EB
[2016] WASAT 103
•26 AUGUST 2016
EB [2016] WASAT 103
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 103 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:3681/2015 | 9 NOVEMBER 2015 AND 1 APRIL 2016 FINAL WRITTEN SUBMISSIONS RECEIVED 19 APRIL AND 4 MAY 2016 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 26/08/16 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Guardianship and Administration Orders made Enduring powers of attorney and enduring powers of guardianship dismissed Other applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | EB |
Catchwords: | Guardianship and administration Enduring power of guardianship Enduring power of attorney Dementia Capacity Family conflict Undertakings proposed Limited guardianship order made subject to conditions Plenary administration order made with directions Enduring power of guardianship revoked Enduring power of attorney revoked Attorney not required to file records and accounts Operation of the enduring power of attorney did not warrant further explanation or inquiry |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 44(1)(b), s 45, s 47(1), s 64, s 68, s 69, s 71, s 72, s 80, s 97(1)(b)(iii), s 97(b)(i), s 108(1a), s 109(1)(a), s 109(1)(b)(iii), s 109(1)(c), s 110(K)(1), s 110(N)(1)(a), s 110ZD |
Case References: | EW [2010] WASAT 91 KS [2008] WASAT 29 |
Summary | EB, a 91 year old man with a diagnosis of dementia, had lived in a nursing home since June 2015.,EB had been married for over 30 years to MB. He had four children from a previous marriage. His first wife died in 1979.,Prior to his placement in a nursing home EB lived with MB in their home.,EB's children (applicants) made seven applications in respect of him pursuant to the Guardianship and Administration Act 1990 (WA).,The applicants sought the making of guardianship and administration orders, revocation of an enduring power of attorney and enduring power of guardianship, an order varying the terms of an enduring power of attorney, orders declaring the enduring power of guardianship invalid and an order requiring MB to produce records and accounts of the transactions she undertook as EB's attorney.,A feature of the applicants' evidence was their longstanding view of the alleged negative influence MB had on EB and his relationship with his children. The applicants' depth of feeling was such that their primary position was that MB should not play any part in the decision-making for EB. What the applicants alleged was that MB's disregard for EB's current wellbeing and interests was a continuation of what had been happening for the last 30 years.,In the course of the proceeding before the Tribunal, MB proposed herself to be appointed EB's plenary guardian and administrator on the basis of giving certain undertakings which would give the applicants access to medical and financial information about EB.,Although the applicants did not want MB to have any decisionmaking authority, they proposed that restrictions be placed on her authority should the Tribunal appoint her.,It was the expressed wish of EB that MB make his personal and financial decisions although the applicants contended that he had long been overborne by MB and would do things to appease her.,The Tribunal decided to appoint MB as EB's limited guardian to decide his ongoing accommodation and medical needs. The appointment was conditional on informing a granddaughter of EB who had been nominated by the applicants as a potential guardian, of any proposed change in his accommodation and permitting her to have access to EB's medical records and be able to discuss his medical needs with his doctors, health professionals and MB.,The Tribunal also decided to appoint the Public Advocate as EB's limited guardian to decide the contact he should have with his family. Family outings which included EB were a contentious issue for the applicants and the Tribunal accepted their submission that the conditions and restrictions MB proposed to place on such outings were unwieldy, inflexible and difficult to implement in any practical way.,The enduring powers of guardianship were revoked.,As regards EB's estate, the Tribunal decided to appoint MB as his plenary administrator and direct that she provide one of EB's sons (who had been EB's joint and several attorney with MB on an enduring power of attorney), with a copy of the accounts she would be required to file with the Public Trustee under s 80 of the Act.,MB had proposed to provide the accounts by way of an undertaking, however the Tribunal decided that the obligation should be in the form of a direction.,The enduring powers of attorney were revoked.,The Tribunal dismissed the application which sought to have MB provide records and accounts of the transactions she undertook as EB's attorney.,The applicants were unable to give any evidence of irregular transactions or evidence of an unusual diminution in EB's estate. The application was speculative and did not support the submission of the applicants that the operation of the enduring power of attorney warranted further explanation or inquiry. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : EB [2016] WASAT 103 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 9 NOVEMBER 2015 AND 1 APRIL 2016
- FINAL WRITTEN SUBMISSIONS RECEIVED
19 APRIL AND 4 MAY 2016
- GAA 3682 of 2015
GAA 3684 of 2015
GAA 3686 of 2015
GAA 3687 of 2015
GAA 3689 of 2015
GAA 3690 of 2015
- Represented Person
Catchwords:
Guardianship and administration Enduring power of guardianship Enduring power of attorney Dementia Capacity Family conflict Undertakings proposed Limited guardianship order made subject to conditions Plenary administration order made with directions Enduring power of guardianship revoked Enduring power of attorney revoked Attorney not required to file records and accounts Operation of the enduring power of attorney did not warrant further explanation or inquiry
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 44(1)(b), s 45, s 47(1), s 64, s 68, s 69, s 71, s 72, s 80, s 97(1)(b)(iii), s 97(b)(i), s 108(1a), s 109(1)(a), s 109(1)(b)(iii), s 109(1)(c), s 110(K)(1), s 110(N)(1)(a), s 110ZD
Result:
Guardianship and Administration Orders made
Enduring powers of attorney and enduring powers of guardianship dismissed
Other applications dismissed
Summary of Tribunal's decision:
EB, a 91 year old man with a diagnosis of dementia, had lived in a nursing home since June 2015.
EB had been married for over 30 years to MB. He had four children from a previous marriage. His first wife died in 1979.
Prior to his placement in a nursing home EB lived with MB in their home.
EB's children (applicants) made seven applications in respect of him pursuant to the Guardianship and Administration Act 1990 (WA).
The applicants sought the making of guardianship and administration orders, revocation of an enduring power of attorney and enduring power of guardianship, an order varying the terms of an enduring power of attorney, orders declaring the enduring power of guardianship invalid and an order requiring MB to produce records and accounts of the transactions she undertook as EB's attorney.
A feature of the applicants' evidence was their longstanding view of the alleged negative influence MB had on EB and his relationship with his children. The applicants' depth of feeling was such that their primary position was that MB should not play any part in the decision-making for EB. What the applicants alleged was that MB's disregard for EB's current wellbeing and interests was a continuation of what had been happening for the last 30 years.
In the course of the proceeding before the Tribunal, MB proposed herself to be appointed EB's plenary guardian and administrator on the basis of giving certain undertakings which would give the applicants access to medical and financial information about EB.
Although the applicants did not want MB to have any decisionmaking authority, they proposed that restrictions be placed on her authority should the Tribunal appoint her.
It was the expressed wish of EB that MB make his personal and financial decisions although the applicants contended that he had long been overborne by MB and would do things to appease her.
The Tribunal decided to appoint MB as EB's limited guardian to decide his ongoing accommodation and medical needs. The appointment was conditional on informing a granddaughter of EB who had been nominated by the applicants as a potential guardian, of any proposed change in his accommodation and permitting her to have access to EB's medical records and be able to discuss his medical needs with his doctors, health professionals and MB.
The Tribunal also decided to appoint the Public Advocate as EB's limited guardian to decide the contact he should have with his family. Family outings which included EB were a contentious issue for the applicants and the Tribunal accepted their submission that the conditions and restrictions MB proposed to place on such outings were unwieldy, inflexible and difficult to implement in any practical way.
The enduring powers of guardianship were revoked.
As regards EB's estate, the Tribunal decided to appoint MB as his plenary administrator and direct that she provide one of EB's sons (who had been EB's joint and several attorney with MB on an enduring power of attorney), with a copy of the accounts she would be required to file with the Public Trustee under s 80 of the Act.
MB had proposed to provide the accounts by way of an undertaking, however the Tribunal decided that the obligation should be in the form of a direction.
The enduring powers of attorney were revoked.
The Tribunal dismissed the application which sought to have MB provide records and accounts of the transactions she undertook as EB's attorney.
The applicants were unable to give any evidence of irregular transactions or evidence of an unusual diminution in EB's estate. The application was speculative and did not support the submission of the applicants that the operation of the enduring power of attorney warranted further explanation or inquiry.
Category: B
Representation:
Counsel:
Represented Person : N/A
MB : Mr M Curwood
Solicitors:
Represented Person : N/A
MB : Frichot & Frichot
Case(s) referred to in decision(s):
EW [2010] WASAT 91
KS [2008] WASAT 29
Background
1 EB is a 91 year old man who has a diagnosis of dementia likely caused by Alzheimer's disease. He lives in a nursing home and has done so since June 2015.
2 EB has been married for 31 years to MB. He has four children from a previous marriage. His first wife died in 1979.
3 EB's children are his daughters JT and ET both of whom live in New South Wales and the sons, CB, who lives in the south west of Western Australia and AB, who lives outside of Australia.
4 The children of EB (the applicants) have made seven applications (applications) concerning him pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
5 The applications were referred to the Public Advocate for investigation and report: s 97(1)(b)(iii) of the GA Act.
6 The applications were heard on 9 November 2015 (first hearing) and 1 April 2016 (second hearing). Further written submissions were received on 19 April 2016 and 4 May 2016.
7 The hearings were attended by the applicants, MB, RT (daughter of MB), GT (son-in-law), AC and MCT (granddaughters of EB) and GC (representative from the Office of the Public Advocate (Public Advocate).
8 MB was represented by counsel.
Enduring power of attorney
9 On 21 June 1996, EB executed an enduring power of attorney (first EPA) appointing MB and his son AB as joint and several attorneys subject to certain restrictions.
10 On 16 June 2014, EB executed another enduring power of attorney (second EPA) appointing MB as his sole attorney without restriction. The instrument was witnessed by EB's then general practitioner, Dr G and filed with the Registrar of Titles.
Enduring power of guardianship
11 On 21 August 2010, EB purportedly executed an enduring power of guardianship appointing MB as his enduring guardian (first EPG). However, it seems that a witness to the instrument observed that it was actually executed on 24 August 2010.
12 To overcome the apparent deficit in the first EPG, on 24 August 2010 EB executed another enduring power of guardianship appointing MB as his enduring guardian (second EPG).
The applications
13 The applications seek the following:
• Revocation of the first EPG and second EPG;
• Declaration of invalidity of the first EPG and second EPG;
• Varying the terms of the first EPA by removing MB as attorney;
• Revoking the second EPA;
• Requiring MB, as attorney under the first EPA and second EPA, to file with the Tribunal and serve on the applicants a copy of all records and accounts kept by her of dealings and transactions made by her in connection with the power;
• The appointment of a guardian; and
• The appointment of an administrator of EB's estate.
Relevant legislation
14 The primary concern of the Tribunal is the best interests of EB: s 4(2) of the GA Act.
15 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of EB as expressed, in whatever manner, at the time, or as gathered from EB's previous actions: s 4(7) of the GA Act.
16 EB is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
17 Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for EB unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments about matters relating to his person; or is in need of oversight care or control in the interests of his own health and safety or for the protection of others.
18 Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of EB unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
19 Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
20 If a finding of incapacity is made in respect to EB, the Tribunal must further determine whether he is in need of guardianship and administration orders. If the needs of EB can be met in a manner less restrictive of his freedom of decision and action, then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
21 If the Tribunal decides that EB is in need of guardianship and administration orders, it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be, and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 of the GA Act.
22 As to the authority given to a guardian, if a limited order is sufficient to meet the needs of EB, then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on EB: s 4(5) and s 4(6) of the GA Act.
23 The Tribunal may make an order revoking an enduring power of guardianship or declare that it is valid or invalid: s 110N(1)(a) and s 110K(1) of the GA Act.
24 The Tribunal may make an order varying the terms of an enduring power of attorney: s 109(1)(c) of the GA Act.
25 The Tribunal may make an order revoking an enduring power of attorney: s 109(1)(c) of the GA Act. If an administration order is made and the continued operation of an enduring power of attorney would be inconsistent with the functions of the administrator, the Tribunal must revoke the power or vary the enduring power of attorney to remove the inconsistency: s 108(1a) of the GA Act.
26 The Tribunal may make an order requiring an attorney to file with the Tribunal, and serve on an applicant, a copy of all records and accounts kept by them of dealings and transactions made by them in connection with the power: s 109(1)(a) of the GA Act.
EB's capacity: evidence
27 The Tribunal has before it, reports of June 2010 and October 2010 from Dr RC, Consultant Geriatrician. At that time, EB was assessed as having moderate memory loss, more marked for recent events, but that his orientation was good and problemsolving only slightly impaired. There was evidence to suggest shortterm memory impairment with preservation of some executive function. The testing was said to be consistent with a diagnosis of medial temporal lobe dysfunction. The cognitive impairment was mild but was considered almost certainly due to prodromal Alzheimer's disease.
28 Reports from a senior social worker with an Aged Care Assessment Team from December 2014 and September 2015 states that EB, whilst still living at home with MB, had experienced physical and cognitive decline in the previous 12 months with hospital admissions due to falls, constipation and vomiting. At that time, he required full assistance with showering and dressing and his medications were supervised by MB. He was said to be dependent on MB for shopping and meal preparation as it was considered no longer safe for him to use the kitchen. The report from September 2015 states that EB presented as confused but cooperative and no behavioural issues were noted.
29 The report of EB's general practitioner, Dr B, in September 2015, assesses EB as having progressed to advanced dementia requiring full nursing care for all his activities of daily living. Dr B opines that EB would not be able to make a meaningful contribution to the Tribunal proceedings.
30 A report from September 2015 by the facility manager of the nursing home where EB lives, states that he is disoriented to place and has partial orientation to people. EB appears confused, wanders and gets lost and requires redirection from staff. His cognitive functioning is reported to improve during the day but deterioration is evident in the evenings. EB responds to simple two step instructions and needs assistance with his activities of daily living.
31 Although the applicants (EB's children) are of the view that EB is in need of someone to make his personal and financial decisions, some of their evidence suggests a belief that he has a residual capacity. For example, ET states in a written submission, that whilst acknowledging EB has been diagnosed with Alzheimer's disease since 2010 and has short term memory loss, he was able to have a rational conversation with her for over an hour, could follow conversations and give thoughtful, decisive answers.
32 Similarly, AB states that although EB has shortterm memory loss and is in need of ongoing care, the last time he visited, EB was able to defeat him in a game of chess.
33 JT states that in her view EB's decline is largely a consequence of:
… the assumed helplessness model which [MB] has continually imposed on Dad, and promoted to others in his presence, in a concerted, domineering way since 2008[.] (Submission 16 October 2015).
34 Notwithstanding, the applicants also contend that EB did not have full legal capacity to execute the first EPG, second EPG and second EPA given the diagnosis by Dr RC of early Alzheimer's disease. This is disputed by MB who submits that Dr C's assessment refers only to symptoms that might have indicated the beginnings of a dementia.
35 The Public Advocate interviewed EB on 23 October 2015. EB was unable to say whether he owned property and could only say that he thought he had signed the second EPA (recognising his signature) after being presented with a copy of the document. He remembered his children and MB.
The need for orders: evidence and submissions of the applicants
36 AB alleges that MB has abused her role as enduring guardian and attorney by placing unnecessary and unreasonable restrictions on the three pillars of EB's belief system, namely access to his family, his faith and the outdoors.
37 JT states:
… the family members do not want to be subjected after 30 years of it, we don't want to be subjected any longer to [MB]'s power play. We have always questioned her objectivity and impartiality with regard to us and our relationship with dad and being interested in his needs and his welfare. (T:113; 01.04.16)
38 In a written submission, JT contends that MB has been controlling and domineering of EB in all environments and that he has deferred to her in order to appease her. MB is alleged to be hypercritical and prone to exaggeration.
39 JT states that the applicants have long been concerned about MB's motives and her impartiality concerning EB's wellbeing. She maintains that MB has done everything in her power to limit EB's independence and, since 2010, has been on a determined course to engineer the outcome of EB having to leave his home and go into care.
40 JT says that the applicants have made concerted attempts to work with MB in a collaborative and collegial manner but without success.
41 At the time of the first hearing EB was living in the secure ward of the nursing home. The applicants disputed the need for a secure placement and say there was no evidence to justify it. JT states that MB did not discuss or consult with the applicants regarding EB's admission to the nursing home and they only agreed on the basis this would afford him a chance of better care and easy access by family without all the 'roadblocks' placed by MB when EB was still living at home.
42 By the time of the second hearing, EB had been moved to the open ward of the nursing home and had been given a single room. CB states that the applicants are very happy with the room that EB has been given. AC, granddaughter of EB and proposed guardian, also accepts that his room is suitable for his current abilities.
43 JT says that the applicants would have preferred EB being originally placed in a Catholic facility so that he could practice his faith.
44 The applicants express a concern that in the future MB will seek to have EB returned to the locked ward of the nursing home.
45 The applicants say that currently, MB places unwarranted restrictions on EB's access to family outings, on excursions available through the nursing home and does not allow them to have access to EB's medical records and information.
46 The applicants describe family outings in which they would like to include EB as church attendance, restaurants, strolls and walks in gardens and parks and visiting family and friends. In addition, EB would benefit having a friend play chess with him.
47 The applicants make reference to a family reunion in August 2015 which included a proposed celebration of EB's 90th birthday (family reunion). The family reunion was to take place at CB's farm in the south west of Western Australia. ET says that EB wanted to go but was prevented from doing so by MB. She says that the nursing home staff had no objection to EB making the trip.
48 ET says that since 2010 (EB's last visit) access to EB has diminished such that currently access can only take place if the applicants travel to the nursing home (in ET's case from New South Wales), and even then, access is only permitted in the confines of EB's room or the common area of the nursing home.
49 ET states this is a departure from the previous practice of always including EB in family events. He has been to family marriages and baptisms and his 80th and 90th birthdays were celebrated. EB last travelled to Sydney in 2010.
50 ET recalls a time in 2014 when she telephoned EB and advised him that she and her children were travelling to Western Australia to see him. The call, which ET says MB put on 'speaker phone', was interrupted by MB who allegedly said that ET was not allowed to make contact arrangements without speaking with her first. EB was said to be going into respite care and although MB ultimately provided details of the respite facility, she advised ET 'what we were allowed and not allowed to do'. ET says this is an example of the 'suffocating control' MB imposes on the applicants' contact with EB (T:26, 27; 09.11.15).
51 The applicants state that when MB took EB to the most recent Christmas mass, a religious occasion of profound importance and significance for his family, MB made no attempt to offer the applicants to join them.
52 In cross examination, JT, ET, and CB accept that they are not restricted in visiting EB in the nursing home. ET states she visited three times in 2014. CB states that he visits Perth about twice a year.
53 Referring to the family reunion in 2015, ET says that if a reunion was now to take place on CB's farm, she would consider it appropriate for EB to travel to the farm and stay despite his age, his need to use a walking frame and the four hour road trip. She says that she would seek advice from the nursing home as to whether EB was capable of travelling. ET confirmed that the last time EB travelled to CB's farm was in 2010.
54 The applicants contend that the conditions under which they would be permitted to take EB outside of the nursing home, as detailed in a letter from MB's lawyer of 18 December 2015, are restrictive and unreasonable. The conditions are that each request will be dealt with on a case by case basis and that MB must be advised beforehand of the proposed duration of the outing, the travel time involved, the proposed activities, the persons involved and more generally the wishes of EB and his medical and welfare needs as advised by his medical and care professionals.
55 The applicants state that they are prohibited from accessing any of EB's medical assessments or reports and this prevents them from being able to engage with the nursing home staff on an informed basis to assist in decisions concerning EB's care and welfare. They say this is another example whereby MB has isolated EB from his children.
56 In crossexamination, JT accepted that there is no suggestion that MB is not following medical advice in the treatment of EB.
57 AB states that the applicants have made the application under s 109(1)(a) of the GA Act concerning the first EPA and second EPA so that they can gain knowledge of EB's financial position and obligations and determine whether MB has made sound financial decisions over time. They want to know whether EB has the financial capacity to continue living in the current nursing home and whether he can afford to go to a better facility.
58 AB states that he does not have any particular information to suggest that MB has made unwise financial decisions. MB has not shared any information with him.
59 The applicants are concerned that MB will use her authority under the second EPA to dispose of the property held as tenants in common by EB and MB and in which MB lives (property), precluding the possibility of EB ever returning to his home, particularly should MB predecease EB.
60 The initial position of the applicants concerning MB was that she no longer have the authority to make any of EB's decisions and that the second EPA and the first EPG and second EPG be revoked. They proposed that AC (granddaughter) and either of CB and JT be appointed EB's joint guardians and that AC and AB be appointed his joint administrators.
61 The applicants at first submitted that the appointed guardians should be given the authority to make decisions relating to EB's ongoing physical and psychological care, welfare and needs in general, including the location and categorisation of his residential accommodation.
62 AC submits that she is suitable to be appointed guardian and administrator for EB. She is his eldest grandchild and lives in Perth. She is a qualified and experienced physiotherapist and has worked with people in residential aged care settings. She has also worked in community settings. AC says that she will consult with EB's children and is confident of her independent decisionmaking abilities.
63 The position of the applicants varied throughout the proceeding in response to the submissions of the Public Advocate and various undertakings proposed by MB. They are dealt with below ('The undertakings').
The need for orders: evidence and submissions of MB
64 MB states that she and EB have been married for 31 years.
65 MB states that towards the end of 2014 she was advised to place EB on the waitlists of suitable nursing homes. She says that she spent some months visiting aged care facilities and deciding which ones she would consider.
66 MB states that in June 2015, EB was moved to his nursing home from hospital. She says that soon after EB's admission to hospital she contracted the flu, so when the offer came from the nursing home unexpectedly, she accepted it.
67 MB states that she played no part in the decision to place EB in a secure dementia ward as that decision was made 'inhouse by the doctors'. However, she says she was aware of safety concerns for EB because he was assessed as prone to falls. MB does not recall ever saying that EB would never leave the locked ward (T:67; 01.04.16).
68 MB states that by November 2015 she was in discussions with nursing home staff to move EB to the open ward because he was doing very well, but no beds were available at the time
69 MB confirms that EB is now in a single room in the open ward of the nursing home.
70 Regarding the allegation that she refused to provide EB's medical reports to the applicants, MB's initial response was that EB's general practitioner had control of those reports and she had taken the view that they were not for her to give. She denies ever saying that she would forbid the applicants access to medical information and that she would now give EB's doctor and the nursing staff at the nursing home permission to release information to a nominated family member.
71 MB states that she is listed as the 'next of kin' at the nursing home with her daughter as back up because her daughter always knows where she is. MB says that she had earlier agreed that CB could be added to the list.
72 MB states that EB loves to go on outings in the community but that he finds it quite exhausting and therefore physically difficult. She refers to the Christmas mass in 2015 she and her daughter were able to take him to, which lasted about two and a half hours, after which EB was very tired and went to sleep as soon as he was returned to the nursing home.
73 MB states that as EB's enduring guardian she must approve him going on an outing. Any approval would depend on factors such as where it was intended to take EB, for how long and with whom. MB says that she has a right to know the whereabouts of EB at any time. MB considers EB's health and wellbeing as a daytoday proposition and therefore any request for an outing must be decided on a case by case basis.
74 When asked what approval would be required if a family member asked to take EB for a coffee the day following the request, MB says that she would still need to be told where EB was going, with whom and the outing could be no longer than two or three hours.
75 MB states that EB's religious faith is Roman Catholic. The nursing home provides for the practice of EB's faith through the monthly attendance of a priest from the local church to give communion.
76 MB states that EB's nursing home fees are paid by way of bank direct debit. She says that she has no intention of selling the property.
77 MB submits that no cogent evidence has been presented by the applicants to warrant the making of an order under s 109(1)(a) of the GA Act requiring her to provide the records and accounts for the transactions undertaken by her under the first EPA and second EPA.
78 MB's submissions as to the need for a decisionmaker for EB are referred to below ('The undertakings').
The Public Advocate
79 The Public Advocate has provided the Tribunal with a written report of the investigation conducted pursuant to the referral under s 97(1)(b)(iii) of the GA Act and attended the first and second hearings to advance the best interests of EB: s 97(b)(i) of the GA Act.
80 The Public Advocate submits that it is open to the Tribunal to find that EB is a person for whom guardianship and administration orders could be made.
81 The Public Advocate interviewed EB at the nursing home on 23 October 2015. They are dealt with below ('The views and wishes of EB').
82 MB advised the Public Advocate that EB has an investment portfolio valued at $220,000 and bank funds of between $30,000 and $40,000. He is in receipt of a part age pension.
83 In early 2000, EB sold his home and acquired a quarter interest in the property, as tenants in common, with MB who owns the remaining three quarter share.
84 The Public Advocate submits that the first EPA which includes AB as joint and several attorney with MB, may be considered by the Tribunal as evidence that EB would have expected AB to have an understanding of his estate.
85 The Public Advocate proposes that MB be appointed the administrator of the estate of EB and be directed to give to AB a copy of the accounts she would be required to file with the Public Trustee pursuant to s 80 of the GA Act (s 80 accounts).
86 The Public Advocate spoke with Dr B, EB's general practitioner. Dr B advised that MB had placed herself and EB on the waiting list of a nursing home that was in the process of being refurbished and might become available sometime in 2016. Whilst not opposed to a move for EB, Dr B told the Public Advocate that EB would require time to adjust and settle and that any move could agitate him.
87 Dr B is not opposed to EB going on outings but would not recommend overnight stays or whole day outings because that would likely cause agitation and be physically demanding for EB.
88 The Public Advocate submits that the possible need for guardianship for EB can be reduced to three issues: his accommodation, health treatment and the contact he has with his family. The initial submission of the Public Advocate was that if these matters could be resolved between MB and the applicants, then the second EPG might be able to be used as a less restrictive alternative to the making of a guardianship order.
89 The final submission of the Public Advocate is that the first EPA, the second EPA, the first EPG and the second EPG should be revoked.
90 The Public Advocate submits that now that EB has moved to the open ward of the nursing home, the question of his accommodation is likely no longer an issue for the applicants. The Public Advocate would not be opposed to her shortterm appointment as limited guardian for the purposes of EB's treatment decisions and decisions about his contact with others, if the conflict between MB and the applicants cannot be resolved.
The undertakings
91 In the course of the proceeding and subsequent to the second hearing, MB gave certain undertakings on the basis that she would be appointed EB's plenary guardian and plenary administrator. In that context, she submitted that the first EPA, the second EPA, the first EPG and the second EPG should be revoked.
92 The undertaking in respect of the administration order is that MB would provide JT with a copy of the s 80 accounts. She would do so within seven days of submitting the accounts to the Public Trustee.
93 The undertaking in respect of the guardianship order is that MB would allow JT to obtain EB's medical records and to discuss those records with his general practitioner, Dr B. As for EB's contact with the applicants and other family members, upon being informed in advance of a visit, MB would not unreasonably 'defer any residence visit' for a period of no longer than three hours on any given day.
94 On 19 April 2016, MB filed a copy of a letter to Dr B setting out the circumstances of the undertakings concerning the proposed guardianship order. Relevantly, the letter to Dr B states that JT should be given access to any medical records held by Dr B and be able to discuss such records and medical treatment with him.
95 In respect of outings, MB would permit the applicants and any grandchild of EB to take him on an outing from the nursing home for a period not exceeding three hours, subject to MB being informed in advance of the arrangements and approval for the outing being given by Dr B. MB proposes that should an outing be requested, she would contact Dr B and discuss with him whether the outing would be of benefit to EB and whether or not his health and wellbeing would be affected one way or the other.
96 The applicants do not agree with the undertakings given by MB.
97 The primary position of the applicants is that MB should not have any decisionmaking authority with respect to EB. If, however, she is granted a decisionmaking role it should be subject to conditions.
98 The applicants submit that if MB is appointed the plenary administrator of the estate of EB, she should be directed to provide a copy of the s 80 accounts to AB at the same time they are filed with the Public Trustee. In addition, MB should be directed to obtain AB's advice in writing about any financial decision involving an amount exceeding $5,000, and if she decides not to follow that advice, to notify the Public Trustee and AB of that fact and her reasons.
99 The applicants submit that the operation of the second EPG should be suspended and that MB be appointed limited guardian of EB to make his treatment decisions and the Public Advocate be appointed guardian to make all other personal decisions for EB, including his accommodation and contact arrangements with family members. AC and each of the four children (the applicants) or alternatively AC and JT, should be permitted to obtain EB's medical and care information and be allowed to discuss that information with his health professionals. Whoever is given that role should also be allowed to raise, in writing, with the Public Advocate and MB any concern regarding a guardian's decision.
100 The applicants say the Tribunal should also direct that requests for family outings during the day, up to 8.00 pm, be subject only to the recommendations of the treating medical professional or care professional at the time.
101 On 4 May 2016, the applicants filed a response to MB's letter to Dr B of 19 April 2016. The applicants submit that the conditions MB proposes to place on family outings are unreasonable, burdensome and likely to render outings difficult, if not impossible, to occur.
102 So far as access to medical information is concerned, the applicants say that access should not be limited to Dr B but include nursing home staff.
The views and wishes of EB
103 When interviewed by the Public Advocate on 23 October 2015, EB is reported to have said that he trusted MB to do the right thing by him in matters of his medical treatment and the management of his finances. He stated that the relationship with his children was very good but that he did not have much contact with them because they do not live in Perth.
104 In a written submission the applicants state:
[EB], as the proposed represented person, has been so conditioned by many years of subjugation by and deference to [MB] that he is no longer able to assert any position which might deny any of [MB]'s expressed wishes and desires, including limiting, ending, or annulling any of her decisionmaking powers regarding or relating to his ongoing physical and psychological care and needs generally, including things such as the location and categorisation of his residential accommodation.
Discussion
105 I accept the medical evidence that EB has been diagnosed with dementia likely of the Alzheimer's type. The dementia is a progressive condition and began to emerge in 2010.
106 It is common ground that EB requires fulltime care and supervision.
107 EB could not describe his estate to the Public Advocate. He did not think that he owned property and was not clear about the second EPA, other than he seemed to recognise his signature on the instrument when it was presented to him.
108 The evidence of the applicants is mixed. On the one hand they submit that EB did not have full legal capacity when executing the second EPG in 2010 and the second EPA in 2014, but also say he is able to have a lengthy rational conversation (ET) and able to continue to play chess well (AB).
109 There is no dispute that EB suffers significant shortterm memory loss.
110 The applicants also say that part of the problem for EB is that he has been overborne by EB for many years and this has resulted in a 'assumed helplessness' (JT).
111 I accept the evidence of the nursing home manager whose opinion undoubtedly relies on the information given by staff who attend to EB on a daily basis. That evidence shows that EB is confused, more so in the evening, and requires simple two step instructions to get him to do things.
112 I am satisfied and declare that by reason of the progressive dementia and the resultant decline in his functioning over a number of years, that EB is incapable of looking after his own health and safety, is in need of oversight and care and is unable to make reasonable judgments about personal and financial matters.
113 A feature of the applicants' evidence is their longstanding view of the alleged negative influence MB has had on EB and his relationship with his children. The applicants' depth of feeling is such that their primary position is that MB should not play any part in the decisionmaking for EB. What the applicants say is that MB's disregard for EB's current wellbeing and interests is a continuation of what has been happening for the last 30 years.
114 What the evidence and submissions clearly demonstrate is that the applicants have an almost total mistrust of MB's motives and actions.
115 Those feelings of mistrust and the allegation that MB has oppressed EB over a long period of time is not of itself determinative of the question whether MB is currently acting in EB's best interests because he is unable now to make his own decisions as a consequence of the progressive dementia.
116 I agree with the Public Advocate that the question of EB's accommodation is currently settled. The original concern of the applicants concerned EB being placed in the secure ward of the nursing home. This is no longer the case.
117 I am satisfied that the move of EB to the open ward is evidence that MB was not, as the applicants allege, determined to keep EB in the secure ward. That being said, I accept that as EB's dementia progresses and depending on his circumstances, the decision about his accommodation may need to be revisited at a future time.
118 I see no reason to take that authority away from MB as EB's spouse for over 30 years.
119 My decision is in accord with the wishes of EB, as expressed to the Public Advocate, despite the applicants' contention that MB has overborne EB for many years.
120 The same can be said for the making of treatment decisions for EB. There is no evidence before the Tribunal that MB has made treatment decisions contrary to medical advice. Absent an advance health directive, an enduring power of guardianship or a guardianship order, the GA Act recognises the primacy of a spouse's role in the making of treatment decisions in the person responsible provisions: s 110ZD of the GA Act.
121 However, I accept the applicants' evidence that they have largely not been given the opportunity to provide a contribution towards these decisions for EB because of the lack of any positive relationship with MB.
122 This situation is acknowledged by MB in the undertakings she has proposed concerning EB's medical information.
123 The question then becomes how to acknowledge MB's decisionmaking authority for EB's accommodation and treatment whilst giving the applicants a means by which they can provide an input.
124 I am not satisfied that an undertaking by MB would be of sufficient force to deal with this matter.
125 The resolution in my view is to have the authorities contained in a guardianship order subject to conditions (s 43(3) of the GA Act), given that there is no express power to direct a guardian other than when a guardian applies for directions: s 47(1) of the GA Act.
126 I have decided, therefore, that MB should be appointed EB's limited guardian to decide where and with whom EB is to live, whether permanently or temporarily and to make his treatment decisions. The appointment is conditional on advising AC of any proposed decision to change EB's accommodation and allowing input into that decision and further conditional upon AC being given access to EB's medical records whether held by his medical practitioners or the nursing home and to be permitted to discuss treatment and health care with the health professionals and MB.
127 I have chosen AC on the basis that she is somewhat removed from the difficult relationship the applicants have with MB and she is a person proposed by the applicants as a potential guardian for EB.
128 The matter of the applicants and other family members having contact with EB at the nursing home or, more particularly, in family outings is not in my view amenable to the sort of outcome proposed in the decisions about EB's accommodation and treatment. I agree with the applicants that the undertaking by MB is unwieldy and inflexible and will be difficult to implement in any practical way. The undertaking in my view is reflective of the unfortunate relationship that MB has with the applicants.
129 I have decided therefore that it is in EB's current best interests for the Public Advocate to be appointed as his limited guardian to determine what contact he should have with others and the extent of that contact.
130 I am satisfied that the limited guardianship order I have made appointing MB and the Public Advocate with particular functions meets the needs of EB such that a plenary order is not required: s 4(5) of the GA Act.
131 In making the guardianship order, I will revoke the first EPG and the second EPG given that the power contained in those instruments is inconsistent with the power under the guardianship order. There is therefore no need for me to consider the question of the validity of either the first EPG or the second EPG.
132 In respect of the management of EB's estate, there is no evidence before me to suggest that MB is not making appropriate financial decisions for EB.
133 I agree with the submission of MB that it is in the best interests of EB that she should continue to manage his estate. This is consistent with the wishes of EB.
134 There is no direct evidence before the Tribunal that in making the second EPA in 2014, EB revoked the first EPA he executed in 1996, although it may be presumed he did so given the change in authority. The applicants contend that EB was not of full legal capacity when making the second EPA, but I do not accept that is the case because the instrument was witnessed by EB's then general practitioner and because EB is entitled to a presumption of capacity only to be rebutted by clear and cogent evidence which is not before the Tribunal.
135 I agree with the submission of MB that she should be appointed EB's plenary administrator however, rather than accept an undertaking from her to provide a nominee from the applicants with the s 80 accounts, I will direct MB to provide that information to AB given that he, at least previously, was chosen by EB as an attorney in the first EPA.
136 The power of the Tribunal to give directions to administrators is contained in s 71 and s 72 of the GA Act.
137 I do not agree that MB's authority as administrator should be restricted in the way proposed by the applicants (see 'The undertakings'). The effect of the restrictions would be to place AB in a supervisory role which the GA Act intends as a role for the Public Trustee under s 80 of the GA Act.
138 By making the administration order and to provide certainty in the decision making, I have decided to revoke the first EPA and second EPA notwithstanding my earlier comments on the likely status of the first EPA upon EB making the second EPA.
139 I finally turn to the application made under s 109(1)(a) of the GA Act.
140 The Tribunal has a general supervisory jurisdiction in respect of an enduring power of attorney (KS [2008] WASAT 29 at [26]).
141 An application under s 109(1)(a) must be made by a person with a proper interest in the matter. I accept that applicants have a proper interest in that they are the children of EB and that the application is not frivolous or vexatious. The term 'proper interest' should not be restrictively applied (EW [2010] WASAT 91 at [27] and [28] (EW).
142 However, the applicants have provided no evidence of irregular transactions or evidence of an unusual diminution in EB's estate. The application is speculative and does not support the submission of the applicants that the operation of the first EPA and second EPA warrant further explanation or inquiry (EW at [94] [101]).
143 I will therefore dismiss the application made under s 109(1)(a) of the GA Act.
144 The outcomes of the seven applications are as follows:
• revocation of the first EPG and second EPG; application granted.
• declaration of invalidity of the first EPG and second EPG; application dismissed.
• varying the terms of the first EPA by removing MB as attorney; application dismissed.
• revoking the second EPA; application granted.
• requiring MB as attorney under the first EPA and second EPA to file with the Tribunal and serve on the applicants a copy of all records and accounts kept by her of dealings and transactions made by her in connection with the power; application dismissed.
• the appointment of a guardian; guardianship order made with conditions.
• the appointment of an administrator of EB's estate; administration order made with directions.
Orders
MATTER GAA 3681 of 2015
On the application for the appointment of an administrator for the represented person, [EB] heard before the Senior Member J Mansveld on 1 April 2016
The Tribunal declares that the [EB];
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b) is in need of an administrator of his estate,
1. MB of [address] is appointed plenary administrator of the estate of [EB] with all the powers and duties conferred by the Act.
2 (a) The enduring power of attorney dated 21 June 1996 by which [EB] appointed [MB] and [AB] be his attorneys, is revoked.
(b) The enduring power of attorney dated 16 June 2014 by which [EB] appointed [MB] to be his attorney, is revoked.
3. At the same time as the administrator submits accounts to the Public Trustee as required by s 80 of the Guardianship and Administration Act 1990 (WA), she is to give a copy of those accounts to [AB].
4. The administration order is to be reviewed by 23 August 2021.
MATTER GAA 3682 of 2015
On an application for the appointment of a guardian for the represented person, [EB] heard before Senior Member J Mansveld on 1 April 2016
The Tribunal declares that [EB];
(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; and
(d) is in need of a guardian,
1. [MB] of [address] is appointed limited guardian of the [EB] with the following functions:
(a) to decide where [EB] is to live, whether permanently or temporarily;
(b) To decide with whom [EB] is to live; and
(c) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for [EB].
2. The appointment of [MB] as limited guardian is subject to the following conditions:
(a) that she advise [AC], granddaughter of [EB], of any proposed changes to his accommodation and permit [AC] to discuss those decisions with [EB's] children, his medical practitioners and nursing home staff (health professionals) and [MB] in her role as limited guardian ; and
(b) that she permit [AC] to have access to [EB's] medical and health care information held by his health professionals and to further permit [AC] to discuss [EB's] treatment and health care with his children, his health professionals and with [MB] in her role as limited guardian.
3. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of [EB] with the following function:
(a) to determine what contact, if any, [EB] should have with others and the extent of that contact.
4. The Tribunal approves delegation by the Public Advocate of her functions as limited Guardian of [EB] to an officer or employee employed in the Office of the Public Advocate.
5. This order is to be reviewed by 23 August 2021.
MATTER GAA 3684 of 2015
On an application by [CB] and [JT] and [ET] and [AB] (applicants) under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) for orders concerning enduring powers of attorney made by [EB] on 21 June 1996 and 16 June 2014 heard before Senior Member J Mansveld on 1 April 2016, the Tribunal orders that:
1. The application is dismissed.
MATTER GAA 3686 of 2015
On an application by [CB] and [JT] and [ET] and [AB] (applicants) under s 109(1)(c) of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of attorney made by [EB] on 21 June 1996 appointing [MB] and [AB] his joint and several attorneys, heard before Senior Member J Mansveld on 1 April 2016, the Tribunal orders that:
1. The application is dismissed.
MATTER GAA 3687 of 2015
On an application by [CB] and [JT] and [ET] and [AB] (applicants) pursuant to s 109(1)(c) of the Guardianship and Administration Act 1990 (WA) concerning enduring powers of attorney made by [EB] on 21 June 1996 and 16 June 2014heard by Senior Member J Mansveld on 1 April 2016, the Tribunal orders that:
1. The enduring powers of attorney made on 21 June 1996 and 16 June 2014 are revoked.
MATTER GAA 3689 of 2015
On an application by [CB] and [JT] and [ET] and [AB] (applicants) under s 110K of the Guardianship and Administration Act 1990 (WA) concerning enduring powers of guardianship made by [EB] on 21 August 2010 and 24 August 2010 appointing [MB] his enduring guardian heard before Senior Member J Mansveld on 1 April 2016, the Tribunal orders that:
1. The application is dismissed.
MATTER GAA 3690 of 2015
On an application by [CB] and [JT] and [ET] and [AB] (applicants) under s 110N(1)(a) of the Guardianship and Administration Act 1990 (WA) concerning enduring powers of guardianship made by [EB] on 21 August 2010 and 24 August 2010 appointing [MB] his enduring guardian heard before Senior Member J Mansveld on 1 April 2016, the Tribunal orders that:
1. The enduring powers of guardianship made on 21 August 2010 and 24 August 2010 are revoked.
I certify that this and the preceding [151] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER