EP and AM [2006] WASAT 11

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 11
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1679/2005	Heard:	3 OCTOBER 2005 AND 9 NOVEMBER 2005
Coram:	MR J MANSVELD (MEMBER) DR G HAMILTON (SENIOR SESSIONAL MEMBER) MR J JAMES (SENIOR SESSIONAL MEMBER)	Delivered:	19/01/06
No of pages:	33	Judgment Part:	1 of 1
Result:	The Public Advocate is appointed limited guardian The Public Trustee is appointed plenary administrator
Category:	B
PDF Version

Parties:	EP AM
Catchwords:	Guardianship and administration Need for a guardian and administrator Suitability of proposed guardian Public Advocate appointed as guardian Guardian to act in the best interests of the represented person Guardianship legislation as protective legislation Tribunal able to make a wide variety of orders of significant width Guardianship legislation not generally regarded as intending to supervise guardians in the exercise of their functions
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(c), s 4(2)(d), s 43, s 43(1), s 44, s 44(1), s 44(1)(c), s 44(5), s 51, s 64, s 64(1), s 68, s 68(1), s 86, s 87, s 90
Case References:	EP and AM [2005] WASAT 250 LGW [2004] WAGAB 4 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : EP and AM [2006] WASAT 11 MEMBER : MR J MANSVELD (MEMBER)

DR G HAMILTON (SENIOR SESSIONAL MEMBER)

MR J JAMES (SENIOR SESSIONAL MEMBER)

HEARD : 3 OCTOBER 2005 AND 9 NOVEMBER 2005 DELIVERED : 19 JANUARY 2006 FILE NO/S : GAA 1679 of 2005

GAA 1682 of 2005

BETWEEN : EP

Represented Person

AND

Applicant

Catchwords:

Guardianship and administration - Need for a guardian and administrator - Suitability of proposed guardian - Public Advocate appointed as guardian - Guardian to act in the best interests of the represented person - Guardianship legislation as protective legislation - Tribunal able to make a wide variety of orders of significant width - Guardianship legislation not generally regarded as intending to supervise guardians in the exercise of their functions

(Page 2)

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(c), s 4(2)(d), s 43, s 43(1), s 44, s 44(1), s 44(1)(c), s 44(5), s 51, s 64, s 64(1), s 68, s 68(1), s 86, s 87, s 90

Result:

The Public Advocate is appointed limited guardian

The Public Trustee is appointed plenary administrator

Category: B

Representation:

Counsel:

Represented Person : Self-represented

Applicant : Catherine Crawford

Solicitors:

Represented Person : Self-represented

Applicant : Michael Rogers & Associates

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

EP and AM [2005] WASAT 250
LGW [2004] WAGAB 4
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

1 The represented person is an 88-year-old woman. She was born in South Australia and has lived there all her life. She is married and has a daughter who lives in Western Australia.

2 The daughter had brought the represented person to Western Australia in late 2004 because she felt that the represented person was living in a state of neglect and needed care.

3 In March 2005, the Tribunal appointed the Public Advocate as the represented person's limited guardian to decide where and with whom she should live. The Tribunal also appointed the Public Trustee as the represented person's plenary administrator.

4 The guardian decided that the represented person needed care in an aged care facility and proposed that this take place in South Australia which was her home and was where her husband lived. The daughter disagreed with the decision and sought review of the order appointing the Public Advocate as limited guardian. The daughter maintained that the husband was not willing or able to provide informal care and advocacy for the represented person and that she would be better cared for in Western Australia. She considered that the represented person required care in an aged care facility.

5 The husband disagreed with the daughter and wanted the represented person to return to South Australia so that he could visit her. The represented person's consistently expressed wish was that she live in South Australia and be near to her husband.

6 The Tribunal decided to reappoint the Public Advocate as the represented person's guardian, as the suitable person to make the accommodation decision. The Tribunal felt that the daughter could not objectively consider the represented person's needs as they relate to the relationship with her husband, the context of a best interests decision.

7 As for administration, the daughter proposed that the Public Trustee be reappointed the represented person's administrator to undertake the task of selling her home and paying her debts and accommodation bond. The Tribunal agreed and reappointed the Public Trustee in this role and further ordered that once this had been done, the administrator should seek a

(Page 4)

review of the order so that the Tribunal could consider whether the appointment of the Public Trustee was still needed.

Background

8 These reasons relate to applications for the review of guardianship and administration orders made by the Tribunal for EP (the represented person) in March 2005. The orders appointed the Public Advocate as limited guardian to decide where the represented person is to live and the Public Trustee as her plenary administrator.

9 The applications for review have been made by AM, the represented person's daughter (the daughter). The applications were filed pursuant to s 86 of the Guardianship and Administration Act 1990 (WA)(the GA Act). The Tribunal granted leave to apply pursuant to s 87 of the Act.

10 The applications were heard on 3 October 2005 and 9 November 2005. The first hearing was attended by the represented person, the daughter, CC, counsel for the daughter, CH, partner of the daughter, DC, the delegated guardian from the Office of the Public Advocate (guardian) and JP, counsel for the husband.

11 The applications were heard urgently because of the decision by the guardian that the represented person should return to South Australia to live in an aged care facility. The daughter disagrees with that decision. Because of the short notice of the hearing the husband was unable to appear and obtain legal advice. The hearing of 3 October 2005 was adjourned to enable the husband to respond to allegations made by the daughter that he would not provide informal care and advocacy for the represented person if she returned to South Australia and also to give him the opportunity to get legal further advice.

12 The guardian was directed by the Tribunal not to move the represented person to South Australia until a final determination had been made on the review applications.

13 The hearing on 9 November 2005 was attended by the represented person, the daughter, her counsel, CH, the guardian, and the husband who had travelled from South Australia to attend the hearing in person. The husband was not represented by counsel stating that his solicitor had simply told him to come to the hearing. It had been the understanding of the registry of the Tribunal that the husband and his counsel would attend by video link from South Australia. The husband was assisted by an interpreter.

(Page 5)

Decision

14 The Tribunal has decided to confirm the appointment of the Public Advocate as the represented person's limited guardian with the function of deciding where and with whom she should live. The Tribunal has also decided to maintain the Public Trustee as the represented person's plenary administrator, with the direction that once the represented person's property in South Australia has been sold and her debts paid, the order should be brought back to the Tribunal for review so that the Tribunal can consider whether the appointment of the Public Trustee is still needed.

15 The Tribunal will provide reasons for its determinations by firstly examining the reasons for the original orders made by the Tribunal in March 2005, then summarising the written material and the oral evidence that was presented at the hearings for the review, then stating the relevant legislation and lastly analysing the legislation against the evidence to reach its determinations.

The orders made in March 2005

16 The daughter made the applications which resulted in the orders of March 2005. That Tribunal delivered its reasons for those determinations on 19 September 2005 in EP and AM[2005] WASAT 250.

17 It is relevant to this determination to briefly discuss the original applications and the reasons for appointing the Public Advocate and Public Trustee in March 2005.

18 The represented person is an 88-year-old woman. She was born in South Australia and has lived there all her life. She is married to JR (the husband). She has one child, a daughter who lives in Western Australia and a brother in South Australia from whom the daughter says she has been estranged for over 20 years. The brother received notices of the hearings but did not play a part in either the original proceedings or the hearings for this review.

19 The daughter brought the represented person to Western Australia in late 2004 after visiting her in South Australia and finding that (EP and AMat par 9):

"…she had become very thin, she was not eating properly at all, and the conditions she was living in were unhygienic, including because of some 17 cats and other animals living in the house with her. [The daughter] also told the Tribunal that she was concerned that considerable sums of money were unaccounted

(Page 6)

for, including some which she said her mother had lent to [the husband] and which had not been repaid."

20 The daughter had investigated various aged care facilities for the represented person in Western Australia and one, which she considered suitable, required an accommodation bond that would necessitate the sale of the represented person's property in South Australia.

21 As for the situation of the husband, who had travelled to Western Australia for the hearing, the Tribunal stated at par 14:

"[The husband] told the Tribunal that he and [the represented person] married in 2000; they had rarely lived together, and maintained separate houses. Although they sometimes spent the night at one another's house, he said he did not like being at [the represented person's] house because of its generally poor condition and, in particular, because of the number of animals she kept there which made it smell. However, he told the Tribunal that he would visit every day and would do things around the house and generally help to care for [the represented person]."

22 The daughter had acknowledged that the husband had assisted and supported the represented person but she did not consider him suitable to look after her because he did not want to live with her and because, in her view, there were monies of the represented person which remained unaccounted for, including some which she said the represented person had lent to the husband and which had not been repaid.

23 The represented person had strong views about what should occur. The Tribunal at par 13 stated:

"Although she conceded that she needed some help 'with some things' from time to time, [the represented person] maintained vehemently that she did not want, or need, a guardian or administrator to make decisions for her. She stated that she did not want her daughter to be her guardian or administrator; she did not like Western Australia and wanted to return to South Australia to live with her husband…"

24 After finding that the represented person was incapable of making reasonable judgments about her life and that she was in need of a guardian and administrator the Tribunal decided at par 28:

(Page 7)

"Given [the represented person's] strongly-stated objections to the appointment of [the daughter] as her guardian or administrator, the Tribunal is not satisfied her appointment would be suitable. This is not intended to reflect on [the daughter] but to accommodate, as far as possible, [the represented person's] wishes, and to ensure an appointment is workable. Nor is the Tribunal satisfied that [the husband] would be a suitable appointment. He did not propose himself as either guardian or administrator. Although he was willing to have [the represented person] come to live with him, in all the circumstances, the Tribunal is not satisfied that such an arrangement would be suitable or in her best interests. In particular, [the represented person] now requires a higher level of care than [the husband] is able or willing to provide. Moreover, while each acknowledges the importance of the other in [the represented person's] life, the degree of conflict … could delay decisions that need to be made and that neither would entirely set it aside and act in [the represented person's] best interests alone. The Tribunal finds that the appointment of an independent guardian and independent administrator is in [the represented person's] best interests."

The written material

25 In addition to the application for review a number of documents were submitted and tabled at the hearings. They were:

Submitted by the daughter

1. Reasons for a Review of the Tribunal Ruling of 3 March 2005" prepared by the daughter;

2. A "Chronology" of some of the events in the represented person's life from about December 2000;

3. An undated statement by CH, the daughter's partner. In the hearing on 3 October 2005, CH said that he made the statement on 30 September 2005;

4. A "To whom it may concern" letter dated 20 June 2005 from SD, neighbour of the represented person;

5. The guardian's letter to the daughter dated 22 April 2005;

6. The daughter's letter to the guardian dated 13 June 2005;

7. The guardian's letter to the daughter dated 23 June 2005;

(Page 8)

8. The guardian's letter to the daughter dated 9 September 2005;

9. A "To whom it may concern" letter by Dr W Babe, general practitioner, dated 20 September 2005;

10. Michael Rogers & Associates (Solicitor for the daughter) letter to Dr W Babe dated 29 September 2005;

11. Dr W Babe's response to Michael Rogers & Associates dated 29 September 2005;

12. Copies of Bank SA bank statements for the represented person for the period 9 October 2004 to 8 April 2005;

13. Letter from David Southam of Hannan Containerised Furniture dated 21 October 2005;

14. An undated "To whom it may concern" letter from JN, Veterinarian, of the Prospect Road Veterinary Hospital;

15. Letter from the Deputy Registrar of the Guardianship Board of South Australia dated 13 October 2005; and

16. 15 photographs of the "Granny Flat" attached to the daughter's home.

Submitted by the guardian

1. Letter to the Tribunal dated 29 September 2005 enclosing her "Reasons for Decision" letter dated 27 May 2005; and

2. Further report by the guardian dated 2 November 2005 enclosing a "Chronology of Decision Making" for the represented person from 3 March 2005 to 17 October 2005.

Submitted by the husband

1. Submission received by the Tribunal on 8 November 2005 which is in part a response to the letter from SD (see above) and the submissions made by counsel for the daughter at the hearing of 3 October 2005. It includes a copy of the "Certificate of Marriage" of 22 December 2005 between the represented person and the husband. Also enclosed are copies of several notes or letters allegedly written by the represented person to the husband; and

2. Blank Bank of South Australia withdrawal form allegedly signed by the represented person.

(Page 9)

Submitted by the Public Trustee

1. Report to the Tribunal dated 29 September 2005; and

2. At the request of the daughter's solicitor, a valuation report, as at 30 June 2005, of the represented person's household furniture and effects.

Other documents tabled

1. "Doctor's Guide" prepared by Dr W Babe, general practitioner, on 29 September 2005; and

2. "Primary Carer and Social Work Guide" prepared by R M MacDonald, Residential Care Manager at the Sunshine Park Hostel on 30 September 2005.

Discussion of the written material and submissions

26 On 27 May 2005, the guardian sent her "Reasons for Decision" letter to the daughter advising that she had formed a view that it was in the represented person's best interests to be placed in hostel accommodation in South Australia. The guardian sought further input from the daughter and acknowledged that the daughter believed the represented person should remain in Western Australia.

27 The represented person had stayed with the daughter from October 2004 until 5 January 2005 when she was admitted to Kalamunda Hospital and then to Swan Lodge as her care needs had increased beyond that which could be supported by the daughter. On 14 April 2005, the represented person moved back to Kalamunda Hospital into a "care awaiting placement" bed, essentially temporary accommodation whilst waiting for a permanent placement in an aged care hostel.

28 The guardian had based her view on a number of factors but particularly on the wish of the represented person, consistently expressed by her, that she wanted to return to South Australia to be with her husband. The represented person's general practitioner in South Australia, who had last attended to her in July 2004, was of the opinion that despite her dementia, she would still be able to contribute to the decision-making.

29 The general practitioner had also advised the guardian that the represented person had agreed to come to Western Australia in the belief it was for a holiday only.

(Page 10)

30 The guardian viewed the relationship between the represented person and the husband as "significant".

31 The guardian was satisfied based on her investigations that the husband would maintain contact with the represented person if she returned to South Australia to live. The daughter had advised the guardian that as the husband no longer had access to the represented person's finances, it was her view that he would not continue to have contact with her. The daughter was also concerned that the husband would not take the represented person on outings from the aged care facility as she had done and would continue to do if the represented person was to live in Western Australia. If the represented person returned to South Australia, she would only be able to visit her once a year and that was not enough.

32 The represented person had told the guardian that the daughter had been very "kind and thoughtful" and that she did not want to upset her.

33 The daughter responded to the guardian's letter on 13 June 2005. She made a number of submissions. Firstly, the represented person wanted to return to South Australia only on the understanding that she would live independently; she was ambivalent about where she lived if accommodated in a hostel. Secondly, it was accepted that the represented person wanted to see the husband and that she had "some affection for him". However, the husband seemed to be in poor health and that might restrict his ability to visit the represented person. The husband was a very "poor" driver and the daughter would have "grave concerns" if he took the represented person on outings from the hostel. She also doubted his ability to provide "the toiletries and clothes" that the represented person would need. The daughter doubted the husband "understands the situation" and there was no reason why he could not spend time in Western Australia. Finally, the daughter expressed concerns at not being able to monitor the quality of hostel care in South Australia and that over time without "the comfort and satisfaction of a regular visitor" she could "…only see a very sad time for [the represented person]".

34 On 23 June 2005, the guardian wrote to the daughter responding to her concerns. The guardian stated that the represented person and the husband had "…chosen to marry indicating a strong commitment to each other". The guardian took the view that "it is important that while this relationship can be maintained it should be". The guardian reiterated that her communication with the represented person confirmed her wish that she return to South Australia and see her husband. The guardian had

(Page 11)

spoken with the husband and he too expressed a wish that the represented person live close to him again. The guardian was not able to "comment" on the husband's ability to provide "…the things your mother needs". However, it was her experience that when people move into hostel accommodation it is generally the case that hostel staff liaise with relatives regarding needs. The guardian wanted the daughter to continue to be involved with the represented person's care by establishing a means by which the hostel could liaise with her. It was hoped that as the represented person's care needs increased, the hostel chosen would include facilities that provided high care. As for the husband living in Western Australia, the guardian was of the view that it was his choice to live in South Australia. Finally the decision for the represented person to return to South Australia was "…reviewable if your mother's situation changes in the future".

35 On 9 September 2005, the guardian wrote to the daughter advising that she was hopeful an offer of accommodation for the represented person would soon be made and asked whether the daughter was interested in travelling with the represented person to South Australia.

36 On 20 September 2005, Dr W Babe, the represented person's general practitioner, wrote that she was not fit to travel because she was suffering from an acute viral infection.

37 On 29 September 2005, solicitors for the daughter wrote to Dr W Babe with a series of questions which he responded to on the same day. He stated as follows: he had certified the represented person as fit to travel on or after 30 September; she would likely become temporarily confused by the travel; she could not care for herself and would "…likely become extremely confused if her care is not continuous"; she required hostel care; that care was being satisfactorily provided in her current accommodation; he could not comment on whether the represented person would benefit by being close to the daughter; the daughter would be capable of facilitating the represented person's ongoing care requirements; he was unaware of "support structures" in South Australia and lastly, he had no knowledge of the represented person's relationships in South Australia.

38 The daughter filed the application for review of the guardianship and administration orders with the Tribunal on 28 September 2005.

39 At the hearing on 3 October 2005, the daughter submitted her "Reasons for a Review of the Tribunal Ruling of 3 March 2005". In it she

(Page 12)

expressed concern at the time it was taking to accommodate the represented person permanently and that she had been moved four times since the guardianship appointment. The daughter submitted that moves such as this were detrimental to a person suffering from dementia. She stated that the alleged "animosity" between her and the husband was not "strictly correct". She stated that the appointment of a guardian other than a family member was not a "satisfactory outcome". She expressed concern that once the represented person was in South Australia, she would "lose the guardian" and that "guardianship" would "vest" in the principal of the aged care facility which was unsatisfactory.

40 The "Chronology" submitted by the daughter highlights, amongst other things, a number of withdrawals from the represented person's bank account in South Australia from 21 October 2004 to 2 February 2005.

41 CH, the daughter's partner, submitted a statement at the hearing on 3 October 2005. He recounted his understanding of the events in late 2004 which lead to the represented person being brought to Western Australia. Communication had been received from neighbours, the represented person's doctor and a veterinary surgeon friend that the represented person's living conditions were of concern. The represented person was found in the view of CH, to be in a state of neglect. Utilities were disconnected due to unpaid accounts and this at a time when CH stated he became aware that the husband was withdrawing funds from the represented person's bank account. It was the view of CH that these circumstances did not "…reflect well on [the husband's] intentions regarding the wellbeing of the [represented person] if and when she was transferred back to South Australia and was dependent on [the husband] for ancillary care".

42 In his statement, CH expressed his dissatisfaction with what he saw as "interminable" delays by the guardian to find accommodation when he and the daughter had investigated appropriate facilities in Western Australia; and delays by the Public Trustee, as administrator, to "…recover [the represented person's] funds". CH stated that he and the daughter had incurred considerable expense to "relocate" the represented person to Perth and for her care which "…is surely the domain of the Public Trustee". He stated that he and the daughter had just purchased a new home with a "self contained flat" in which the represented person could live with the husband if he chose to do so. CH's greatest concern was that there would be no guarantee of "satisfactory ongoing care" for the represented person if she returned to South Australia because the daughter would not be able to intervene on her behalf. He stated that the

(Page 13)

daughter would make a "…very worthy trustee and guardian" for the represented person.

43 Counsel for the daughter tabled a letter from SD at the hearing on 3 October 2005. In her letter, SD represented herself as a senior Commonwealth public servant and a "…neighbour for 14 years". She stated that in approximately 1999, the represented person had met the husband and that from "very early on" he started to verbally abuse her. She had strongly advised the represented person to "…get rid of this man from her life on a number of occasions because it was getting more and more apparent that his verbal abuse was gaining momentum and that [the represented person's] behaviour and demeanour was in decline". The represented person was alleged to have admitted to SD that her husband had physically abused her and had used and sold some of her possessions for his own benefit. SD stated that the husband never lived or stayed at the represented person's house. She believed that "…[the husband] significantly contributed to [the represented person's] decline…"

44 The Public Trustee in his report stated that he had been in regular contact with the guardian and had some contact with the daughter regarding the represented person's property in South Australia. The represented person's property would need to be sold to pay for the accommodation bond for the hostel placement decided by the guardian. Mention was made of the need to appoint the Public Trustee of South Australia as the agent for the administrator to enable the property to be sold and that this would incur additional costs for the represented person.

45 Just prior to the hearing on 9 November 2005, the daughter submitted an undated letter from JN, veterinarian who described the represented person as "…a client and friend". She has known the represented person for 20 years. With regard to the husband, JN stated "…he was not the sort of person I would have expected her to associate with" and "…that this was not a healthy relationship for her". The represented person is stated to have told JN more than once that the husband gambled and that he had taken money from her and had sold one of her cars. He allegedly was cruel to cats which "distressed" the represented person. In the last two years she was in Adelaide, the represented person's condition "…mental and physical, markedly deteriorated". Her living conditions became squalid and bills were left unpaid. According to JN, "it appeared to me that [the husband] was not caring for her as a husband would normally be expected to do". JN is concerned that the represented person might return to South Australia.

(Page 14)

She is not aware of anyone who would care for the represented person and "I am apprehensive about her being back with [the husband]. He has told me that he cares for her and he may but I do not believe he has the capacity to give her the support she needs. She concludes by stating her view that the represented person would be "…better off with her daughter".

46 The letter from Hannan Containerised Furniture Removals, dated 21 October, also submitted by the daughter, refers to the removal of furniture and effects from the represented person's house arranged by CH and which took place on 24 March 2005. Mention is made of the house being "extremely messy and untidy" and "poorly kept". There was a "strong stench of cat urine" and the house "looked like it should be condemned".

47 The letter from the Guardianship Board of South Australia dated 13 October 2005, informed the daughter's solicitor that there were currently no proceedings before that Board for the represented person.

48 The husband provided a written submission to the Tribunal on 8 November 2005 through his solicitor who stated that "I took instruction as best as I could". As earlier mentioned in these reasons the submission is in the form of a response to the allegations and views of SD and the submissions of counsel for the daughter made at the hearing of 3 October 2005. In respect of the former, the husband denied that he had ever physically or verbally abused the represented person or that he ever financially abused her. He also stated that the represented person "always slept with me at my place" and that he sometimes lived at the represented person's home. In respect of the latter, the husband stated that the daughter took the represented person to Perth "…for 2 or 3 weeks holiday. She said that my wife will call me to pick her up. My wife did not come". He maintained that he always looked after the represented person and that after the marriage in December 2000, he undertook repairs and painting at the represented person's home. He would go to the pharmacy to obtain her medication and always took her to see her general practitioner. He would continue to provide that sort of care when she was accommodated in a "nursing home". He contended that the daughter "…did me and my wife gross injustice in keeping me away from her. She is not married to her! I am her husband and I am married to her". And further:

"My wife wants me to bring her to South Australia and she wants to see me and to live close to me. She just does not want to live in Western Australia. I cry for my wife for loosing [

sic

]

(Page 15)

her. She has been a good very good lady. I have been good to her. I buy for her everything she needs. We need each other. After all she is not married to her daughter. We have a natural right to be together. What God has joined together let no man put asunder. We have a duty and obligation to love cherish and live together until death doth [

sic

] us part".

49 The husband's submission includes copies of three notes or letters allegedly written by the represented person. They contain a plea to be allowed to return to South Australia but that she was being prevented from doing so.

50 The guardian provided a final written submission to the Tribunal on 3 November 2005. A number of matters were presented. The guardian stated that she had had regular contact with the husband over the period of the guardianship and provided examples of his actions that suggested to her that "…he is both willing and able to provide social support to his wife if she returns to live in hostel accommodation in Adelaide". These "actions" included the husband attending the Tribunal hearing in March 2005, maintaining consistent contact with the guardian and investigating accommodation options for the represented person in South Australia which he then discussed with the guardian. The guardian was aware the husband and the represented person had maintained telephone and letter contact with each other during their separation. The guardian stated that for a period after the hearing in March 2005, the husband had contacted her to ask to see the represented person because he did not know where she was staying. It was clear to the guardian that "…[the husband] still thinks about his wife and wishes her to be close to him. He has accepted the decision that [the represented person] should move to hostel accommodation, and that this is best able to meet her support needs".

51 The guardian did not dispute that the represented person's house may have been "squalid" as represented by the daughter, however, this according to the guardian, was not the husband's responsibility to fix as he lived in his own accommodation. The husband had said that he could not live in the represented person's home because of its condition and the presence of cats. In any case the guardian maintained this was no longer relevant because it had been accepted by all parties that the represented person required hostel level care.

52 In regard to the proposal by the daughter, made at the hearing on 3 October 2005, that the represented person would be able to have short

(Page 16)

stays in the "granny flat" attached to the daughter's new home, the daughter had not raised this directly with the guardian. The guardian had sought advice from the manager at the facility in which the represented person was currently staying and the assessment was that "…[the represented person's] current care needs would mean that even weekend stays would not be advisable". It was also the guardian's view that it was unreasonable to expect the husband to travel to Western Australia on a regular basis to see the represented person even if he could stay in the "granny flat".

53 The guardian acknowledged that the daughter wishes to care for the represented person and stated this is motivated in part by family history and the role the represented person played in caring for her own mother. The daughter had explained to the guardian that as the only child she also expected to be undertaking this role for the represented person.

54 The guardian disputed the daughter's contention that there was "no conflict" between her and the husband. The guardian stated that in communication with her the daughter had said she did not like the husband and that he had financially exploited the represented person. The represented person had told the guardian that the daughter had never liked her husband because she thought he was "after the money".

55 The guardian was of the view that the daughter likely took the "decision" that the represented person was going to stay in Western Australia soon after arriving from South Australia in late 2004. This was because the daughter had arranged an aged care assessment team assessment at that time. In addition, the daughter had located permanent accommodation in Western Australia for the represented person prior to the hearing in March 2005.

56 As regards the issues raised by SD, the represented person told the guardian on 17 October 2005 that SD was a "trouble maker" and not someone that she had got on well with. At that meeting the represented person had also asked the guardian if she had heard from the husband and how he was feeling.

57 In his report Dr W Babe gave a diagnosis of the represented person of "Alzheimer Type Dementia" and stated that a "slow deterioration is to be expected". His opinion is that the represented person is unable to make reasonable decisions about her personal health care, living situation and financial affairs. She suffers from "mild to moderate short term memory deficit [and] poor insight".

(Page 17)

58 In RM MacDonald's report he stated that "[the represented person] is torn between her daughter [and] husband but feels she does not want to move again". And further; "I feel to stop the family conflict it is in [the represented person's] best interest that the Public Trustee continue to manage her affairs as she feels pressure from husband [and] daughter".

The oral evidence (the guardian's submissions)

The guardian's submissions can be summarised as follows:

59 It is the view of the guardian that the represented person requires hostel level care; the questions therefore raised about the level of support she may or may not have received are not relevant to the extent at least that within the hostel environment, appropriate support will be provided for her. It will be the responsibility of the hostel staff to arrange for medical appointments; this does not currently occur with the represented person because she is in respite care and in that situation has to find her own general practitioner. Over time the represented person appears to have gained some understanding of the need for hostel care. She has mentioned that she would like to be close to her husband and that the hostel is in an area she knows.

60 The husband has stated that he wants the represented person to return to South Australia and that he will visit her. He has been in regular contact with the guardian about the represented person and has provided information on the availability of hostels in South Australia. This indicates a desire by him for the represented person to live close to him and it also demonstrates an ability and willingness on his part to assist in finding a suitable place for the represented person to live.

61 The represented person has, over the period of the guardianship, been consistent in her wish to return to South Australia, she sees herself as a South Australian and that is her home. The represented person has said that she does not want to upset her daughter who has been very good to her, but that the relationship "…she wants to be able to get back to is the relationship with her husband…". The consistency with which the represented person has expressed her wish indicates a degree of understanding of what she means by that wish. When last seen by the guardian, the represented person's unprompted comment was to ask about her husband and whether he was aware of what was happening.

62 The views of the daughter have been very clear from the beginning of the guardianship. It would appear that when she brought her mother to Western Australia, the move was intended to be permanent. There

(Page 18)

appears to have been no plans to return the represented person to South Australia and consider services in that State. However, when the decision was finally made for the represented person to return to South Australia, the daughter initially seemed accepting in that she discussed with the guardian about going to South Australia to help her mother settle into the hostel.

63 It is the view of the guardian that the daughter "…does not like [the husband] and she does not like the fact that he's married to her mother..." "And one of the statements she has made is that he has — she believes he has financially exploited her…" (page 15 of the transcript of 9 November 2005.)

64 As regards consultation, there have been discussions about what the daughter wants for her mother, how she feels about the husband and how she felt seeing her mother in late 2004. The daughter has met with the guardian and the Deputy Public Advocate to discuss the decision to accommodate the represented person in South Australia. All of the information has been considered by the guardian in the making of that decision.

The oral evidence (the daughter's submissions)

The daughter's submissions on the review of the guardianship order, presented through her counsel, can be summarised as follows:

65 She accepts that the represented person is a person for whom a guardianship order could and should be made.

66 She is seeking to have herself appointed the represented person's guardian.

67 She accepts that the represented person requires residential accommodation. The daughter proposes that the represented person live in "Greenmount Gardens" which is a new aged care facility in Western Australia. It has large rooms for its residents with en suites. The represented person could have her own furniture in her room and would have access to a garden in which she could plant herbs. A permanent bed is available at "Greenmount Gardens" but only until the close of business today (9 November 2005). The represented person could, if and when she wished, spend some time in the "granny flat" attached to the daughter's new home with or without the husband. The daughter is caring for four of the represented person's cats to which she is very attached.

(Page 19)

68 The Tribunal should give significant weight to the statements of SD and JD because they are independent parties and that when the Tribunal came to its determinations in March 2005, it only had the evidence of the daughter and the husband. The inference to be drawn from this independent evidence is that the represented person would not receive the level of personal support and oversight of her residential care in South Australia as she would were she to remain in Western Australia. The daughter has been visiting the represented person three to five times a week to monitor her care. Counsel contends that on the evidence, the husband would be unable and unwilling to provide that necessary scrutiny of the represented person's care. The submission is that the past behaviour of the husband is the best predictor of future behaviour. The husband had not assisted the represented person when she was found to be living in "deplorable circumstances" and would not do so in the future. It is accepted that the husband thinks about and cares for the represented person.

69 The daughter rejects the argument of the guardian about her motivation for bringing the represented person to Western Australia. The daughter was responding to a serious concern of JD that the represented person was "malnourished" and living in poor conditions. The daughter and her partner took a vehicle with them so that they could bring back the represented person's cats which have been very important to her. The early assessment by the aged care assessment team was in response to the recommendation of the represented person's general practitioner about her general condition and the level of care she would need. The daughter was advised that the represented person would require up to 12 months to "…get her back on her feet". Whilst it was initially agreed that the represented person would stay in Western Australia until she was well, the situation changed when the aged care assessment was made.

70 The daughter supports the relationship between the represented person and the husband. Soon after the represented person was brought to Western Australia in late 2004 the husband turned up at the daughter's home and she accommodated him for five days. The daughter also paid for the husband's return airfare to South Australia after the hearing in March 2005. As for the husband allegedly not knowing where the represented person was staying, the daughter had given the accommodation information to a person whom the husband had asked to contact the daughter for that purpose.

71 The represented person is not now adamant about returning to South Australia as evidenced by the recent report of RM MacDonald,

(Page 20)

Residential Care Manager at the Sunshine Park Hostel, in which the represented person is reported as saying she is "torn" between her daughter and husband and does not want to move again. This reflects that the represented person's "…own thinking has moved on…"

72 The guardian is required by the GA Act to make decisions in the represented person's best interests. She has however, given undue weight to the represented person's wishes which is but one factor in the overall assessment of best interests. Even the wish of the represented person needs to be taken in the context of her dementing condition and her perhaps idealised view of what it is she is to return to in South Australia. In that regard the daughter does not agree with the general practitioner's assessment from South Australia that the represented person is able to contribute to the decision-making to the extent that he says, given that he last assessed her in July 2004.

73 The guardian has erroneously ranked the represented person's relationship with the husband over that of the daughter and it is misconceived to make the accommodation decision on that basis rather than the represented person's overall best interests. The daughter does, however, acknowledge that the represented person's relationship with the husband is an important one and it is not the intention "…to stand in the way of this relationship" even though it has been "most unconventional". The daughter disputes that there is a conflict between her and the husband, only that there are "different perspectives" about where the represented person should be accommodated.

74 It is not in the represented person's best interests to state, as the guardian has, that if the decision to accommodate her in South Australia does not work out the decision could be reviewed. The represented person is elderly and a decision about her accommodation should be made as if it were a permanent decision.

The daughter's submissions on the review of the administration order, presented through her counsel, can be summarised as follows:

75 She accepts that the represented person is a person for whom an administration order could and should be made.

76 She is not seeking to have herself appointed the represented person's administrator at this time.

77 The daughter submits that the husband has financially exploited the represented person by improperly accessing her bank account. The

(Page 21)

following cash withdrawals were made from the Dudley Park branch of the represented person's Bank SA account which is not the "home" branch for the represented person. These withdrawals were made since the represented person has been in Western Australia. On 18 November 2004, $750 was withdrawn; on 16 December 2004, $750; on 13 January 2005, $600 and on 2 February 2005, $550. There is an earlier withdrawal of $360 on 21 October 2004 but the daughter's submission is limited to the withdrawals from 18 November 2004 because on 4 November 2004 she requested the bank to freeze the account.

78 The daughter is concerned that should the represented person return to South Australia and she has any cash in her possession, then that cash would be susceptible to being removed by the husband for his own purposes.

79 The daughter contends that items from the represented person's house have gone missing and these might have been disposed of in garage sales conducted by the husband. The particular items are a French clock, a complete dinner service and a tea service.

80 The daughter accepts the proposition of the Public Trustee, as current administrator, that the represented person's house needs to be sold to allow for the payment of the accommodation bond when hostel accommodation is secured.

81 The daughter proposes that the Public Trustee be given the authority to sell the house, pay the represented person's debts and that any balance of funds remaining in her estate be managed by her even if the Tribunal decides to confirm the Public Advocate's appointment as guardian. The daughter further proposes that the Public Trustee be directed to consult with CH about how best to prepare the house for sale given his experience and expertise in that field.

The oral evidence (the husband's submissions)

The husband's submissions can be summarised as follows:

82 The guardian's decision to accommodate the represented person in a hostel in South Australia is supported.

83 The relationship with the represented person has been "very good…it couldn't have been better when we were living together. That's why she wants to come back to live with me, because it was good". And further: "What do you say, I got married to her. Why did they--why did they get--married to her? I wanted her to be with me. Why now, she's supposed to

(Page 22)

be over here and myself in Adelaide. I wanted her to be with me". (pages 45 and 49 of the transcript of 9 November 2005)

84 As to the living arrangements: "Its only if I didn't sleep over that night. I didn't sleep every night over there. Then I would ring in the morning and ask her if she had something to eat. Then I would cook soup or something, and I would bring it to her". (page 45 of the transcript of 9 November 2005)

85 On the represented person's health when she went to Western Australia in late 2004: "She was healthy. She wasn't ill. And she said her daughter's coming for a visit". (page 46 of the transcript of 9 November 2005)

86 And on the reason for the represented person travelling to Western Australia with the daughter: "When she was leaving with her daughter, she was okay. We kissed each other goodbye, and then she said 'John, I'll be going away for 2 or 3 weeks and when I come back, I will ring you.' And she said to look after the house". (page 48 of the transcript of 9 November 2005)

87 On the daughter's proposal that he could visit and stay in the "granny flat" attached to the daughter's house: "That's all very well, but then on the other hand, over there she's got her own house. She was born over there, and she's got husband. Plus she's got a brother there..." (page 50 of the transcript of 9 November 2005)

88 And lastly: "What can I say? On my own, I would like to be with my wife, or visit her if she is over there. In the end, when I got married, I lost my children. My kids won't visit me because I got married. And now I'm losing her. What sort of a life is going to be after that"? (page 52 of the transcript of 9 November 2005)

89 As regards the allegation by the daughter that the husband has improperly used the represented person's funds, he admits to withdrawing the cash from her bank account. He states that the represented person allowed him to do so in order for him to be able to travel to Western Australia to see her and for the Tribunal hearings. He could not withdraw funds from his deposit account because he would lose interest if he did so. The represented person signed blank deposit slips for him to use. The husband says he might have also used the money to pay some of the represented person's bills.

(Page 23)

90 The husband stated that he is holding some of the represented person's personal property for safekeeping. Nothing has been sold. He says he is holding the French clock, a microwave oven, two black horse statuettes and some plates and glasses.

The oral evidence (the represented person)

91 The Tribunal decided not to take direct evidence from the represented person given her illness and the uncontested evidence that she feels "torn" between her husband and daughter. The Tribunal accepts the submissions of the guardian about the expression of her wishes.

92 The represented person did, however, make several comments during the hearings which bear on some of the evidence that was presented by other parties. With regard to SD, the represented person stated:

"I don't want to hear any more about [SD] because [SD] is not what she seems. I've seen her for years since she's been there and I know the sort of woman she is. She has been married a number of times. I wouldn't say there's anything wrong with that but the fact is I've seen a man chasing her around the house at night and saying 'Yes, you were going to hit me weren't you, weren't you?'…(indistinct)…comes out with arguments …(indistinct) … as though she's got something against me." (page 18 of the transcript of 3 October 2005)

93 As to the living arrangements: "Well, it was only because of the cats that I didn't go down to his [the husband's] place, because he couldn't come up to my place because of the cats there all the time. There's a lot of them". And further: "Well, if he [the husband] didn't come in the morning he would always ring me during the day and says, 'Have you got something there? Have you got something to eat"? (pages 43 and 45 of the transcript of 9 November 2005)

The relevant legislation

94 The powers of the Tribunal on review of guardianship and administration orders are set out in s 90 of the GA Act, which provides:

"(1) Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order –

(Page 24)

(a) amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;

(b) revoke the order, or revoke the order and substitute another order for it; or

(i) revoke the appointment of any guardian or administrator;

(ii) appoint a new or additional guardian or administrator;

(iii) appoint an alternate guardian.

A review under this Part is in the State Administrative Tribunal's original jurisdiction."

95 When considering guardianship and administration, the Tribunal must be satisfied that the represented person is someone for whom a guardian and administrator could be appointed (the question of capacity) and if found incapable, whether the person should have a guardian and administrator appointed (the question of need). If a guardian and administrator are to be appointed, the final questions to be considered are what functions should be given to the guardian and administrator and who that guardian and administrator should be.

96 The relevant legislation is contained in s 3, s 4, s 43, s 44, s 64 and s 68 of the GA Act.

97 With regard to guardianship, the Tribunal needs to be satisfied that the represented person is incapable of looking after her own health and safety, or 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, and is in need of a guardian (s 43).

98 With regard to administration, the Tribunal needs to be satisfied that the represented person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate and is in need of an administrator (s 3, s 64).

(Page 25)

99 The principles to be observed by the Tribunal when dealing with proceedings under the GA Act are set out in s 4. The primary concern of the Tribunal shall be the best interests of the represented person. The remaining principles are, firstly, that every person is presumed to be capable of looking after his or her own safety and health; of making reasonable judgments in respect of matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate. Secondly, an order appointing a guardian or administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of action and decision. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.

100 The question of who should be appointed guardian is provided for in s 44 of the GA Act which reads:

"(1) A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal -

(a) will act in the best interests of the person in respect of whom the application is made;

(b) is not in a position where his interests conflict or may conflict with the interests of that person; and

(2) For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible -

(a) the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;

(Page 26)

(b) the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;

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

(3) Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.

(4) The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.

(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act."

101 The question of who should be appointed administrator is provided for in s 68 of the GA Act which reads:

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

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

;

(b) a corporate trustee,

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

;

and

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

(Page 27)

(2) The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the

Trustee Companies Act 1987

unless it is satisfied that -

(a) there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company

;

(b) the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.

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

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

(b) the wishes of that person; and

(4) The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.

(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.

Discussion of the evidence and findings of the Tribunal (guardianship)

102 There is no dispute that the represented person remains a person for whom a guardian could be appointed. She is reported by Dr W Babe, the general practitioner, as suffering from Alzheimer's type dementia which is

(Page 28)

a progressive condition that prevents her from looking after her own health and safety and compromises her ability to make reasonable judgments in respect of personal matters. Her incapacity has produced a legal vacuum in the decision-making in fundamental areas of her life, including that of deciding where and with whom she should live. She therefore satisfies the provision of s 43(1) of the GA Act.

103 There is disagreement between the husband and the daughter of the represented person on where she should live, and on the evidence presented to the Tribunal, the difference of opinion is not open to resolution by informal means, which if possible, might have precluded the need for the appointment of a substitute decision-maker. The Tribunal therefore finds that the needs of the represented person pursuant to s 4(2)(c) of the GA Act, cannot be met other than by the appointment of a guardian.

104 The crucial question is, who should be the guardian.

105 Section 44 of the GA Act states that the Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person suitable and willing to act. The daughter is willing to act but is she suitable?

106 In the March 2005 decision to appoint the Public Advocate and not the daughter as limited guardian, that Tribunal pointed to the represented person's objection to the appointment of her daughter, the conflict between the husband and the daughter and how that might delay decision-making and also how in the Tribunal's view, "…neither could entirely set it [the conflict] aside and act in the [represented person's] best interests". (EP and AM at [28])

107 The evidence shows that the represented person thinks highly of the daughter and is thankful for what she has done whilst the represented person has been in Western Australia. However, the Tribunal finds that the represented person views the primary relationship in her life as the one with her husband. The Tribunal does not accept the daughter's argument that this view is unduly influenced by the represented person's dementing illness. In the view of the Tribunal, the represented person's attitude is an emotional response to a relationship that culminated in a marriage in 2000 and it is not diminished by reason of her loss of capacity. The Tribunal therefore sees no need to question that the wish of the represented person would continue to be that the daughter not be appointed guardian, if not solely for the decision that the daughter favours having her live in

(Page 29)

Western Australia, then for the fact that she feels "torn" between the husband and the daughter.

108 The daughter argues that she is not in conflict with the represented person's husband, they simply have "different perspectives" on where the represented person lives. She argues that she supports the relationship and has demonstrated that by her actions; she acknowledges that the relationship is important for the represented person, she has not prevented the husband from visiting, she has accommodated the husband when he was in Western Australia in late 2004 and she paid his airfare to return to South Australia and if the represented person were to remain in Western Australia she would allow the husband to stay in the "granny flat" when he visits.

109 The Tribunal is not convinced by the daughter's argument and accepts the submission of the guardian that the daughter is not favourably disposed to the husband and is reluctant to accept the marriage. The evidence shows that the daughter was not convinced that a marriage had taken place until informed of the existence of a marriage certificate early in 2005.

110 The daughter's attitude to the husband is not of itself fatal to her appointment as the represented person's guardian. However, the Tribunal must be satisfied that the daughter can put her attitude to the husband to one side and make a dispassionate, objective assessment of the represented person's best interests. The Tribunal is not satisfied the daughter can take that objective position.

111 The Tribunal does not question the daughter's affection for the represented person. The evidence shows that she wants to play the primary role in the represented person's care and that she sees this as her responsibility. However, by assuming that position and with her attitude to the husband, she has effectively foreclosed consideration of the option of the represented person returning to South Australia. The daughter's submissions are therefore directed to convincing the Tribunal that the husband is not willing or able to provide informal care and advocacy for the represented person if she returned to South Australia; that the relationship itself between the represented person and the husband should be questioned because they have not resided together and it has been in other ways, "unconventional"; and that the principal aim of the husband in the relationship with the represented person is financial gain.

(Page 30)

112 Even were the Tribunal sympathetic to the daughter's submissions about the husband, and certainly some of the evidence paints the husband in an unfavourable light, the role of a guardian is to assess the needs of the represented person without a preconceived opinion about what the decision should be. This, no doubt, is a difficult thing to do when confronted with a vulnerable family member, but it is critical to the making of a decision in the person's "best interests" when competing views are presented and the person has been found no longer capable of making the decision in their own right. The Tribunal is not satisfied that the daughter can objectively consider her mother's needs as they relate to the relationship with her husband, in the context of a "best interests" decision.

113 Pursuant to the provisions of s 44 of the GA Act, the Tribunal finds that the daughter is not suitable to act as the represented person's guardian. By virtue of that finding and the fact that no other person is proposed as guardian, then in accordance with s 44(5) of the GA Act, the Public Advocate must be appointed. There was no argument put that the function of the guardian should be any more than deciding where and with whom the represented person should live and in observing the principle that a plenary guardian should not be appointed if a limited guardian is sufficient (s 4(2)(d)), the Tribunal will restrict the guardian's authority to the accommodation decision.

114 As mentioned earlier the submissions of the daughter were that the decision of the guardian to have the represented person return to South Australia is not in the represented person's best interests. It was not argued by the daughter that should the Public Advocate be reappointed as guardian, that the Tribunal should further order the guardian to make the decision in a particular way or to give greater consideration to certain factors than to others. The guardian must make her decision in the best interests of the represented person and this is amplified in s 51 of the GA Act to include but not be limited to certain matters but also subject to any direction of the Tribunal:

115 Section 51 provides that:

"(1) Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person.

(Page 31)

(2) Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible -

(a) as an advocate for the represented person;

(b) in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;

(c) in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;

(d) in such a way as to protect the represented person from neglect, abuse or exploitation;

(e) in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;

(f) in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;

(g) in such a way as to maintain any supportive relationships the represented person has; and

(h) in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment…"

116 In her letter to the daughter of 27 May 2005, the guardian gives her view of the represented person's best interests, that being to accommodate the represented person in South Australia, in the context of the requirements of s 51. In summary, the guardian states as follows: she has advocated for the represented person's rights and wishes; the represented person has lived all of her life in South Australia, that is where her "community" and familiar environment is; the guardian is satisfied the husband will visit her; the decision has been made for hostel care and the represented person is under administration, she is therefore "protected";

(Page 32)

the represented person's wishes have been consistently expressed that she wants to return to South Australia and see her husband; the guardian has allowed the represented person to contribute to the decision-making; she has a marriage relationship with the husband in South Australia and prior to her coming to Western Australia with the daughter on the understanding it was for a visit, the daughter would see her mother in South Australia at least yearly.

117 The GA Act is essentially protective legislation designed for people whose faculties are impaired (Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268). While it allows for a wide variety of orders of significant width (see for example LGW [2004] WAGAB 4), the legislation should not generally be regarded as intending to supervise guardians or administrators in the exercise of their functions and responsibilities. Decisions made by guardians and administrators should be in the person's "best interests" and while some guidance is given in the legislation it is fundamentally a process of judgment and discretion.

118 The Tribunal has decided that the appointment of the Public Advocate as guardian for the represented person is the appropriate one and sees no need to fetter her decision-making.

Discussion of the evidence and findings of the Tribunal (administration)

119 As with guardianship there is no dispute that the represented person remains a person for whom an administrator could be appointed. She has a mental disability and because of that disability is unable to make reasonable judgments in respect to all of her estate. The Tribunal refers to Dr W Babe's assessment in this regard. The represented person's income needs to be managed and her house needs to be sold to enable an accommodation bond to be paid. These are matters that in the circumstances of the represented person can only be done by a person with legal authority. She therefore satisfies the requirements of s 64(1) of the GA Act when read together with the principle of the less restrictive alternative under s 4(2)(c). The represented person is in need of an administrator.

120 The Tribunal makes no findings on the daughter's allegation that prior to the order for administration made by the Tribunal in March 2005, the husband improperly accessed the represented person's bank account.

121 The daughter has proposed that the Public Trustee should remain the represented person's administrator, at least to enable her house to be sold

(Page 33)

and her debts paid and once this is completed and an uncomplicated estate remains, there might be scope for a review of the order. It is not clear to the Tribunal what the views of the guardian and the husband are in this regard.

122 The Tribunal agrees that, pursuant to s 68 of the GA Act, the Public Trustee should be reappointed as the represented person's administrator and given the range of tasks to be undertaken, a plenary order is appropriate.

123 To give effect to the proposal put by the daughter, with which the Tribunal agrees, the order will further authorize the administrator to sell the represented person's property in South Australia in such manner and on such terms and conditions and for such purposes and price as the administrator thinks fit. Upon completion of the sale of the property and the payment of all debts then owing by the represented person, the administrator is to apply to the Tribunal for a review of the order.

I certify that this and the preceding [123] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J MANSVELD, MEMBER