DWB - [2015] WASAT 3 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: DWB [2015] WASAT 3

MEMBER: MS F CHILD (MEMBER)

HEARD: 19 SEPTEMBER 2014

DELIVERED : 15 JANUARY 2015

FILE NO/S: GAA 3472 of 2014
GAA 3473 of 2014
GAA 3474 of 2014
GAA 3873 of 2014

MATTER: DWB
Represented person

Catchwords:

Guardianship and administration Applications for review of guardianship order for appointment of administrator and for intervention in enduring power of attorney Represented person with longstanding diagnosis of multiple sclerosis and associated cognitive impairment Need for supported accommodation Need for guardian to determine where represented person should live Ambiguity as to commencement of enduring power of attorney Ambiguity as to whether enduring power of attorney in effect Need for administrator Attorneys appointed under enduring power of attorney appointed as joint administrators of estate Revocation of enduring power of attorney

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 64(1), s 77, s 77(1)(a), s 104(1), s 104(2), s 108, s 109, s 109(1)(c), s 110ZD, s 110ZD(3)(b)
Mental Health Act 1996 (WA)

Result:

Guardianship orders made
Administration order made
Enduring power of attorney revoked

Summary of Tribunal's decision:

On applications by the Public Advocate, who was the guardian of the represented person, DWB, the Tribunal amended the guardianship order to include authority to decide where and with whom the represented person should live. The represented person had been assessed as suffering a significant cognitive impairment associated with his longterm diagnosis of multiple sclerosis. The Tribunal accepted the submissions of the Public Advocate that the represented person had no insight into his care needs and did not appreciate the risks to his health and safety if he left the nursing home in which he lived to live independently as he proposed.
The Tribunal appointed administrators of the represented person's estate as it accepted the submission of the Public Advocate that because of an omission in the completion of an enduring power of attorney made by the represented person in 2008, there was uncertainty as to the commencement of the enduring power of attorney. Additionally, the represented person did not accept that he had any cognitive impairment and maintained that he was managing his financial affairs. Because of this, there was ambiguity about whether the attorneys could or should act under the enduring power of attorney. The Tribunal considered that because of this uncertainty, the represented person was in need of an administrator of his estate. The Tribunal appointed the attorneys who had been appointed under the enduring power of attorney as joint administrators of the represented person's estate as it accepted that this reflected the wishes of the represented person as to the management of his financial affairs. The enduring power of attorney was revoked to avoid any ambiguity.

Category: B

Representation:

Counsel:

Represented person : Ms F Ottolini

Solicitors:

Represented person : Northern Suburbs Community Legal Centre

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

DB [2013] WASAT 41

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Applications were filed with the Tribunal by the Public Advocate on 20 August 2014 seeking review of a guardianship order which had appointed the Public Advocate as limited guardian of DWB (represented person). The represented person is a man with a 30‑year history of multiple sclerosis and associated cognitive impairment. The Tribunal had, on 5 November 2013, made a limited guardianship order in favour of the Public Advocate with the function to determine the services to which the represented person should have access, including to ambulance services. In the applications filed in August 2014, the Public Advocate also sought the appointment of an administrator of the estate of the represented person, and for intervention, pursuant to s 109(1)(c) of the Guardianship and Administration Act 1990 (WA) (GA Act). In particular, the Public Advocate sought revocation of an enduring power of attorney (EPA) executed by the represented person in November 2007 by which he appointed MB and LZ as his joint and several attorneys. The Public Advocate submitted that, because of the failure to make an election in the acceptance of the EPA by the attorneys, there was uncertainty as to when it came into force.
The applications were heard on 19 September 2014[CF1] . The represented person appeared and was legally represented at the hearing. The Tribunal also heard from the Public Advocate's delegated guardian (guardian); a social worker from the facility in which the represented person lived; CB, the spouse of the represented person; MB, the son of the represented person; and LZ, a long‑time friend of the represented person.
At the conclusion of the hearing, the Tribunal substituted a new guardianship order which reappointed the Public Advocate as limited guardian of the represented person, with functions to decide where and with whom he was to live and to determine the services to which he should have access. CB was appointed as a limited guardian to make treatment decisions on the represented person's behalf. Those orders were made for review by 19 September 2019.
The decisions in respect of the applications for the appointment of an administrator and for intervention under s 109(1)(c) of the GA Act concerning the EPA made by the represented person were adjourned. On 22 September 2014, the Tribunal determined the applications and issued orders appointing LZ and MB as joint plenary administrators of the estate. The administrators were authorised to expend $2,000 per annum on gifts on behalf of the represented person. The EPA dated 10 November 2007 by which the represented person had appointed LZ and MB as his attorneys was revoked.

Legislation

To appoint an administrator of the estate of a person, the Tribunal must be satisfied that that the person is unable, by reason of a mental disability, to make reasonable judgments about any or all of his estate, and is in need of an administrator of his estate: s 64(1) of the GA Act.
To appoint a guardian or to confirm an order on review, the Tribunal must be satisfied that the represented person is unable to look after his own health and safety, is unable to make reasonable judgments about his person, or is in need of oversight and care in the interests of his own health and safety, and is in need of a guardian: s 43(1)(b) of the GA Act.
Section 109 of the GA Act provides that the Tribunal may, on the application of a person with a proper interest, intervene in an EPA to vary or revoke the power.
These provisions are subject to the principles set out in s 4 of the GA Act which provide the following:
…
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of ‑
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
…

Is the represented person a person for whom guardianship and administration orders may be made?

The Tribunal first appointed the Public Advocate as guardian for the represented person by orders made in February 2013. The Tribunal published written reasons for the decision: DB [2013] WASAT 41. In that decision, the Tribunal found that the represented person is a person for whom a guardianship order can be made in that he was not able to look after his own health and safety, was not able to make reasonable judgments about his person and was in need of oversight and care in the interests of his own health and safety.
In that decision, the Tribunal considered the medical evidence, and other professional evidence including a report of AC, a neuropsychologist, who had assessed the represented person in January 2013. AC reported that:
The [represented person] experienced significant cognitive difficulties, reduced working memory, several executive difficulties, that is, problems with mental flexibility, inhibition, nonverbal reasoning, problem solving.
AC further noted that there was 'evidence of fluctuating attention, disinhibition, poor self-monitoring and difficulty with comprehending more lengthy and complex information', and that the represented person had:
… significant difficulties understanding and retaining and integrating information into his reasoning. This severely limited his ability to weigh up and consider alternatives and potential consequences.
At that time, AC recommended that a plenary guardian be appointed for the represented person.
Consistent with the principles set out in s 4 of the GA Act, the Tribunal did not make a plenary order in 2013 but appointed the Public Advocate as limited guardian to accept services on behalf of the represented person in an effort to enable him to remain living in his independent living unit, as was his wish. The Tribunal finds that AC's assessment is sufficiently current and relies on it to find that the represented person remains a person for whom a guardian may be appointed.
In the report of AC, the question of the represented person's ability to manage his finances was considered. AC noted that the represented person:
… seemed to have reasonable knowledge of his assets, expenses and finances, although his report of the amount of funds in his superannuation shares differed somewhat from what [CB] reported.
The represented person was also reported to have been incorrect in reporting who he had appointed as his attorney under his EPA.
AC stated:
I understand that the State Administrative Tribunal [is] presently considering only Guardianship. [The represented person] is clearly well supported at the present time by [CB] in managing his finances however in the light of his situation and of the available evidence concerns are raised about how he might handle more complex financial decisionmaking, despite his sound numerical abilities.
AC went on to say:
There is clearly a need for careful monitoring of this situation over time to establish whether more formal support might be required.
Based on AC's assessment of the significant cognitive difficulties experienced by the represented person, his reduced working memory and the reported difficulties with executive functioning and problem‑solving, the Tribunal finds that the represented person is a person for whom an administration order may be made, in that, by reason of his mental disability ‑ being his 30‑year history of multiple sclerosis and associated cognitive impairment he is unable to make reasonable judgments about more complex matters in relation to his estate.

Does the represented person need a guardian and an administrator of his estate?

In respect of the current applications, the guardian indicated that the represented person had been admitted to hospital under the Mental Health Act 1996 (WA) on 24 July 2014. She reported that discharge planning was conditional on an application being made to the Tribunal for a guardian to be appointed with authority to determine where and with whom the represented person should live, as the existing guardianship order was limited only to the acceptance of services on behalf of the represented person. The application for review of the order was initiated because the represented person was considered to lack insight into his care needs and was expressing the wish to live independently and not return to the facility.
The represented person had been admitted to the facility some months before the recent hospital admission after a long period in another hospital during which time he had refused admission to residential care and maintained that he could care for himself.
The guardian said the represented person:
•did not acknowledge any limitation on his abilities;
•felt he could manage all of his daily care needs living by himself without any assistance;
•was very dissatisfied with the facility; and
•said that he 'felt like a prisoner' there.
The guardian reported that the represented person was continually accessing taxis to take him to look at units to either rent or to purchase, and that he was 'in a constant state of readiness' to leave the facility.
Given the represented person's dissatisfaction with the facility, the guardian reported that she had discussed accommodation alternatives with LZ, one of the attorneys appointed under the EPA. She said that LZ had said that the attorneys had tried to maintain the represented person in his own home prior to admission to hospital but that everything had been unsuccessful, with the represented person refusing to engage additional services. The guardian reported that both CB and LZ stated that they had tried 'absolutely everything' to appease the represented person regarding his choice of where he would live but every option presented by them had been dismissed by the represented person on the basis of cost. They said that they had run out of options.
The guardian said that in addition to the function to decide where the represented person should live, a guardian should have power to make treatment decisions for the represented person. CB had reported that the doctors treating the represented person during the present admission questioned his capacity to consent to his treatment. CB said she would be willing to play this role in the future. Although she and the represented person were reported to no longer be a couple, the guardian noted that CB continued to be involved in the represented person's life and was very supportive of him.
In respect of the need for an administrator of the estate of the represented person, the guardian said that the represented person had made an EPA on 10 November 2007 and had appointed his son, MB, and his friend, LZ, as joint and several attorneys.
In clause 4 of the EPA, there is an election by the represented person that the EPA will continue in force notwithstanding his subsequent legal incapacity. However, in the acceptance signed by the attorneys, no election is made, as required, as to the commencement of the EPA.
LZ reported at the hearing that the EPA had been registered with Landgate.
The Public Advocate had previously, in mid 2014, made an application for the appointment of an administrator for the estate of the represented person but had withdrawn the application when the EPA of the represented person was identified as a less restrictive alternative to the making of an administration order. However, the guardian said that, having reconsidered the EPA, she now had a concern that the failure to elect the commencement of the EPA in the acceptance might affect the validity of the EPA. She said that, should the represented person enter into a contract and attempts be made by the attorneys to use the EPA to act for the represented person regarding the contract, the EPA could potentially be challenged by the other party. There was, in her submission, a need to ensure that the represented person was protected in these circumstances. The guardian reported that, when interviewed, the represented person could not recall executing the EPA and he did not recall appointing his friend, LZ, and his son, MB, as joint and several attorneys. She reported that the represented person had stated that he believed he managed his own financial affairs and was more than capable of doing so. LZ was said to be the person predominantly dealing with the financial affairs of the represented person, and he had told the guardian that he did not consider that the represented person was now capable of managing his own financial affairs. The guardian said she had discussed with both attorneys whether they would be willing to be appointed as administrators and they had agreed to be appointed.
In respect of the application for intervention in the EPA, the guardian said this had been lodged so that the EPA could be revoked, to provide certainty about the authority under which the represented person's affairs were managed. LZ said during the hearing that the parallel authority provided by the EPA the power of both the attorneys to act under the EPA whilst the represented person's authority to deal with his own affairs was maintained ‑ had been an issue. That issue had largely been managed by him by 'risk management' by attempting to mitigate or reduce the amount of exposure that the represented person had to financial loss.
It was submitted for the represented person that the EPA executed by him was a declaration of his wishes and would provide for the management of his affairs but for the failure to properly complete the formalities. As an expression of his wish, it should be given effect to. It was submitted that the Tribunal should vary the acceptance to rectify the lack of election to make the EPA consistent in its terms. In response, the guardian questioned whether the EPA could provide sufficient protection for the represented person in respect of entering into or, if necessary, avoiding contracts.
Section 77 of the GA Act provides that where there is in force a declaration appointing an administrator, the represented person is not able to enter into a contract: see s 77(1)(a). Additionally, because of the operation of the Supreme Court Rules, an EPA is not a mechanism by which a person under disability can either sue or defend proceedings by next friend or guardian ad litem.
In support of the appointment of an administrator, the social worker for the facility submitted that because of the number of real estate agents who had been contacted by the represented person and because he continually visited and viewed different properties, there were concerns that he was potentially vulnerable to financial exploitation. The social worker reported that real estate agents had attended the facility and one had taken the represented person out in a wheelchair taxi to view properties. The social worker said that the real estate agent had not been fully aware of the represented person's care needs or his situation and because of this she considered that the represented person was vulnerable, particularly because the represented person did not accept that he needed care and assistance. She said there was a risk of him entering into a contract to purchase an unsuitable property which she said was a 'huge concern'. She said she did not want to prevent the represented person from viewing properties, but asserted that there needed to be some protection for him and for his attorneys if decisions were made by him that were not in his best interests. LZ acknowledged that there were 'sharks' who might take advantage of the represented person's situation. He restated his view that there was a need to protect the represented person's interests. LZ submitted that it would be better for the Tribunal to vary the EPA to reflect the original wishes as expressed by the represented person. He asserted that there was some existing protection for the represented person as he could not readily access funds and, in the worst case scenario, if a property was purchased, it could later be sold. LZ acknowledged that the represented person might suffer a financial loss following resale. The represented person confirmed that he was actively looking for properties in which to live. He said he would obtain advice from his financial advisor regarding the purchase. Through his counsel, the represented person said that he was willing to cooperate with the Public Advocate's exploration of alternative supported accommodation options which met his needs; however, this was inconsistent with his own statements made in the hearing.

The represented person supported the appointment of his spouse as the decisionmaker for medical treatment.

Guardianship

The order the subject of the review for the appointment of the Public Advocate as guardian of the represented person with the authority to determine services was determined by the Tribunal to be the least restrictive order which met the needs of the represented person at that time. At the time of the original application, the represented person was living in an independent unit but was refusing services necessary to manage his falls risk and his incontinence. The appointment of the Public Advocate to accept additional services on his behalf was an effort to enable him to retain his accommodation if services to assist him to live independently were provided.
The Tribunal was told that the represented person continued to refuse services and was eventually admitted to hospital, following which an application was made for review of the guardianship order and the appointment of an administrator in July 2014. The applications were withdrawn by the Public Advocate at that hearing following the represented person agreeing to enter residential care. The most recent applications have been made following the admission of the represented person to hospital from that facility. The represented person continues to refuse to accept that he requires assistance with the management of his activities of daily living because of his disabilities. His decision to leave the facility and live independently is not supported by any of the health professionals who have assessed him, or by any member of his family or his supportive friend. The Tribunal accepts the submission of the Public Advocate that authority is required to substitute the decision of the represented person as to where he should live.
The Tribunal also accepts the evidence given in 2012 by Dr SM that the represented person lacks capacity to make reasonable judgments about his person and that he is not capable of making treatment decisions. This is consistent with the evidence of Dr CB who, at the time of the original application, was his treating doctor. At the time of the original orders, the represented person was reported to be appropriately seeking medical treatment for immediate health concerns and the treatment of pain, and so a guardian was not appointed for the purpose of consenting to medical treatment as less restrictive alternatives appeared to be available.
Section 110ZD of the GA Act provides for treatment decisionmaking for a patient incapable of making treatment decisions by a person responsible, and can be a less restrictive alternative to the making of a guardianship order. In the present circumstances of the represented person, the person responsible in the hierarchy in the section is his 'nearest relative': s 110ZD(3)(b) of the GA Act. The nearest relative of the represented person is his son, MB, as the represented person and his former spouse, CB, are reported to no longer be a couple, although she maintains involvement and care for him. Given this, and the position that CB is acknowledged by all parties to be the most appropriate person to make treatment decisions on behalf of the represented person, the Tribunal is satisfied that a guardian is needed, as the less restrictive option is not appropriate in these circumstances.
The Public Advocate is confirmed as the guardian to consent to services, and the additional function to determine where and with whom the represented person is to live is included in the orders made on review. As in the original appointment of the Public Advocate, no one else proposed their appointment as guardian for these functions and all parties supported the appointment of the Public Advocate as guardian.
CB is appointed limited guardian to make treatment decisions on the represented person's behalf. The guardianship orders are to be reviewed in 2019.

Administration

The Tribunal is satisfied that the represented person is in need of an administrator of his estate.
The submission that the Tribunal should exercise its powers in s 109(1)(c) of the GA Act to vary the EPA and, in effect, rectify the failure to elect by the attorneys is not accepted.
The provisions for the execution of an EPA found in s 104(1) of the GA Act and compliance with the statutory requirements found in s 104(2) of the Act in respect of the acceptance are fundamental to the creation of an EPA. The wording of s 104(2) of the GA Act provides that an instrument created by the donor is not effective to create an effective EPA unless there is endorsed on it, or annexed to it, a statement of acceptance in the form, or substantially in the form, of Form 2 in Schedule 3. The failure to elect the commencement by the attorneys means that there is a question of whether an EPA has been created by the represented person, despite it being accepted for registration by Landgate. The Tribunal does not have power to declare the validity of an EPA; this is a matter which is within the jurisdiction of the Supreme Court. Even if the acceptance by the attorneys is a 'term' of the EPA which can be varied pursuant to s 109(1)(c) of the GA Act, it is not appropriate to do so since such a variation would be an attempt to retrospectively alter the effectiveness of the instrument and therefore is more appropriately dealt with in that jurisdiction.
The Tribunal accepts the submission of the Public Advocate that there is doubt about the validity of the EPA which cannot be resolved by the Tribunal. It is not in the represented person's best interests that there be any doubt about the EPA or ambiguity in the management of his financial affairs.
The Tribunal is satisfied that the EPA executed by the represented person in 2007 is an authentic expression of his wish that LZ and MB act as his attorneys, and the Tribunal finds that they have acted, according to their judgment, in his best interests to preserve his autonomy. The Tribunal accepts the submission of the Public Advocate and finds that the EPA does not provide sufficient protection of the represented person's estate. This is so, given the ambiguity referred to above and the potential for parallel operation by him in light of his refusal to accept that he has any impairments of his judgment. These factors potentially place him at risk of financial loss; in particular, if he entered into a contract to purchase a property ‑ in which he would be unable to live because of his significant physical disabilities ‑ which might then be sold at a loss.
For these reasons, the Tribunal considers that the represented person is in need of an administrator of his estate and appoints LZ and MB as joint plenary administrators. The administrators are authorised to make gifts on behalf of the represented person to an amount of $2,000 as the represented person indicated that this was his wish in the hearing.
The EPA dated 10 November 2007 which appoints LZ and MB jointly and severally is revoked pursuant to s 108 of the GA Act as inconsistent with the order made appointing administrators. The Tribunal accepts the submissions of the Public Advocate that the revocation of the EPA is necessary to make clear the authority under which LZ and MB act.

Orders

The Tribunal makes the following orders:
On the application for review under s 86 of the Guardianship and Administration Act 1990 (WA) of an order dated 5 November 2013 concerning the represented person heard before Member F Child on 19 September 2014
The Tribunal declares that that represented person:
(a)is incapable of looking after his own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to his person;
(c)is in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
(d)is in need of a guardian,
and the Tribunal orders that:
1.The order is revoked and a guardianship order in the following terms is substituted for it:
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; and
(c)To determine the services to which the represented person should have access.
2.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.
3.CB of [address deleted] is appointed limited guardian of the represented person with the following function:
(a)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.
4.This order is to be reviewed by 19 September 2019.

I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER

[CF1]