EM

[2016] WASAT 129

EM [2016] WASAT 129

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 129
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:3145/2016	Heard:	18 OCTOBER 2016
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	2/11/16
No of pages:	17	Judgment Part:	1 of 1
Result:	The Public Advocate appointed as guardian The Public Trustee appointed as administrator
Category:	B
PDF Version

Parties:	EM
Catchwords:	Guardianship and administration Capacity Dementia Dispute between hospital team and daughter of the represented person as to her future accommodation needs Aged Care Assessment Team Aged care package Guardian appointed to decide the represented person's future accommodation and care needs Conflict of interest Daughter conflicted because the represented person's income needed to maintain a rental property where the daughter and represented person lived Treatment decisions to continue to be made by the represented person's family Public Advocate appointed as guardian Public Trustee appointed as administrator
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 65, s 68, s 68(3)(a), s 69, s 84, s 110ZD, Pt 9C
Case References:	Nil
Summary	EM a 98­year­old woman, lived with her daughter, RM.,In early August 2016, EM had been admitted to hospital after her leg became infected subsequent to a fall at home.  At the time of her admission she was assessed as being in poor health and malnourished.,EM had previously been diagnosed with early onset dementia and had been receiving in­home care by way of an aged care package as well as care from RM and a friend, LD.,During the hospital admission EM's diagnosis of dementia was confirmed and the hospital team came to a view that she could not return home and required care in a nursing home.,The daughter RM disagreed with the hospital team and wanted EM to return home.,The agency which provided services under the aged care package was concerned that the care package was underutilised and also had a difficult relationship with RM.,The property in which RM and EM lived was a private rental which was subject to a tenancy agreement with them and LD as joint tenants.  At the time of the hearing, LD was not living in the rental property but was available, he said, to care for EM if she returned home.  LD was in receipt of a carers allowance in respect of EM's care.,RM accepted that she relied in part on EM's income to maintain the joint tenancy.,At the time of the Tribunal hearing the question of EM's future accommodation remained unresolved.  The ongoing issues concerning EM's accommodation centred on the availability and use of the aged care package, RM's own health issues, the availability and consistency of the care that could be provided by LD and the ongoing tension that existed between RM and her sister AR.,The Tribunal decided to appoint the Public Advocate as EM's limited guardian to make decisions about her future accommodation and attendant care needs.  Although RM had proposed herself as had LD, they were both in a position of some conflict given that they had an interest in maintaining the tenancy of the rental property which EM contributed to and LD received an income support payment for caring for EM.,The Tribunal found that RM and her sister AR could continue to make treatment decisions for EM and that the Tribunal should not lightly remove such a sensitive decision-making function from EM's family unless there was a clear need to do so.,The Tribunal found that although EM's estate was very small it had not been well managed given the pooling of income that took place in the rental property between RM and EM and the fact that EM had accumulated a debt to the support agency which she did not have sufficient funds to pay.,The Tribunal therefore decided to appoint the Public Trustee as the administrator of EM's estate.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : EM [2016] WASAT 129 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 18 OCTOBER 2016 DELIVERED : 2 NOVEMBER 2016 FILE NO/S : GAA 3145 of 2016 MATTER : EM

Represented Person

Catchwords:

Guardianship and administration - Capacity - Dementia - Dispute between hospital team and daughter of the represented person as to her future accommodation needs - Aged Care Assessment Team - Aged care package - Guardian appointed to decide the represented person's future accommodation and care needs - Conflict of interest - Daughter conflicted because the represented person's income needed to maintain a rental property where the daughter and represented person lived - Treatment decisions to continue to be made by the represented person's family - Public Advocate appointed as guardian - Public Trustee appointed as administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 65, s 68, s 68(3)(a), s 69, s 84, s 110ZD, Pt 9C

Result:

The Public Advocate appointed as guardian

The Public Trustee appointed as administrator

Summary of Tribunal's decision:

EM a 98­year­old woman, lived with her daughter, RM.

In early August 2016, EM had been admitted to hospital after her leg became infected subsequent to a fall at home. At the time of her admission she was assessed as being in poor health and malnourished.
EM had previously been diagnosed with early onset dementia and had been receiving in­home care by way of an aged care package as well as care from RM and a friend, LD.
During the hospital admission EM's diagnosis of dementia was confirmed and the hospital team came to a view that she could not return home and required care in a nursing home.
The daughter RM disagreed with the hospital team and wanted EM to return home.
The agency which provided services under the aged care package was concerned that the care package was underutilised and also had a difficult relationship with RM.
The property in which RM and EM lived was a private rental which was subject to a tenancy agreement with them and LD as joint tenants. At the time of the hearing, LD was not living in the rental property but was available, he said, to care for EM if she returned home. LD was in receipt of a carers allowance in respect of EM's care.
RM accepted that she relied in part on EM's income to maintain the joint tenancy.
At the time of the Tribunal hearing the question of EM's future accommodation remained unresolved. The ongoing issues concerning EM's accommodation centred on the availability and use of the aged care package, RM's own health issues, the availability and consistency of the care that could be provided by LD and the ongoing tension that existed between RM and her sister AR.
The Tribunal decided to appoint the Public Advocate as EM's limited guardian to make decisions about her future accommodation and attendant care needs. Although RM had proposed herself as had LD, they were both in a position of some conflict given that they had an interest in maintaining the tenancy of the rental property which EM contributed to and LD received an income support payment for caring for EM.
The Tribunal found that RM and her sister AR could continue to make treatment decisions for EM and that the Tribunal should not lightly remove such a sensitive decision-making function from EM's family unless there was a clear need to do so.
The Tribunal found that although EM's estate was very small it had not been well managed given the pooling of income that took place in the rental property between RM and EM and the fact that EM had accumulated a debt to the support agency which she did not have sufficient funds to pay.
The Tribunal therefore decided to appoint the Public Trustee as the administrator of EM's estate.

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:

Introduction

1 EM is a 98-year-old woman who has been diagnosed with dementia likely caused by Alzheimer's disease. At the time of the hearing, she was in hospital and had been so since early August 2016 due to a leg injury becoming infected after a fall at home.

2 EM lives with her daughter RM and has done so for many years in a private rental property (rental property).

3 EM has another daughter AR.

4 In August 2016, the hospital medical team (applicant) made applications for guardianship and administration orders (applications) in respect to EM pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).

5 On 19 August 2016 the Public Advocate was notified of her possible appointment as guardian of EM pursuant to s 44(5) of the GA Act.

6 The applications were part heard on 7 September 2016 and adjourned to enable RM to obtain legal advice and representation. RM gave an undertaking to consent to EM being discharged from hospital to transitional care if a bed became available.

7 Also, on 7 September 2016, the Tribunal made an order under s 65 of the GA Act authorising the Public Trustee to exercise the functions of a plenary administrator and, in particular, to determine the extent of EM's estate, to secure that estate and to collect her income and to pay from that income her current obligations.

8 An order can be made under s 65 of the GA Act if, pending the determination of the question whether EM is in need of an administrator, it is determined her estate requires immediate protection.

9 The final hearing of the applications took place on 18 October 2016. In attendance were RM, AR, LD, a representative of the applicant (applicant), a representative of the agency which provided in­home care for EM (support agency), a representative of the Public Trustee (Trust Manager), a representative of the Public Advocate (Public Advocate) and others.

10 RM was represented by counsel.

11 The decision was reserved.

Relevant legislation

12 The primary concern of the Tribunal is the best interests of EM: s 4(2) of the GA Act.

13 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of EM as expressed, in whatever manner, at the time, or as gathered from EM's previous actions: s 4(7) of the GA Act.

14 EM is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.

15 Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for EM unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.

16 Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of EM unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.

17 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.

18 If a finding of incapacity is made in respect to EM, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of EM can be met in a manner less restrictive of her 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.

19 If the Tribunal decides that EM 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 and s 84 of the GA Act.

20 As to the authority given to a guardian, if a limited order is sufficient to meet the needs of EM, 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 EM: s 4(5) and s 4(6) of the GA Act.

The question of EM's capacity

21 The Tribunal has before it a report from October 2013 from the Aged Care Assessment Team (ACAT), a report from August 2016 from the hospital geriatrician, a report from the hospital social worker (social worker) and a report from the support agency.

22 The ACAT report states that in October 2013, EM was diagnosed with early onset dementia. She was reported to regularly suffer from short­term memory problems, confusion and was disoriented to place. She was also said to have occasional long­term memory loss and disorientation to time. A Mini Mental State Examination (MMSE) undertaken on 25 September 2013 showed that EM scored only 16/30.

23 The hospital geriatrician has diagnosed EM with 'Alzheimer's dementia' and refers to a MMSE undertaken in January 2016 in which EM scored 13/28, the test being modified to account for EM's visual impairment. The geriatrician assessed EM as being incapable of making reasonable decisions regarding her personal health care, living situation and financial affairs. She was also assessed as being incapable of executing an enduring power of attorney.

24 The social worker describes EM as 'pleasantly confused' on the hospital ward. The social worker states that EM is able to follow simple one­step commands and can speak in full sentences. She is not oriented to time, day or date but occasionally is oriented to place and person.

25 The support agency states that EM can often appear confused and requires assistance and prompts for her activities of daily living. The support agency reports that EM's communication varies from good to being much disoriented. EM is said to become repetitive in her communication when in a disoriented state.

26 The Public Advocate interviewed EM on 5 September 2016 and was advised by hospital staff that her mental and physical health had improved since the hospital admission in early August 2016. The Public Advocate found EM to be quite lucid and alert and able to express her views and wishes (see below). However, the Public Advocate observed that EM had little or no insight into her care needs and the associated risks of returning home to live.

27 RM states that she accepts the diagnosis of dementia that has been made in respect to EM but does not believe that EM is wholly incapable in her decision­making.

28 It is not in dispute that EM is a person for whom guardianship and administration orders can be made.

29 EM was diagnosed with dementia in late 2013. Dementia is a progressive condition (report of the hospital geriatrician). EM has significant care needs and I am satisfied, on the evidence, that she has little understanding of those needs and the risks she faces should the appropriate care not be provided.

30 I accept that EM is able to express her preferences but that is not the same as being capable of making significant personal decisions and managing her estate.

31 The evidence shows that EM is dependent upon others for the maintenance of her activities of daily living and the ordinary day­to­day management of her income.

32 I am satisfied, on the evidence, and declare that EM is incapable of looking after her own health and safety, is a need of oversight and care in the interests of her health and safety and is unable by reason of her Alzheimer's disease with its attendant memory loss and confusion, to make reasonable decisions about important personal matters and in the management of her financial affairs.

The evidence and submissions of the applicant

33 The applicant states that EM was admitted to hospital in January 2016 and was observed to have deficits in memory and executive functioning. The applicants state that the most recent admission on 3 August 2016 occurred because EM had sustained a leg injury due to a fall a week prior to admission which had become infected. On admission the applicant says that EM was assessed as malnourished.

34 The applicant states that the support agency raised concerns with the hospital team about the recent weight loss of EM and an allegation that RM had repeatedly cancelled in­home support services for her.

35 The applicant notes that EM lives with RM in the rental property.

36 The applicant questions how EM's pension income is being used, in particular, after having received advice from the support agency, that EM has a debt for in­home services that had been provided.

37 The applicant states that there has been disagreement between RM and her sister, AR as to whether EM should return home to live with RM or be accommodated in a nursing home. The applicant states that it is her current understanding that AR now supports EM returning home to live with RM.

38 The applicant states that initially RM agreed that EM required nursing home care and that RM said she was overwhelmed in the caring role. However, it appears RM has subsequently changed her mind.

39 The applicant submits that RM is emotionally and financially dependent on EM and has her own mental health issues.

40 In her oral evidence the applicant states that RM has signed the ACAT form to enable EM to be transferred to transitional care but, to date, a transitional care bed has not been available.

41 The applicant states that she has had recent discussions with the hospital geriatrician and the view of the geriatrician is that EM requires care in a nursing home. She is aware that RM wishes for EM to return home with extra care but the hospital team is concerned that will not be sufficient and refers to the poor state of EM's health when she was admitted to hospital in August 2016.

42 The applicant states that apart from her cognitive impairment, EM is frail (she weighs only 40 kilogrammes), requires a modified diet and is a high falls risk. She says that she is not absolutely opposed to EM returning home as long as the environment is safe and her significant care needs can be met. She says that as a matter of principle, people are encouraged to live at home for as long as is possible. The applicant states that she has not observed EM in her home environment. She has had conversations with EM and accepts that EM wishes to be at home but that her views fluctuate.

43 The applicant states that the rental property in which EM and RM live is one that allows RM to have animals. She submits that the finances of EM and RM are intertwined and that RM needs EM to pay her share of the rent to maintain the tenancy.

The evidence and submission of the support agency (service coordinator)

44 The service coordinator of the support agency provided a written report and gave oral evidence.

45 In her written report the service coordinator states that EM is entitled to receive a level 4 homecare package through the ACAT process. The level 4 package is the most substantive subsidised package available.

46 The service coordinator states that EM's homecare package is underutilised and, in her view, has not been appropriately managed with funds being diverted to gardening and additional domestic (household) needs.

47 In her written report, the service coordinator states that RM has cancelled EM's supports:

… on a weekly regular basis advising she [RM] is unwell due to her own mental health condition and does not wish anyone to have anyone in the home.

48 Under cross­examination, the service coordinator referred to diary notes prepared by care staff of the support agency and, although there was some evidence of cancellation of services on particular days, she was unable, in my view, to substantiate that they occurred on 'a weekly regular basis'.

49 The evidence of the service coordinator suggests a difficult relationship with RM (although in her evidence RM contends the difficulties have emanated from the support agency).

50 The service coordinator states that EM is very frail and is a high fall risk.

51 When asked whether, in her view, EM can return home, the service coordinator says that is a difficult question to answer and depends on the care that can be provided, not only through a care package, but also by RM and LD. The service coordinator states that if a level 4 homecare package is considered insufficient to meet the care needs of EM, then additional care will need to be purchased if EM is to remain at home.

52 The service coordinator states that she has had ongoing discussions with RM about the fees associated with the in­home support and that, although the support agency has waived between $2,000 and $3000 in fees, a standard daily fee is nonnegotiable and, in that respect, EM has a current debt of $1,133.89.

53 The service coordinator states that the level 4 package in place since December 2014 can no longer be provided by the support agency because of the time EM has been in hospital, however, the package is still an entitlement of EM but if continued, will need to be carried by another agency.

54 The service coordinator supports the appointment of a 'third party' to take on the role of guardian and administrator and says that RM struggles with her own finances and health issues.

The evidence and submissions of LD

55 LD states that he has known EM and her family for approximately 30 years, both in Western Australia and in the United Kingdom.

56 LD describes himself as the friend and carer of EM and RM and has been so for the past five or six years.

57 LD states that until fairly recently (May 2016) he lived with EM and RM as a live­in carer. He says that he is on the tenancy agreement of the rental property as a joint tenant with EM and RM and when he is living with them, he pays his share of the rent and outgoings.

58 LD states that currently he rents alternative accommodation but he is only about three minutes away from where EM and RM live. He says that he continues to be available 24 hours a day to provide care and support for EM.

59 LD states he is in receipt of a carer's allowance from Centrelink for the care that he provides to EM.

60 LD submits that if the level 4 homecare package continues to be available for EM, then she would be able to return home with the package as well as RM and himself providing the care. He says that he would be more than willing to return to living with EM and RM, should that be necessary. He says that he is unavailable from time to time if he needs to deal with family commitments in Europe but otherwise is fully available.

61 LD proposes himself as guardian and administrator for EM should the Tribunal make orders.

The evidence and submissions of AR

62 AR states that she has recently come to the view that if sufficient care is available, then EM should be able to return home, however, she has concerns that the appropriate level of care will not be consistently provided.

63 AR states that she and RM cannot work together to decide and manage the care arrangements for EM. She says that ultimately, RM will do what she wants to do.

64 AR states that she has doubts as to the suitability of LD as the guardian for EM.

65 She supports the appointment of the Public Trustee as the administrator of EM's estate.

The evidence and submissions of RM

66 It is the position of RM that EM should return home. She accepts that the support agency will no longer provide a service under the level 4 homecare package but she says that she has dealt with other agencies in the past and is willing to arrange for another service provider to be employed.

67 RM states that the availability of the level 4 package together with the assistance that is able to be provided by LD remains sufficient, in her view, to meet the care needs of EM at home.

68 RM proposes herself as the guardian for EM but is not opposed to a joint appointment with the Public Advocate, if that is what the Tribunal considers to be in EM's best interests. However, RM considers that she should continue to make the treatment (medical) decisions for EM and that it would be disappointing if a person outside of the family was appointed to make sensitive medical decisions, including the possibility of end­of­life decision­making.

69 RM accepts that there has been an intermingling of her finances with those of EM and, although she is not opposed to the appointment of the Public Trustee as the administrator of EM's estate, she questions whether an administrator is needed, because EM's estate is small. RM also accepts that EM's income has been important in maintaining the tenancy in which she lives and, until her hospitalisation, where EM lived. RM submits, however, that this matter should not be overstated because EM derives significant benefit from the shared tenancy as it has enabled her to continue to live in the community.

70 RM confirms that she and her sister, AR, do not get on.

The evidence and submissions of the Public Advocate

71 The Public Advocate notes the differing views between the applicant and RM and others concerning EM's ability to return home.

72 The Public Advocate expresses a concern about the alleged underutilisation of the level 4 homecare package and questions whether inadequate service provision was a factor in the recent hospitalisation of EM.

73 The Public Advocate submits that RM has a conflict of interest in maintaining EM as part of the tenancy of the rental property and this may impact on RM's view that EM should return home.

74 The Public Advocate submits that EM is in need of a guardian and that, in the circumstances, the Public Advocate should be appointed. The Public Advocate proposes that the functions that should be in the guardianship order are those concerning EM's accommodation and any support services she may require, if she is to return home. The Public Advocate is of the view that treatment decisions can continue to be made by EM's family.

75 The Public Advocate submits that EM is in need of an administrator to deal with, amongst other things, the costs associated with the shared tenancy and also to deal with the debt to the support agency. The Public Trustee is proposed to be appointed as the administrator of EM's estate.

The evidence and submissions of the Public Trustee (Trust Manager)

76 The Trust Manager provided a written report to the Tribunal and also attended the hearing.

77 In his written report, the Trust Manager states that he has liaised with RM in respect of paying EM's share of the household bills and rent. The Centrelink age pension has been redirected to the Public Trustee.

78 The Trust Manager states that he has been unable to determine any major assets belonging to EM, other than a possible half share in a motor vehicle.

79 The Trust Manager states that the cash funds available to EM are approximate $900.

80 At the hearing the Trust Manager stated that he was unaware of the debt to the support agency.

The views and wishes of EM

81 When EM was interviewed by the Public Advocate on 5 September 2016, she accepted the need for a decision­maker and her wish is that RM be given that role. EM told the Public Advocate that, in her view, AR (her other daughter) is too busy with her family.

82 EM advised the Public Advocate that she does not want to go into a nursing home.

83 RM submitted a copy of a will made by EM in 2013 in which she states that she wishes to continue living with RM.

Discussion

84 The most critical issue currently facing EM is the question of where she is to live. She has expressed a wish to return to live with her daughter, RM, but unfortunately (and this is not in dispute) she lacks insight into her significant care needs and how they can be met.

85 The applications have come to the Tribunal principally because the hospital team does not agree with RM that EM's care needs can be met at home.

86 I accept on the evidence that the following is the case. When EM was admitted to hospital in early August 2016, she was in a poor state of health. A contextual element of the hospital admission was that EM was not receiving the full benefit of the level 4 homecare package to which she was entitled and this was exacerbated by a problematic relationship between RM and the support agency.

87 Further elements in the mix in an ongoing way are RM's own health problems and how they might impact on EM's care, the extent of the ongoing role of LD as carer for EM (and to some extent RM) and that RM and her sister AR continue not to be able to work together to achieve a shared understanding of what should happen with EM's accommodation needs which they, as her family, can work towards.

88 In the months that EM has been in hospital, there has not been a resolution to the issues I have described. I am satisfied that the only means by which the matters can be resolved is by the appointment of a guardian with the relevant decision­making authority. This, on the basis that EM is unable herself to decide the question of her future accommodation.

89 A further complicating factor is captured in s 44(1)(b) of the GA Act which states that a proposed guardian cannot be in a position where their interests conflict or may conflict with the interests of, in this case, EM. Read in a straightforward way, this provision, on its face, places an obstacle to the appointment of either RM or LD who have proposed themselves individually as guardians for EM.

90 The property in which RM and EM (and from time to time, LD) live is a private rental in which the three are joint tenants. The situation is that RM and EM have shared the rental and when LD has lived in the property, he too has contributed to the rent. LD does not currently live in the property but, as one of the joint tenants, continues to ultimately be liable for the rent and other costs of the tenancy.

91 In my view, this places both RM and LD in a difficult financial position given the evidence, which I accept, that EM's income has been important in maintaining the tenancy. In addition, LD is in receipt of a carer's allowance, a continuation of which is dependent upon EM continuing to live in the rental property.

92 This is not to suggest that either RM or LD do not want what is best for EM. However, s 44(1)(b) allows for the possibility of a conflict of interest and, in the circumstances of this case, I am satisfied this is a factor and, with the other factors already mentioned, would currently preclude the appointment either or RM or LD as the EM's guardian to decide her accommodation and care needs.

93 I am not convinced in the particular circumstances of EM that RM is assisted by s 44(3) of the GA Act which does not assume that a conflict of interest exists simply by virtue of RM being a relative of EM.

94 I will therefore appoint the Public Advocate as EM's limited guardian to decide where and with whom she is to live both temporarily or permanently and to decide the care services to which she should have access.

95 I accept the appointment of the Public Advocate is contrary to the wishes of EM, but consider it in her best interests that the appointment be made.

96 For the same reasons, I have decided not to appoint RM jointly with the Public Advocate which is provided for in s 44(5) of the GA Act and also because I am not convinced that currently, RM would be able to consider the possibility that EM might need to go into care.

97 I am satisfied however, that RM and AR can continue to make treatment decisions for EM and that if a significant medical intervention was proposed for EM, in that instance, they would set aside their differences. The operation of s 110ZD of the GA Act allows medical decision­making to take place in this way without needing to appoint a guardian: Pt 9C of the GA Act - Persons responsible for patients.

98 I accept the submission of counsel for RM that the Tribunal should not lightly remove this very sensitive decision­making function (which may include end­of­life decisions) from EM's family. As I have already mentioned, the application for a guardianship order largely arose because of a disagreement over how to meet EM's future accommodation and attendant care needs and the appointment of the Public Advocate will deal with those important matters.

99 As regards EM's financial affairs, although she has a very small estate, I am not satisfied that it has been managed in her best interests. It is not uncommon, in my experience, for households to pool the income of its members to meet the shared costs. However, in the case of EM, one of the consequences has been a debt to the support agency of over $1,000 which, at the time of the hearing, she did not have the funds to pay.

100 Although counsel for RM questioned the need for an administration order, there was general acceptance for the making of such an order for EM and that the Public Trustee should be appointed the administrator of her estate. In that regard, one of the factors to be taken into account in deciding who may be appointed administrator is the compatibility of the proposed appointee with the appointed guardian: s 68(3)(a) of the GA Act.

101 In the current circumstances, particularly where RM holds a strong view that EM should return home, it is important that the appointed administrator be able to work with the Public Advocate in the event that a decision is made that EM requires nursing home care and the implications that it would have on the joint tenancy of the rental property that is currently in place.

102 I will therefore appoint the Public Trustee as the plenary administrator of EM's estate. I will give the administrator the authority to make gifts on behalf of EM to the value of $250 per annum.

103 I will set a review of the guardianship and administration orders for the maximum period available under s 84 of the GA Act.

Orders

The Tribunal declares that the represented person, [EM];

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

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

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

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

(e) is in need of oversight, care or control in the interests of her own health and safety; and

(f) is in need of a guardian,


and the Tribunal orders that:

1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.

2. The administrator is authorised to expend up to a total amount of $250 per annum on gifts on behalf of the represented person.

3. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, 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.


4. 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.

5. The administration and guardianship orders are to be reviewed by 28 October 2021.

I certify that this and the preceding [103] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J MANSVELD, SENIOR MEMBER