EBM
[2012] WASAT 157
•14 JUNE 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: EBM [2012] WASAT 157
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS F CHILD (MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)
HEARD: 14 JUNE 2012
DELIVERED : 14 JUNE 2012
PUBLISHED : 31 JULY 2012
FILE NO/S: GAA 1429 of 2012
GAA 1430 of 2012
BETWEEN: EBM
Represented person
Catchwords:
Guardianship and administration Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) of decision to appoint Public Advocate as limited guardian and Public Trustee as plenary administrator Represented person suffering dementia Represented person requires accommodation in longterm care facility Applicant has greatly assisted represented person in recent years Applicant has high compatibility with represented person Purported power of attorney for represented person does not specify time to commence and is therefore invalid Represented person has joint tenancy interest in a property Sale of property may be required to pay bond to guarantee represented person's longterm accommodation
Legislation:
Guardianship and Administration Act 1990 (WA), s 17A, s 43, s 64, s 68(1), s 68(3), s 104(1)(b), s 106
Result:
Appointment of Public Advocate as guardian confirmed
Order appointing Public Trustee as plenary administrator revoked
Applicant for review appointed plenary administrator
Order revoking enduring power of attorney confirmed
Category: B
Representation:
Counsel:
Represented person : N/A
Solicitors:
Represented person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
PAG, the represented person's neighbour, applied for a review of a determination of the Tribunal, when constituted by a single member, by a Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA). In the determination which was the subject of the review, the Tribunal had appointed the Public Advocate as limited guardian of the represented person and the Public Trustee as plenary administrator of her estate.
In the review proceeding, the Full Tribunal was satisfied that the represented person, who is almost 94 years old and suffers from vascular dementia, was someone for whom guardianship and administration orders could and should be made.
The Tribunal determined that it was appropriate for the Public Advocate to remain appointed as limited guardian, a decision which was supported by all of the parties at the review hearing, including PAG.
In regards to administration, the Tribunal confirmed the order made by the member at the original hearing revoking a document purporting to declare PAG as donee of an enduring power of attorney for the represented person, which was declared as invalid because it did not specify a time for commencement.
In considering who to appoint as plenary administrator, the Tribunal was assisted by further evidence supplied by PAG not before the member at the original hearing, which demonstrated clearly that PAG has greatly assisted the represented person with her affairs in recent years, is highly compatible with her, and would be able to perform the functions of administrator for the represented person's estate. The Tribunal, therefore, found that PAG was an appropriate person to appoint as plenary administrator.
The Tribunal noted that difficult decisions may be required to ensure payment of a bond to guarantee the represented person's residence in a long-term care facility, and may involve legal proceedings to enable the sale of a property in which the represented person has a 50% joint tenancy interest. The Tribunal advised the parties that the matter could be brought back on an expedited basis if the represented person's accommodation arrangements were jeopardised by difficulties in payment of the bond.
The Tribunal's oral reasons, taken from the transcript and edited in minor respects, were as follows.
Introduction
This proceeding is a review under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) of determinations made by a single member, Member S Gillett on 2 April 2012, by which the Tribunal made a limited guardianship order and a plenary administration order in respect of EBM.
The guardianship order which was made appointed the Public Advocate as limited guardian with the following functions:
a)to decide where the represented person is to live whether permanently or temporarily;
b)to decide with whom the represented person is to live;
c)to consent to any treatment or health care of the represented person; and
d)to determine the services to which the represented person should have access.
The administration order appointed the Public Trustee as plenary administrator of the estate of EBM. The member also, in making the administration order, revoked an enduring power of attorney dated 14 May 2008 by which EBM appointed PAG, as her attorney. This application for review is made by PAG who, the evidence shows, has been not only EBM's neighbour, but also her major carer for the past five or six years.
EBM is a lady of almost 94 years of age who now resides in a residential care facility which all the parties, including the Public Advocate, consider to be an appropriate facility. At the time of the hearing before the member, EBM was an inpatient at Armadale Hospital, having been readmitted after an apparent fall. EBM suffers from vascular dementia, and the Tribunal has a medical report by a specialist geriatrician, Dr JT, which confirms that diagnosis and indicates that the dementia is likely to progress.
Whether a guardianship order and administration order can be made
Given that a person is otherwise presumed to be capable of looking after their own person, in order for a guardianship order to be able to made in respect of a person under s 43 of the GA Act the Tribunal must be satisfied that the person:
(1) …
(b)is
(i) incapable of looking after [their] own health and safety;
(ii)unable to make reasonable judgements in respect of matters relating to [their] person; or
(iii)in need of oversight, care or control in the interest of [their] own health and safety or for the protection of others;
…
Under s 64 of the GA Act, in order for an administration to be able to be made in respect of a person the Tribunal must be satisfied that a person:
(1) …
(b)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of any part of [their] estate; and
(c)is in need of an administrator of [their] estate,
…
On the basis of the medical evidence of Dr JT we are satisfied that EBM is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, and is in need of care, oversight and control in the interest of her own health and safety for the purposes of s 43. Further, we are satisfied that EBM is unable by reason of mental disability, namely the diagnosis of vascular dementia, to make reasonable judgements in respect of matters relating to all or any part of her estate for the purposes of s 64 of the GA Act.
Whether a guardianship order and administration needs to be made
We are satisfied, and it is common ground between all of the parties, that there is a need for the making of a guardianship order in light of EBM's incapacity and the fact particularly that decisions in relation to treatment need to be made by a person with proper authority. In this regard, EBM has no immediate family in Australia.
In its report to the Tribunal, the Office of the Public Advocate indicated that, because since the hearing before the member EBM is now in suitable permanent accommodation in a residential care facility, it is no longer necessary to authorise a guardian to make decisions in relation to accommodation and services. We are of the view that, given that the accommodation bond has not yet been paid, the guardianship should continue in relation to the accommodation function to ensure that the accommodation is secured for EBM in the long term. The medical evidence suggests, and everyone at the hearing accepts, that EBM needs to remain in this particular facility as it provides an appropriate level of care for her. It is therefore essential that decisions be made to ensure that the bond is paid.
In relation to administration, PAG, as noted earlier, is the donee of an enduring power of attorney, or at least a document that purports to be an enduring power of attorney, granted in 2008. As the member observed at the hearing, the enduring power of attorney does not specify when it is to commence. In particular, EBM did not rule through one of the two options that:
•the power of attorney was to commence immediately and continue despite any legal incapacity of the donor; or
•will commence only when an order is made by the Tribunal that the donor does not have legal capacity under s 106 of the GA Act.
Section 104(1) states that:
An enduring power of attorney may be created by instrument -
…
(b)in which the donor of the power declares that the power either
(i)will continue in force notwithstanding [their] subsequent legal incapacity; or
(ii)will be in force only during any period when a declaration by the State Administrative Tribunal under section 106 that the donor does not have legal capacity is in force.
Because EBM did not make that election which is mandatory under the terms of s 104(1)(b) of the GA Act, the enduring power of attorney is invalid. For the avoidance of confusion, and given that the document has been provided to the local council, as well as banks, the Tribunal will confirm the order made by the member revoking the enduring power of attorney. In practical terms, in relation to the question of whether there is a need for a administrator, it means that there is no less restrictive alternative than the appointment of an administrator in the circumstances of this case.
Who should be appointed to the tasks of guardianship and administration?
The parties, including PAG, all agree that it is appropriate for the Public Advocate to continue her role as guardian. We agree, and we are satisfied that the appointment of the Public Advocate as limited guardian with the functions that were referred to above, will be in the best interests of EBM, and should be confirmed.
In relation to the administration order, as noted above, the Public Trustee is currently appointed as plenary administrator. Section 68 of the GA Act states that:
(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.
In addition, s 68(3) requires the Tribunal to take into account as far as 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
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
The evidence before the Tribunal shows, beyond question, that EBM and PAG have a high compatibility. EBM has, by her will, indicated her trust and confidence in PAG in unambiguous terms, and has appointed him to be executor of the will as well as a principal beneficiary under the will. In addition, the purported granting of the enduring power of attorney, while defective, indicates that the appointment of PAG as administrator reflects the compatibility and also accords with the wishes of EBM.
We are also satisfied on the evidence that is before us, which is additional to the evidence that was placed before the member at the last hearing, that PAG will be able to perform the functions proposed to be vested in the administrator. PAG has provided further details to the Tribunal that were not provided to the member in relation to the general expenditure of EBM over the period that PAG has, in effect, acted as her agent or informal attorney. PAG has also given evidence to the Tribunal that satisfies us that he has acted in her best interests in relation to her finances in the past, and has assisted her greatly in that regard.
The Tribunal, when appointing an administrator, does not usually make orders directing the administrator to act in any particular way. The Tribunal, by making an administration order, recognises that a person will act in the best interest of the represented person and it is generally not desirable to seek to limit the administrator in any way. It does, however, appear to the Tribunal, as we presently understand the circumstances, that it is essential that EBM's longterm residence in the current facility be secured, and it appears to us that at this stage the only way in which that can be done is by the sale of her home.
EBM has a 50% joint tenancy of another property in the same street. However, PAG, on behalf of EBM, has for a considerable period of time been seeking to sell that 50% interest or otherwise to realise that asset without success. There are significant complications involved in that, and it certainly appears, in fact, that there is no alternative in relation to that other than some legal proceeding in the Supreme Court to ensure the sale of that property. That is complicated and expensive, and it is not likely to be the method to ensure that EBM can remain in the current facility by the payment of a bond. It does seem that that may well be in EBM's best interests, but that is something the administrator will need to take advice on and, it appears, consult lawyers in relation to.
The immediate step must be to ensure that EBM remains securely in the current facility and it appears to us, based on the information we have now, that that will require a bond. There may be another method available, but that is something that will need to be determined quickly. As we noted above, the Public Advocate will remain guardian for the purposes of accommodation, and in that role can assist the administrator as to whether there are any other options. But if, as appears to be the case, it proves to be that the only realistic and financially sensible option for EBM is to pay the bond, then it appears to us, as we currently understand it, that the house will need to be sold, obviously at a reasonable return but relatively quickly.
If that does not occur, then the limited guardian has the right to bring the administration matter back before the Tribunal without leave, and we would expect that that would happen on an urgent basis. If this is required, for example, if the house is not sold and there is a real threat to EBMs long-term residence at this facility, then the matter should come back before the Tribunal at the instigation of the Public Advocate on an expedited basis for consideration before, if possible, this panel. Obviously the Tribunal would take a dim view if that were necessary, and we are confident that that will not be necessary.
For these reasons, we are satisfied that PAG is an appropriate individual who is willing to be appointed as administrator. The appointment of the Public Trustee is an alternative option available to the Tribunal, but in this case we do not consider that the appointment is preferable. The appointment of the Public Trustee may well have appeared to be the appropriate outcome at the time of the initial hearing, and a benefit of the appointment of the Public Trustee has been that the estate has now been quantified and a schedule prepared, which no doubt will be of assistance to everyone.
For how long should the administration and guardianship orders be made?
The guardianship order that was made by the member was for a period of five years, which is the maximum available under the GA Act. The administration order was also made for that period. We consider that the guardianship order should be confirmed for a period of five years, even though part of the function, namely, the residence or the accommodation function is likely to be complete well before that time. The administration order, we feel, should be made for a period of two years to enable the Tribunal to review the progress of the administration at that point. That will give sufficient time for one, and possibly two, sets of accounts to be provided by the administrator to the Public Trustee during that time, and will be sufficient time to address the bond issue which is likely in fact to be addressed very shortly. But that will also give a sufficient period of time to address the question of what is to happen with the property in common ownership, or at least to take steps in that regard. We think it is appropriate that the Tribunal review the matter at that point to see whether the administration should be confirmed or amended in any way.
Orders
For these reasons we make the following orders:
GAA 1429 of 2012
1.The order made on 2 April 2012, by which the Public Advocate was appointed limited guardian for the represented person, is confirmed 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)subject to Pt 5 Div 3 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.
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.This order is to be reviewed by 14 June 2017.
GAA 1430 of 2012
1.The order appointing the Public Trustee as plenary administrator for the represented person made on 2 April 2012 is revoked.
2.[PAG] 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).
3.The order made on 2 April 2012, by which the enduring power of attorney dated 14 May 2008 purporting to appoint [PAG] to be attorney of [EBM] was revoked, is confirmed.
4.The administration order is to be reviewed by 14 June 2014.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
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