA Act, she strongly recommends that she is reappointed as guardian for a period of 5 years. The Public Advocate also recommends that the Public Trustee is reappointed as MV's plenary administrator.

The relevant legislation

36 Section 44 of the GA Act relevant provides:

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

(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;

(d) whether the proposed appointee will be able to perform the functions vested in him.

…

(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.

37 In relation to administration, s 68(1) and (3) of the GA Act provide:

Who may be appointed administrator

(1) An administrator (including a joint administrator) shall be

(a) an individual of or over the age of 18 years; or

(b) a corporate trustee,

who has consented to act and who, in the opinion of the State Administrative Tribunal

(

c) will act in the best interests of the person in respect of whom the application is made; and

(d) is otherwise suitable to act as the administrator of the estate of that person.

…

(3) For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible

(a) the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;

(b) the wishes of that person; and

Is DD a suitable person to be appointed as administrator?

38 We turn first to the issue of whether DD should be appointed as MV's administrator.

39 We note that, while the application was for DD to be appointed as both guardian and administrator, it is the guardianship which was DD's primary concern at the hearing. DD stated as follows:

… if [the] Public Trustee is benign at this stage and they truly are working for the best interests of [MV], which I believe in the past they weren't, then maybe that's not the pressing issue. The pressing issue is [MV]'s health.

(T: 27-28; 24.02.15)

40 Section 68(3) of the GA Act sets out three factors for us to take into account when considering the suitability of a proposed administrator. We will address each in turn below.

DD's compatibility with MV and the current delegated guardian

41 One point we must consider is the compatibility of DD, should she be appointed as administrator, with MV and with her current guardian. Aside from DD's own evidence at the hearing, we have little evidence before us regarding the nature of DD's friendship with MV. DD describes this as a close and longstanding friendship. MV did not attend the hearing, and it is therefore difficult for us to form a view of her relationship with DD.

42 We also note that there is evidence of ongoing conflict between DD and MV's current delegated guardian. During the hearing, when asked how she would work with other professionals if appointed, DD maintained:

I would negotiate it at every step of the way for MV's best interests. Absolutely. I mean, I've always more than once I've extended an olive branch to [the delegated guardian (SB)]. Even when she has been very difficult I thought, okay, I can understand. If I was in her position I might feel a bit put out too if people had made these accusations of me. So I would ring SB. I believe I've even put it in email. You know, 'SB, I'm sorry if things have been a bit tense between us in the past, but it's only ever been for MV's best interests.'

That's what I'm advocating for. I have on more than one occasion extended an olive branch to SB. And I don't have a problem working with anyone. … (T:91-92; 24.02.15)

43 However, other comments made by DD at the hearing lead us to believe that she would not be able to work effectively with the current delegated guardian, if reappointed. At one point, DD went so far as to accuse the delegated guardian of misleading this Tribunal (T:101; 24.02.15).

44 Also, DD stated:

Well, I've been I've asked, actually, OPA, to change guardians, that SB has done certain things that make her no longer appropriate to be the guardian, but they won't change the guardian. So I've tried even that option, your Honour. (

T:107; 24.02.15)

45 There would, of course, be no issue on this point if DD was to be appointed as MV's guardian.

MV's views on the administration

46 There is little evidence before the Tribunal (apart from DD's testimony) regarding MV's views on who should be administrator.

DD's ability to perform the functions of an administrator

47 Further, we must consider whether DD will be able to perform the functions of a plenary administrator. We have serious concerns in this regard.

48 At the hearing, when DD was asked whether she understood what was involved in being an administrator, she answered 'Well, I will find out' (T:5; 24.02.15).

49 Further, while we noted at the hearing that MV's estate is relatively simple in terms of income, there are some complications in relation to a property in which MV holds an interest (T:5; 24.02.15).

50 The Public Trustee filed reports with the Tribunal on 20 February 2015 and 17 November 2014. Those reports note that the Public Trustee accepts a Centrelink age pension on behalf of MV. The reports also note the following relevant complications with MV's estate:

1) MV owns property situated in Joondanna (

property)

in conjunction with GV as joint tenants. GV is the sole occupant of that property. The residence situated on the property is in very poor condition. Both MV and GV have little liquid assets meaning that the property issues cannot be addressed. GV's appointed trustee, B, has conducted significant work on the property personally. However, much more work is required. B initially approached the Public Trustee with a proposal that a portion of the land be subdivided to raise further funds. However, GV was opposed to the idea. After further consideration the Public Trustee suggested to B that only a reverse mortgage be initiated without the need to subdivide. This would allow sufficient funds to pay for repairs to the residence and would also act as a contingency fund for GV and MV. This is the current course of action and as at the time of the hearing, the Public Trustee was engaging negotiations with Bankwest towards signing the mortgage documents.

2) MV also has a number of liabilities. Neither MV or GV have sufficient funds to pay shire rates arrears on the property. It is anticipated that the outstanding amount will be dealt with through the funds raised by the reverse mortgage.

3) Further, MV has a contingent liability with the Commonwealth Bank. In 1993 a security deposit guarantee was registered for the amount of $8,750. The information provided by the bank indicates that the guarantee favours the Shire of Mundaring in relation to a Public Open Space contribution for a previously owned property on York Road. The Shire of Mundaring requested in writing payment in full, which has been forwarded to the bank for their attention. The Public Trustee's office is liaising with the Commonwealth Bank to determine what is required to settle the contingent liability.

51 We questioned DD about how she would deal with these complications at the hearing. In essence, DD's plan appears to be to obtain a 'line of credit' from the bank, to improve the property so that MV can move back home, and then 'to slice off a small portion' of the property when needed (T:6; 24.02.15).

52 In relation to the property, DD made the following comments:

: Yes. I'm already helping [GV] with the property in conjunction with [B].

THE D PRESIDENT: Right. But by helping him, what do you mean?

DD: Well, in the future [GV] and [MV's] wishes were essentially to leave it as an undeveloped block, like a park.

THE D PRESIDENT: Yes.

DD: Though, to be pragmatic, they might have to slice off a small a small portion may have to be sold if they draw down some money from the bank against the property to give them a better quality of life, and that's already in starting to happen. [B] has discussed with Public Trustee. Now, I haven't been involved discussing that with Public Trustee because [B] is handling that at this stage. There's no need for both of us to do that, but I'm absolutely involved on a daily basis. (T: 5-6; 24.02.15)

53 We then questioned DD regarding her understanding of the function of a reverse mortgage. While we were questioning DD, CG, a Chinese medical practitioner who was assisting DD at the hearing, interjected. The discussion was as follows:

THE D PRESIDENT

: What do you understand [a reverse mortgage] to be?

DD: Well, I believe that when they will have a line of credit that will be drawn down. That's what was discussed, and I imagine when the time comes when one isn't around any more, there's a proposition that the corner of the block will be sold, maybe 300 square metres or because it's quite pricey in that Joondanna has gone up 23 per cent apparently, across the board in Perth, the highest percentage in all of Perth, and a corner off the block will be sold to pay back the bank.

THE D PRESIDENT: All right.

DD: So it's not going to be drawn down all at once; there's no need. It will only be drawn down as needed.

…

THE D PRESIDENT: All right. Thanks, [GV]. All right. So I understand. So how then is the mortgage to be repaid? Because it is a loan.

DD: It is a loan. I believe when it will be paid all at once when yes, when [MV] is no longer around.

THE D PRESIDENT: Okay. So when on - - -

DD: Don't quote me on that because - - -

THE D PRESIDENT: No, no.

DD: Yes.

THE D PRESIDENT: I'm trying to understand - - -

DD: I understand it's going to be a line of credit.

THE D PRESIDENT: - - - and I'm trying to understand what the process is. Yes.

DD: Yes.

THE D PRESIDENT: And so the money is going to be drawn down.

DD: Only as needed.

THE D PRESIDENT: Yes.

DD: So it's not going to be a lump sum sitting in the bank.

THE D PRESIDENT: And the interest on that loan?

DD: I can't tell you. I'm sorry. I can't tell you. That would be easy enough to find out from the bank.

…

THE D PRESIDENT: How do you pay the interest on the loan?

DD: Well, I believe it's going to be paid when - - -

CG: Upon the sale of the property. I think sorry, can I interrupt?

DD: Yes.

CG: I think they're going to take off a part of the property, take a loan to do that, to do the subdivision, and then sell that bit and pay the loan off completely (indistinct). (T:7-9; 24.02.15)

54 It was then that DD outlined her proposal that MV return to live in the property:

THE D PRESIDENT

: My understanding was that [MV] was quite opposed to selling any of the property.

GV: Yes, at the moment.

DD: Yes. Yes, she is, but she's a very pragmatic woman and if it allows her if the funds allow her to fix the house up so that she can live in there safely and comfortably, such as ramps, whatever is needed, and provides the extra support for her, I believe she would be prepared to slice off a small portion, a corner block.

THE D PRESIDENT: Sorry. So the proposal is that she goes and lives in the house?

DD: Eventually, when it's ready, and with support. Yes.

THE D PRESIDENT: Okay.

(T:9; 24.02.15)

55 When questioned about payment of MV's liabilities, DD explained her plan to pay those amounts as follows:

THE D PRESIDENT

: The money which is owed to the Commonwealth Bank, what do you know about that? The debt to the Commonwealth?

DD: I don't know what you mean exactly, unless you're on about to do with the block [MV] owned up in the hills.

THE D PRESIDENT: I think that's probably where that came from, yes.

DD: Yes. Because probably what [MV] did is she didn't pay the rates and she somehow did some deal, 'I will pay you later,' I don't quite know, because I was in the process of sorting out all of [MV's] paperwork, finances, when she was then taken over by the government, so that stopped then because that became their responsibility, but I have been handling [GV's] helping supporting [GV's]. I think it's about 4000-odd dollars, something like that. I'm not quite sure. I've worked it out. If, in the future, [MV] does come home, your Honour, both GV and her will be [GV] and [MV] will be pulling in, what, nine nine times about $1800 every fortnight. That's over $3000 a month, which is a sizeable amount for people who don't have any mortgage to pay off and their needs are simple, apart from some treatment, and that's quite a lot that they can pull together. Yes. (T:15; 24.02.2015)

56 It therefore appears that the plan to pay off MV's debts is contingent on MV moving back into the property and no longer paying for the facility.

57 When questioned as to the costs of caring for MV at home, DD stated as follows:

: … Well, that that's when that money of course, if I'm going to give her 24 hour care, that means my work will be compromised. I'm not going to be making money, and I would like to be living on more than just a carer's pension which is only $700-odd a fortnight. I thought of all of this. That's when we would access if we get [GV's] money that's owing to him quickly, we might then consider that line of credit. But, like I said, that would be a last option.

58 We also questioned DD about her level of involvement with GV's financial affairs.

AITKEN MR

: [DD], I'm just a little bit confused that [B], we've been told, is the enduring power of attorney for [GV].

DD: He is.

AITKEN MR: I can't understand why you're doing all of this chasing up of the finances and the amount that's owed to him, and that [B] isn't doing that. Why (indistinct).

…

AITKEN MR: The concern I've got is that if someone is the donee of an enduring power of attorney, that they are invested, or they are given the responsibility under the Act, as well as the obligation to protect that person's finances. It's a little bit similar to the position of being an administrator - - -

DD: Yes.

AITKEN MR: - - - and it just concerns I just want to give you the chance to comment on this. It concerns me that you're putting yourself in there seemingly in a role of being a joint attorney, whereas in fact [B] is the person that's the legal attorney and I - - -

DD: Well, because yes, I hear you. That's because I like I've already said, I had already done so much prior to [B] coming on board. That's why I have all this knowledge.

(T:16; 24.02.15)

59 Given DD's obvious close relationship with GV, we raised some concerns about any potential conflict between the interests of GV and MV and how DD would deal with such conflict:

THE D PRESIDENT

: I understand that. So you have quite different interests in that property. On the one hand, we've got [GV] who that's his home.

DD: Yes.

THE D PRESIDENT: On the other hand, we've got [MV], for whom that is an asset, but it can be used to make her life a little bit more comfortable.

DD: Absolutely (indistinct).

THE D PRESIDENT: So they do have quite different interests, and simply leaving it to [GV] and his attorney, I don't think is going to cut it.

DD: Well, for now, if I'm appointed the administrator, absolutely I would become involved. I actually already am involved, but because [B] is the official EPA, he handles the Public Trustee at this stage. I have had some contact in the past.

(T:9; 24.02.15)

60 Despite this assurance from DD, further comments made by DD throughout the hearing continued to give us doubts regarding her understanding of her role as MV's administrator and her ability to prioritise MV's interests over those of GV. For example, in relation to the proposal to subdivide the property, DD stated as follows:

AITKEN MR

: - - - what you can tell me about that. Subdivision of a property can be a complicated exercise.

DD: Absolutely, and I appreciate that. Now, whatever the minimum is, that's the amount that most likely will be chosen, or depending on what [GV] is agreeable to. He might like a bit more money available to him …

(T:11; 24.02.15)

61 Further, DD expressed dissatisfaction that the Public Trustee was originally, in her view, 'putting pressure on GV to sell the block' (T:23; 24.02.15). This, to us, demonstrates that DD does not understand that her role as administrator would be to consider the interests of MV, and not GV.

62 DD also explained to the Tribunal her plan to recover what she sees as a debt owed to GV. DD explained her plan as follows:

: - - - if I may just share this because it may help the judges. [GV] has a transaction he sold a property up in Greenmount a while ago.

…

DD: Yes, yes. 2007, he sold it. Unfortunately he sold it to a friend and sold it a very low price, that's his prerogative except what happened, the friend is only paying him $500 until [GV] is aged 99 to pay it off. Now I've told [GV] he's a very kind man, but I said, '[GV], now you and [MV] could actually do with that lump sum. There's at least fifty about 45,000 already owing still owing on it because I've gone to the trouble it has been a little bit, I'm going to say, unpleasant, but the people haven't been happy that I've called them up on it. I've demanded and sent letters and demanded they give me a list of exactly how much they've paid [GV] and then I've gone back over seven years and I've actually tracked it on [GV's] bank statement, and actually some of it doesn't add up, so I'm in the process of checking that and also demanding that they pay the outstanding balance of approximately 45,000 ASAP, and they haven't been paying him any interest. I think it's terribly unreasonable that they expect to pay [GV] until he is 99 years of age. So that is also in the works and I have been handling that.

THE D PRESIDENT: I understand. Of course that doesn't affect [MV]. It's not anything to do with her.

DD: No, but [GV] is more than happy to share his money with his sister.

THE D PRESIDENT: Yes. I understand the point you're making.

DD: If he gets it, he will help [MV].

THE D PRESIDENT: Yes. I understand the point you're making.

DD: He will invest it in the property so there might not even need to be any money drawn from the bank. That would be ideal.

THE D PRESIDENT: The money okay.

DD: But that's I mean who knows what will happen with that. That might mean a little bit of a court case, if the people aren't agreeable to pay the approximately 45,000 that they're still owing [GV], and that's not even any interest at all, and then - - -

(T:13-14; 24.02.15)

63 When questioned whether DD had obtained any legal advice in relation to this situation, she responded:

: We haven't legal advice is quite pricey and I don't want to be wasting [GV's] money at this stage, but I believe we can because really [GV] essentially signed away his rights. You know, who in their right mind would do that when his own needs are pressing, and fortunately I've already found out, [GV] said to me he did not get legal advice when he transacted the deal …

(T:18; 24.02.15)

64 DD's evidence as described above gives us concerns about her ability to be an effective administrator.

65 DD does not seem to have a clear understanding of the role of an administrator, or a clear plan in relation to the administration of DD's estate. We are concerned that DD appears to have applied to be administrator on the basis that she will find out what is required of her at a later date. As previously stated, this is not a simple administration but involves complex decisions in relation to finance and real property. She does not seem to have any knowledge of the planning considerations relating to subdividing the property, nor does she have a clear understanding of the operation of reverse mortgages. Part of DD's plan in relation to paying off MV's debts relies on MV moving out of her current care facility. This may not be a realistic possibility.

66 Further, DD has shown an extreme willingness to involve herself in GV's financial affairs, to the exclusion of his appointed attorney. DD does not seem to appreciate the real conflict between MV's and GV's interests in the property. She does not seem to understand what the boundaries of her role as MV's administrator would be, or her duty to uphold MV's interests even where they are in conflict with those of GV. Furthermore, she has not considered the potential problems this may cause for her friendship with GV.

67 Significantly, some of DD's actions in relation to GV's estate give us grave concerns about her level of judgment. Most notable of these was her decision to try to unilaterally reverse a property transaction made by GV when he had capacity, without obtaining any legal advice on the subject.

68 We are not for these reasons satisfied that DD is able to perform the functions of an administrator.

Suitability

69 DD's expectation that she will be paid as MV's carer when MV moves to the property is another cause for concern. This would put her in a position of conflict of interest with MV. A conflict of interest of this type is a significant one in the context of the role of administrator.

70 The conflict of interest, as well as the other concerns held by the Tribunal as discussed above, cause us to find that DD is not suitable to act as MV's administrator.

Is DD a suitable person to be appointed as guardian?

71 Section 44(2) of the GA Act relevantly sets out four key factors for us to consider when determining whether DD would be suitable to act as guardian for GV. We will address each of those factors below.

DD's compatibility with the Public Trustee

72 We are required to appoint a guardian who can work effectively with MV's administrator. We have concerns about whether DD can work effectively with the Public Trustee.

73 As previously mentioned, DD had commented throughout the hearing that the Public Trustee had not always been 'benign' (T:2728; 24.02.15).

74 DD stated at one point:

I hear you, but it's because of all the trouble we've had, so to date with Public Trustee. I believe they weren't honest, they weren't transparent and I believe their they may have things obviously have changed at this stage because people like myself have come in and …

(T:25; 24.02.2015)

75 We questioned DD directly about this point at the hearing. Member Aitken asked as follows:

Well, just picking up on that point, [DD], that I had asked you to address before the break. If the tribunal decides to leave the Public Trustee as administrator, probably the principle reason for that might be that it's a complex situation in terms of what's to happen to the real estate. If that were the case, are you able to tell us how you feel you would be able to work with the Public Trustee? The Public Trustee might then form the view, for instance, that it's not in [MV's] best interests to keep the property because funding is needed to meet her other needs, and it's appropriate to negotiate with the enduring power of attorney to sell the property.

DD: To sell the complete property? It's one acre, undeveloped, in Joondanna.

AITKEN MR: Well, I'm giving you a hypothetical.

DD: Sure.

AITKEN MR: Say a situation like that arises.

DD: Yes.

AITKEN MR: How would you be able to work as guardian with the Public Trustee in terms of what was to happen with accommodation?

DD: I would negotiate it at every step of the way for [MV's] best interests. Absolutely.

(T: 91; 24.02.15)

76 However, DD then went on to discuss her ongoing problems with the delegated guardian and did not directly address Member Aitken's question. We therefore do not accept DD's assurance that she could work effectively with the Public Trustee.

77 Given that DD's plan as guardian would be to move MV back into the property, it is essential that she have a good working relationship with MV's administrator.

The desirability of preserving existing relationships

78 We are also concerned that DD has shown difficulty in maintaining effective relationships with other people in MV's life.

79 We have already outlined DD's difficulties in liaising with the Public Trustee and delegated guardian.

80 We have also discussed the potential conflict between GV's interests and MV's interests. As stated previously, we are concerned that DD does not appear to have turned her mind to how this may affect the relationships between MV and GV.

81 Further, we should also note that DD appears to have difficulty in maintaining a positive relationship with staff at MV's residential facility. For example, when asked about the care coordinator's view that MV is happy in the facility, DD stated as follows:

Forgive me, your Honour, I categorically don't agree with the subjective opinions of [the care coordinator] … I would actually go as far as to say they're actually taking liberty when they give that subjective opinion, and I believe they probably are trying to help the guardian, and maybe separate me and MV. Now, I'm not saying that to be nasty, people do all sorts of things like that.

…

So, you know, there's been some lies said, and I use that word very, very carefully. (T:98-99; 24.02.2015)

82 Despite her statement that she made allegations of dishonesty carefully, the Tribunal found that DD is, in fact, very willing to accuse people of dishonesty without regard for the gravity of such an allegation. It appeared to the Tribunal that DD was willing to make such allegations whenever someone disagrees with her views on MV's care.

MV's wishes in respect of guardianship

83 We have little evidence before us regarding MV's views on who should be guardian.

Would DD be able to perform the functions to be vested in the guardian

84 We turn finally to consider whether DD would be able to adequately perform the functions required of MV's guardian. We have particular concerns about DD's ability to perform two of those functions, namely:

1) to make medical decisions for MV; and

2) to decide where MV is to live.

85 DD mentioned at the outset of this hearing that she considers MV's medical treatment to be the 'pressing issue' in this matter (T:29; 24.02.15).

86 Throughout the hearing, DD proved to be vehemently of the view that MV is in need of Chinese medical treatment, and that this treatment will cure MV's dementia.

87 DD was asked at the hearing about Dr Singh's diagnosis that MV suffers from dementia and will become progressively worse:

THE D PRESIDENT

: Well, the reason why I ask is you understand that he has diagnosed [MV] with dementia?

DD: That's no surprise.

THE D PRESIDENT: Yes.

DD: Yes.

THE D PRESIDENT: You understand that?

DD: That's no surprise.

THE D PRESIDENT: And you understand what that means?

DD: It depends - - -

THE D PRESIDENT: That she is going to get progressively worse.

DD: Well, without treatment she will, absolutely. Chinese medicine has got clinical evidence to the point of 93.2 per cent.

THE D PRESIDENT: I'm not going to comment on the treatment. I don't need to.

DD: Yes.

THE D PRESIDENT: The treatment is and the decision for treatment rests with whoever is appointed as a guardian - - -

DD: Absolutely.

THE D PRESIDENT: - - - and is actually irrelevant from the point of view of our process today. What I'm just concerned about though, as I say, you've worried me about your grand plan of trying to bring [MV] home, and you're not convincing me that you understand that she suffers from dementia.

DD: I know she has got dementia. That's why I'm advocating the Chinese medicine. It's no surprise - - -

THE D PRESIDENT: Well, why wouldn't everybody have Chinese medicine if that's the cure for dementia?

DD: Well, I can't speak for everybody, your Honour.

THE D PRESIDENT: No, no. I understand that. But it just - - -

DD: It's a free world.

(T:36-37; 24.02.15)

88 Given DD's obviously strong belief in the efficacy of Chinese medical treatment, we questioned her about the research which she had undertaken before forming these views:

: Yes, I have used the internet. Thank heavens for the internet, and I have found data from universities that proves it's effective. 60 scientists and clinicians wrote a book and in that book I've actually given the information to the guardian there's two or three studies, and it showed acupuncture helped dementia as high as 93.2 success. The other study was 82 per cent success. I provided that to the guardian. I also have got the privilege forgive me of knowing some very well trained practitioners: [CG] and Mr Pang. And Mr and, like [CG] said, she has treated people with memory issues and they have improved.

Mr Pang, who has had who started learning from age 12 of course, he wasn't practising from age 12, but he started learning from age 12. It was in his family, and his father he wouldn't like me saying this, but his father was Minister for Education in China before Mao Tse Tung came in power, and his father pulled strings and made Mr Pang have the privilege of being taught by the personal doctor to the last Emperor of China. So, essentially, I'm saying these two people are very well taught. Mr Pang - - -

…

EDDY MS: - - - so what have you done? You say, 'I've researched other things' and you can tell me very clearly and very you've done thorough research in relation to why you believe Chinese medicine is a positive thing for [MV], but I just want to know, then, what did you do to determine whether there was any information with a contrary view.

…

DD: I looked on the internet and I've spoken to people who are in the field, namely [CG] and Mr Pang, who is close to 70 out of interest.

EDDY MS: But these are people who practise in that field - - -

DD: Yes.

EDDY MS: - - - who would be expected to have a particular view about the field.

DD: Well, actually, I haven't the evidence I found and I this is important. The evidence I found to show the side effects and dangers of Aricept was alarming and very large. A large volume of it. But the evidence to show that Chinese medicine is useless or dangerous to people with dementia was actually non-existent. So, yes, I have searched.

EDDY MS: Okay. So - - -

DD: If that answers your question.

EDDY MS: Yes, but okay. How did you search?

…

DD: Well, how does anyone search?

…

DD: You I talk to doctors in the field and I've gone on the internet and found clinical studies that are scientific. Yes, scientific clinical studies that show what happens when you treat, for example, someone with dementia, when they get treated with acupuncture, how it helps and how it doesn't help. And there may be some studies that show that it didn't do much but, you know, there's lots of factors in play when you're doing a study, and if people know what they're doing, and [CG] and Mr Pang know, they've got a wide range of experience and a lot of experience, they've seen results with dementia first hand.

In fact, first-hand knowledge is probably better than reading any report, because you've actually seen it with your own eyes, and then you're convinced, you know it can help. Look, no one I can't play God and that's something Mr Pang often says: 'I will do my best. I'm not God but I will do my best.' No one will know for sure until [MV] tries. That's my issue. She has been she has not even been allowed to try something - - -

(T:77-79; 24.02.15)

89 We also note that DD had, without consulting the delegated guardian, booked an appointment for MV with an integrative doctor. This was seemingly on the assumption that DD would be appointed guardian on the day of the hearing (T:60; 24.02.15).

90 DD expressed the view that she was unhappy with MV's current medical treatment and wanted second opinions, and we note the following exchange in that respect:

THE D PRESIDENT

: - - - traditional treating Dr Singh. Let's just call him 'Dr Singh'.

DD: Well, that's not his speciality. He doesn't know anything about it.

THE D PRESIDENT: But he would be - - -

DD: Of course, I would we would I would liaise with a doctor. Wouldn't keep anything from them.

THE D PRESIDENT: But you wouldn't if he said, 'I don't recommend it', you wouldn't accept that recommendation.

DD: Well, probably then that's when a second opinion might come into - -

THE D PRESIDENT: And if the second opinion said, 'I wouldn't recommend it', how many opinions would it take before you said, 'All right. We won't bother.'

DD: Well, maybe two. Maybe two. Yes.

THE D PRESIDENT: All right. Well - - -

…

DD: I mean, I suppose it's a personal prerogative to get as many opinions as they like, but - - -

THE D PRESIDENT: I think that's right, but, again, just - - -

…

THE D PRESIDENT: - - - [MV's] life, how many I mean, I assume that these doctors aren't just going to give them by remote. They're going to actually want to go and visit, check, look, and so that's six, seven times she gets prodded and poked, getting to get another opinion. That's what's worrying me, and you I obviously haven't made that clear.

(T:111;24.02.15)

91 The evidence before the Tribunal suggests to us that DD has only thoroughly researched one side of the equation. DD's research of conventional medical treatments seems to have been only in relation to Aricept, a drug that MV was once prescribed and that DD believes to be harmful to her health.

92 In relation to Aricept, DD stated as follows:

… Putting aside all the research, I noticed that when they gave [MV] the Aricept, she went downhill, absolutely downhill. She was not incontinent before. I firmly believe she became incontinent as a result of Aricept, and for some reason, I don't know why, they gave her 25 milligrams of Aricept daily while the drug company itself that makes Aricept says do not give little old ladies weighing less than 54.887 kilos more than 5 milligrams of Aricept daily …

(T:39; 24.02.15)

93 DD explained how she discovered MV was being given Aricept as follows:

When I was visiting [MV] at Orelia TCP, they had the the medical book open in the kitchen where we make our coffee and tea. We're allowed to. Next to [MV] I couldn't help but notice, next to [MV's] name was 25 milligram strength.

T: 110; 24.02.2015

94 However, the delegated guardian made the following statement at the hearing:

: May I correct some inaccuracies, and especially for the transcript, as well, that there are many inaccuracies and things being said here. [MV] was never prescribed 25 milligrams of Aricept, ever, and I don't know where the information came from, but, certainly, I have never consented to that, and all the medical documentation that I have has never, ever said 25 milligrams …

(T:109; 24.02.15)

95 Furthermore, the Public Advocates report indicated that the delegated guardian is herself seeking an independent medical opinion from a Doctor who is registered in both Traditional Chinese Medicine and conventional medicine.

96 While the Tribunal expresses no view regarding the efficacy of Aricept or traditional Chinese medicine or, indeed, any other form of treatment, we do note that any medical decisions need to be made in a careful and measured way. A guardian needs to consider a range of medical evidence and assess a number of different options. We also consider that if a guardian is considering consenting to non-standard or experimental treatments he/she must, in order to make a decision in the represented person's best interests, seek objective assessments about that treatment by qualified medical practitioners with appropriate expertise to understand the potential benefits and/or detriments to a person with MV's condition.

97 We are concerned that DD has not adequately researched all medical options available to MV. We also consider that DD has fixed and unmoveable views about some treatments and has no interest in seeking, or hearing any information that might be contrary to her fixed views. Further, we are concerned that DD has made serious allegations about MV's prior medical treatment without thorough and objective investigations and when she is not well informed. We find that DD's lack of insight into MV's condition, vehement views and seeming inability to consider options for MV objectively to determine if they are, or are not in MV's best interests, make her unsuitable to be MV's guardian.

98 We are also concerned by the approach of CG throughout the hearing, who on a number of occasions interjected to answer questions on behalf of DD: see, for example, T: 9-10; 24.02.15. The way that DD allowed CG to speak for her and assume control over discussions that were not directed to her is of concern to the Tribunal in that we are concerned that CG may have significant influence over DD. While we make no finding as to whether CG is a person whose influence is necessarily negative or positive, it is not appropriate that a person who is appointed as a decisionmaker by the Tribunal is not entirely independent as a decisionmaker.

99 We have also formed the view that DD has vehement and fixed views regarding where MV is to live.

100 We note that DD's plan appears to be to move MV to the property from the residential facility. We do have evidence before us regarding MV's current views on her living arrangements.

101 The delegated guardian stated at the hearing that MV had always seemed quite happy when she had visited and not 'in a state of despair or anything' (T:34; 24.02.15).

102 In her report dated 21 January 2015, MV's care coordinator says that MV is happy in the facility and that she only talks about going home after DD has visited. DD told us that she did talk about going home with MV, and that she is often the one to bring this topic up (T:95; 24.02.15).

103 DD on the other hand says that MV is unhappy in the facility and has accused the care coordinator and the delegated guardian about lying about this (T:9899; 24.02.15).

104 We also had before us a letter from SK, a long term friend of MV. SK states in her letter:

My friend has never expressed to me that she is unhappy at her present Home with either her medical care and treatment, or a desire for a change in her medication. My opinion is that her needs are adequately met and Guardian and the Home understands these needs.

105 In response to this letter, DD stated that SK did not have regular contact with MV, and:

And this business of [SK] writing that [MV] is very happy there, well, [SK] wouldn't have a clue. [MV] as we all do, we put on our public face. [MV] is too polite to tell anyone there that she's not happy.

(T:92; 24.02.15)

106 Another long term friend of MV, PH, also spoke at the hearing. She said:

I could go along with what [SK] says because I've had contact with [MV] since we worked together from 15 to 25 years old or something, and over those years we've had close contact. We followed her around. She used to come annually to annual annual lunches. We lost touch with her from Meath Homes in Como, and, through a lot of research, we found out where she was and what I have visited her a couple of times out at - - -

(T:46; 24.02.15)

107 We prefer the evidence of the care coordinator, PH and SK, and find that MV is happy with her care and accommodation at the facility. There is currently no realistic basis on which MV could move back into her home as it is unsuitable for her current needs.

108 As previously mentioned, DD told the Tribunal at the outset of the hearing that her plan was to move MV into the property (T:9; 24.02.15). DD described the plan as follows:

So we have got a big plan, and it's I'm not saying [MV] can quickly come in today or tomorrow; certainly not. If that does happen, the house will be absolutely ready for her. Already a lot has been done. The rats aren't there, the bricks aren't crumbling, the house has been decluttered, we have to put in ramps, we have to put in an indoor toilet, but all of - - -

T: 31; 24.02.2015

109 However, when questioned as to how MV was to be cared for at the property, DD did not appear to have a clear plan in that regard. The following exchange took place at the hearing:

THE D PRESIDENT

: I know I said I hadn't any questions, but that does raise the concern that I expressed to you this morning, and that is that you still have this hope, I suppose, confidence that perhaps in the fullness of time [MV] can return home. Now, I think it's clear that she requires around the clock care. That's evident from the medical and other reports that we've got. If she went home, how would that 24 hour care manifest itself? It's clearly not [GV].

DD: No. Well, I live next door and - - -

GV: I live at the house.

THE D PRESIDENT: Understand.

DD: Yes. Of course you do.

THE D PRESIDENT: Yes. GV: Yes.

DD: …

There is also there's lots of people in Perth that use they call them au pairs. People come you might get a young woman living with you and she provides services. That actually happens in a lot of cases. You see it advertised all the time on Gumtree. They they come and live in a home and they provide some support, and you don't have to pay them as much. So that is just an option. I'm not saying it is the option, but there's many people in Perth accessing that to look after their children. And if you trust someone to look after your children why wouldn't you trust someone to look - - -

(T:92-93; 24.02.15)

110 We asked DD about what we saw as her quite fixed views that MV should return home and not stay in her current facility. DD stated:

That would be very nice. But nothing is set in stone here. I'm very flexible, and it's only [MV's] benefit that I'm thinking of here. Everything is for [MV].

(T:95; 24.02.15)

111 With respect, we do not accept this evidence, which contradicts DD's other comments at the hearing.

112 We have already noted that DD accused the care coordinator at the facility of telling lies to the Tribunal in her report. Further, DD and CG at the hearing likened the facility to a prison (T:43-44; 24.02.15). DD described MV's unhappiness at the facility as follows:

Well, she actually she's not happy there herself. Of course she's a woman who will keep her own counsel and she's a very polite lady and she's not going to be telling the people that care for her, 'Well, I don't like this place.' She's far too cultured to be talking like that, but in her heart she has said to me, 'The loneliness is profound, the staff don't have much to do with me,' and I believe that because the staff don't have the time.

(T:32-33; 24.02.15)

113 We therefore formed the view that it was unlikely that DD was open to the option of leaving MV at the current care facility. We pressed DD about this at the hearing:

THE D PRESIDENT

: - - - how can you possibly, in any conscience, leave [MV] where she is? If [the care coordinator] lies to you about her condition, that surely tells me that your first thing to do tomorrow will be to go and tell [MV] to pack and you're going.

DD: Well, it wouldn't no, it wouldn't be tomorrow.

THE D PRESIDENT: So you could still well, whenever; tomorrow or the day after.

DD: No. Look - - -

THE D PRESIDENT: What would happen? Just talk me through this for a second. If because, as I say, it's just interesting. Mr Aitken pointed out that you're, you know, clearly unhappy with the Public Advocate and everybody else, basically, who says that you're wrong seems to get that broadside from you. Just tell me - - -

DD: Yes.

THE D PRESIDENT: What would happen? Take me through your timetable. Let's forget about the administration for the moment. Let's just look at the guardianship.

DD: Yes.

THE D PRESIDENT: If you're given the same powers as the Public Advocate has got at the moment, which is to decide where [MV] is going to live - - -

DD: Yes.

THE D PRESIDENT: What's your first step?

DD: She would she will stay absolutely exactly where she is until - - -

THE D PRESIDENT: Under the care of somebody who has been telling you, the guardian, lies.

DD: That's okay. Look, people tell little white lies. It's all right. I'm sure every single one of us in this room has told a little white lie in our life. That's okay. They feed her.

THE D PRESIDENT: That might - - -

DD: They wash her.

EDDY MS: Is it a white lie to tell the [T]ribunal, in evidence before the [T]ribunal - - -

(T:100-101; 24.02.15)

114 We simply do not believe that DD would leave MV in the facility, which she likens to a prison. We believe that DD has come to the conclusion that MV will return to live to the property, and that DD is fixed in that view.

115 We have come to the conclusion that DD's fixed views on this topic make her unsuitable to act as MV's guardian.

Conclusion

116 No other person has put themselves forward as willing to take on the role of guardian or administrator for MV. As we have found DD unsuitable to be appointed, there is no option but to appoint the Public Trustee and the Public Advocate as administrator and limited guardian respectively.

When should orders be reviewed?

117 Section 84 of the GA Act provides that the Tribunal, when making a guardianship or administration order, must specify a period, not exceeding five years from the date of the order, within which the order or orders shall be reviewed.

118 It is relevant to our decision on this issue, that on the evidence available to us, MV's capacity is impaired by a condition that is considered to be permanent and progressive. In our view, review of the orders in five years is appropriate.

Declaration and orders

In relation to matter GAA 57 of 2015, which relates to administration, the Tribunal makes the following order:

The Tribunal declares that the represented person:

(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and

(b) is in need of an administrator of her estate,

and the Tribunal orders that:

1. The order is confirmed as follows:

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. This order is to be reviewed by 6 May 2019.

In relation to GAA 58 of 2015, which relates to guardianship, the Tribunal makes the following order:

The Tribunal declares that the represented person:

(a) is incapable of looking after her own health and safety;

(b) is unable to make reasonable judgments in respect of matters relating to her person;

(d) is in need of a guardian,

and the Tribunal orders that:

1. The order is confirmed as follows:

The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be 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;

(b) to decide with whom the represented person is to live;

(c) subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;

(d) to determine what contact, if any, the represented person should have with others and the extent of that contact; and

(e) to decide which services the represented person requires.

The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.

2. This order is to be reviewed by 6 May 2019.

I certify that this and the preceding [118] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE T SHARP, DEPUTY PRESIDENT