EP and BB
[2008] WASAT 264
•13 NOVEMBER 2008
EP and BB [2008] WASAT 264
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 264 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2528/2007 | 13 MARCH 2008 15 MAY 2008 11 AUGUST 2008 | |
| Coram: | MS D DEAN (MEMBER) DR E LEIPOLDT (SENIOR SESSIONAL MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER) MS V O'TOOLE (SENIOR SESSIONAL MEMBER) | 12/11/08 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | The Public Trustee appointed plenary administrator This order to be reviewed in one year The enduring power of attorney dated 13 June 2008 is revoked | ||
| B | |||
| PDF Version |
| Parties: | EP BB |
Catchwords: | Application for administration Capacity to make reasonable judgments Need for an administrator Potential conflict of interests Husband not suitable to be appointed administrator Need for an independent decisionmaker |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 64, s 68, s 70 |
Case References: | Nil |
Summary | In December 2007 applications were made to the Tribunal for both guardianship and administration orders for EP, an elderly woman living with her second husband JD. The applications were heard over several months. In May 2008, for reasons outlined in the hearing, an order was made appointing the Public Advocate limited guardian to make accommodation, medical treatment, contact and service decisions. The application for administration was adjourned for further evidence to be provided in relation to EP's capacity to make reasonable judgements in relation to her estate. Evidence subsequently provided to the Tribunal was that EP has dementia and significant memory loss with limited ability to make decisions in relation to her estate.,During the course of the hearings the Tribunal heard evidence that EP's estate left to her by her first husband had been significantly depleted and the properties left to her by her first husband had recently been transferred into joint names with her husband JD. EP was unable to provide clear information to the Tribunal about how her estate is currently managed. She was adamant that she had not transferred or sold the properties which she said she still owned. During the course of the hearings, in June 2008, EP executed an enduring power of attorney appointing JD her attorney. In August 2008 EP advised the Tribunal that she had no memory of executing this document.,The Tribunal found that EP was a person for whom an administration order could be made and that she was in need of an order. The Tribunal further found that, given the confusion in relation to the transfer of the properties, the execution of the enduring power of attorney and the potential conflict of interest if JD was appointed administrator, that an appointment independent of the couple was in EP's best interests. The Public Trustee was appointed plenary administrator for a period of one year. The Tribunal found that operation of the enduring power of attorney was inconsistent with the administration order and revoked it. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : EP and BB [2008] WASAT 264 MEMBER : MS D DEAN (MEMBER)
- DR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)
- 15 MAY 2008
11 AUGUST 2008
- Represented Person
AND
BB
Respondent
Catchwords:
Application for administration - Capacity to make reasonable judgments - Need for an administrator - Potential conflict of interests - Husband not suitable to be appointed administrator - Need for an independent decisionmaker
(Page 2)
Legislation:
Guardianship and Administration Act1990 (WA), s 3, s 4(2), s 64, s 68, s 70
Result:
The Public Trustee appointed plenary administrator
This order to be reviewed in one year
The enduring power of attorney dated 13 June 2008 is revoked
Category: B
Representation:
Counsel:
Represented Person : Self-represented
Respondent : Self-represented
Solicitors:
Represented Person : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 In December 2007 applications were made to the Tribunal for both guardianship and administration orders for EP, an elderly woman living with her second husband JD. The applications were heard over several months. In May 2008, for reasons outlined in the hearing, an order was made appointing the Public Advocate limited guardian to make accommodation, medical treatment, contact and service decisions. The application for administration was adjourned for further evidence to be provided in relation to EP's capacity to make reasonable judgements in relation to her estate. Evidence subsequently provided to the Tribunal was that EP has dementia and significant memory loss with limited ability to make decisions in relation to her estate.
2 During the course of the hearings the Tribunal heard evidence that EP's estate left to her by her first husband had been significantly depleted and the properties left to her by her first husband had recently been transferred into joint names with her husband JD. EP was unable to provide clear information to the Tribunal about how her estate is currently managed. She was adamant that she had not transferred or sold the properties which she said she still owned. During the course of the hearings, in June 2008, EP executed an enduring power of attorney appointing JD her attorney. In August 2008 EP advised the Tribunal that she had no memory of executing this document.
3 The Tribunal found that EP was a person for whom an administration order could be made and that she was in need of an order. The Tribunal further found that, given the confusion in relation to the transfer of the properties, the execution of the enduring power of attorney and the potential conflict of interest if JD was appointed administrator, that an appointment independent of the couple was in EP's best interests. The Public Trustee was appointed plenary administrator for a period of one year. The Tribunal found that operation of the enduring power of attorney was inconsistent with the administration order and revoked it.
Background
4 In December 2007, AW, a hospital social worker, applied to the Tribunal for a guardian for EP because of concerns about EP's safety and wellbeing. EP was, at the time of the applications, dependent on, and living with her husband, JD, in what were said to be squalid conditions. She was not receiving necessary support services into the home because these were, allegedly, being rejected by JD. There were also concerns that the injuries for which EP
(Page 4)
- was hospitalised at the time of the application had been caused by JD and suggestions that there had been previous incidents of unexplained injuries to EP. JD was reportedly aggressive and violent towards hospital staff and members of the community and was, at the time of the application, on charges in relation to an assault on a police officer.
5 Subsequent to the application made by the social worker, BB, EP's daughter, made applications to the Tribunal for the appointment of both an administrator and a guardian. BB expressed concerns about the physical and mental welfare of EP and alleged possible financial exploitation.
6 The applications for guardianship and administration were heard together over several hearings the first two being on 21 December 2007 and 8 February 2008 when a single member part heard the applications and referred the matters to the Pubic Advocate for an assessment of EP's capacity. The Tribunal reconvened on 13 March 2008 and was constituted of three members D Dean, D Stepniak and E Liepoldt.
7 On 13 March 2008 the Tribunal dismissed the application for guardianship made by BB and adjourned both the application for administration made by BB and the application for guardianship made by AW for an assessment of EP's capacity to be make reasonable judgements in relation to her health, welfare and finances.
8 The Tribunal reconvened on 15 May 2008 and found, based on the evidence before it at that time, that EP was a person for whom a guardianship order could be made. The Tribunal further found that there was a need for a guardian to be appointed to make a decision in relation to accommodation, health care, contact with others and services to which EP should have access. After considering whether JD should be appointed guardian the Tribunal found him unsuitable and appointed the Public Advocate as guardian for one year. Oral reasons for the decision were given at the conclusion of the hearing.
9 The Tribunal reconvened on 11 August 2008 to hear the application for administration and was constituted of members D Dean, D Stepniak and V O'Toole.
10 These written reasons relate only to the hearings on 13 March 2008, 15 May 2008 and 11 August 2008 in relation to the application for administration.
(Page 5)
Documents provided to the Tribunal
11 Throughout the course of the hearings JD provided the Tribunal with several lengthy written submissions. Much of the information was repetitive and not relevant to the matters on hand. Of relevance to the Tribunal in relation to the application for administration were the following documents provided by JD:
• A report from Dr G dated 20December2007 provided to JD at his request. The report referred to a Mini Mental State Examination (MMSE) performed on 19December2007 which 'indicates that no significant cognitive impairment has been identified'.
• A report from Dr C dated 12March2008 stating that 'I have been asked to supply this letter by [JD]'. EP 'does not have a significant cognitive impairment when assessed on a standard Mini Mental State Examination'.
• A report from Dr S, GP, dated 21April2008 stating, in part, that he treated EP for 'an acute stress syndrome following interference from her daughter … [who] made her to belief [sic] that her health is very poor and that she should not stay with her husband ... I think that her daughter should not be allowed to make telephonic contact with her'. There was no information in this report in relation to EP's capacity to make decisions for herself.
• Copies of certificate of title for two properties (registered 7March2008) with EP and JD registered as joint tenants. The properties consist of a house which sits on two blocks of land and a vacant block beside the house.
• A copy of an enduring power of attorney (EPA) executed on 13June2008 by EP appointing JD as her attorney. This document was witnessed by two solicitors.
• A copy of a 'National Police Certificate' listing two convictions in relation to JD. One of these is an assault of a public officer for which a fine of $750 was recorded in January2008.
12 Other relevant documents provided to the Tribunal include the following:
(Page 6)
- • Copies of hospital records covering the period from November1977 through to December2007.
• A report from Dr A, general practitioner, dated5December2007 stating that EP has dementia, nonprogressive short term memory impairment, cerebrovascular disease and transitory ischemic attacks (TIA's). Dr A advised that EP's condition will not improve but will fluctuate depending on her medical and emotional state. DrA assessed EP as incapable of making any major life or financial decisions including executing an enduring power of attorney. She referred to a MMSE performed on 4December in which EP scored 17 out of 30 and 15 out of 30.
• A copy of a report from Dr JT, Advanced Trainee Geriatric Medicine and DrLK, Consultant Physician provided to the Office of the Public Advocate dated 16May2008. The report refers to a home visit made by the doctors to EP and a Mini Mental State Examination (MMSE) score of 16 out of 30 which is a reduction on previous tests. The report states that EP has a diagnosis of dementia with 'severe memory deficits'. 'Today she demonstrated capacity to appoint an enduring power of attorney, but not make decisions regarding her living arrangements'.
• Several submissions from BB providing a psychosocial history and outlining her concerns for the safety and welfare of EP and her estate. Attached were various documents including statements from a friend and a service provider in relation to allegedly abusive and inappropriate behaviour of JD towards them. Also attached was a copy of a threatening letter written by JD to several volunteer drivers for meals on wheels service. A copy of this letter was also provided to the Tribunal by the Public Advocate who received a copy from the police.
• Reports from the Office of the Public Advocate dated 11March2008, 8May2008 and 7August2008 providing information in relation to the estate of EP in addition to information relevant to guardianship issues.
(Page 7)
Hearings
13 Parties attended the hearings in person, by video conference and by telephone. Amongst those in attendance were EP, the represented person; JD, her husband; BB, her daughter and applicant; AW, hospital social worker and applicant; a representative from the office of the Public Advocate (Public Advocate). Dr A, EP's GP, attended part of the hearing on 13 March 2008 by telephone and Dr JT who made a home visit on 16 May 2008 attended part of the hearing on 11 August 2008 by telephone. Neither EP nor JD attended the hearing on 15 May 2008. Police Sergeant D attended part of the hearing on 11 August 2008 in person.
14 In making its decision in relation to the application for administration the Tribunal addressed the following questions and issues.
Is EP able to make reasonable judgements in respect of her estate?
15 Early in the course of the hearing on 13 March 2008 and again at the hearing on 11 August 2008 the Tribunal, along with the Public Advocate, spoke alone with EP. EP was clearly confused at the hearing on 13 March 2008 and said she works at the local hotel as a barmaid, a position she has not held for many years. She said she had no memory of transferring the title of the land left to her by her first husband and was adamant that she still owned all three blocks of land. She said she and JD have a joint account that either of them can operate but could not explain how she operates this account or give details of the extent of her estate. JD later gave evidence that they have separate accounts and she operates hers independently of him.
16 On 11 August 2008 on being shown a copy of the EPA she had executed on 13 June 2008, EP said she had no recollection of signing the document and could not explain what it was.
17 Dr A gave evidence at the hearing on 13 March 2008 that EP's memory impairment first became apparent following a stroke in 2004. She said that EP's admission to hospital in December 2007 was the result of injuries which EP was unable to recall the cause of. EP was found, at this time, to be confused and not oriented to time or place. Dr A said that this was the last time she saw EP. She advised that, because of concerns about EP's cognitive functioning, while in hospital she had been referred to a geriatrician in December 2007 for a cognitive assessment but had not attended the appointment. The Tribunal later heard evidence that EP did
(Page 8)
- not attend this appointment because she had discharged herself from hospital against medical advice.
18 The Tribunal heard evidence from BB, EP's daughter that since EP's marriage to JD she has had limited contact with her mother because of JD's sexually inappropriate and verbally abusive behaviour towards her. BB reported that, in recent months when she has had contact with EP, she has noticed a deterioration in EP's memory and her increasing confusion. BB expressed concern that EP has, since their marriage, been financially exploited by JD and described incidences when EP had paid out significant sums of money to facilitate travel to Europe for JD.
The Aged Care Assessment Team and geriatric assessments
19 AW said that JD appeared to be sabotaging attempts for an Aged Care Assessment Team (ACAT) or geriatric assessment to occur. She gave evidence that EP was discharged from hospital prior to the hospital being able to carry out an ACAT assessment which had been programmed for a few days ahead and, as a result of EPs' discharge and non attendance, no geriatric or ACAT assessment had occurred up to this point despite the fact that Dr A was willing to make another referral. She also said that any geriatric assessment should be carried out with EP alone and not in the presence of JD who has a history of not allowing medical and other service providers to have access to EP alone. This was confirmed by the Public Advocate who gave evidence that JD refused to allow her to interview EP alone.
20 JD informed the Tribunal both in his written submissions and in evidence at the hearings that he does not believe that EP has a cognitive impairment and referred to reports he had provided to the Tribunal from Dr C and Dr S to support his view.
21 There was lengthy discussion between the Tribunal and JD about his resistance to and sabotaging of the planned assessments by a geriatrician and the ACAT of EP's cognitive capacity. At the hearing on 13 March 2008 the Tribunal received an agreement from JD that he would allow a geriatrician to assess EP's cognitive capacity and that the assessment would be carried out without him being present in the room. The Tribunal made an order to that effect at that hearing.
22 At the hearing on 15 May 2008, which was not attended by EP or JD, the Public Advocate reported that, as directed by the Tribunal in its order of 13 March 2008, an appointment had been made with the local ACAT to assess EP and an offer was made to transport her to the appointment. JD refused, on behalf of EP, the offer of transport and
(Page 9)
- EP did not attend the appointment. The Tribunal was advised that the ACAT was planning to visit the family home unannounced on 16 May 2008.
23 It was not until 16 May 2008, one day after the hearing on 15 May 2008, that an ACAT and geriatric assessment was finally done when the ACAT and the geriatrician, Dr JT, attended the family home without prior notification.
24 The geriatrician, Dr JT in his report to the Tribunal said he found EP to have 'severe memory deficits' but with the capacity to execute an enduring power of attorney. In order to clarify details of this assessment the Tribunal arranged for Dr JT to attend the hearing on 11 August 2008 by telephone.
25 Dr JT advised the Tribunal, on 11 August 2008, that EP has a diagnosis of dementia and had a MMSE test result of 16 out of 30 on 16 May 2008, losing all the points for recall, orientation, attention, calculation and language and that she needs help with dressing and walking. He advised that, given her 'poor cognitive state' making decisions in relation to management of her estate, including daytoday budgeting, would be too difficult for her.
Is EP's estate at risk?
26 At the hearing on 13 March 2008, JD informed the Tribunal that EP manages her own bank account by way of a cheque book. He said she writes cheques which she cashes at the bank. This evidence was not confirmed by EP who, when spoken to alone by the Tribunal said she has a joint account with JD and could not recall how she accesses this account. JD said that they have separate bank accounts but share household expenses.
27 The Tribunal directed, by way of an order made on 13 March 2008, that JD provide copies of titles to properties left to EP by her first husband. This includes the family home that sits on two blocks of land and another separate block next door. JD gave evidence at the hearing on 13 March 2008 that these properties are jointly owned by himself and EP. He said he purchased the properties in 1997 for $30,000. In her evidence provided to the Tribunal on 13 March 2008, EP was adamant that she continues to hold the properties in her name only.
28 Copies of titles to the properties later provided to the Tribunal by JD show that the transfers had been registered on 7 March 2008, some months after the Tribunal proceedings first commenced in December 2007 and a few days
(Page 10)
- prior to the hearing on 13 March 2008. The titles show that the properties are now held by EP and JD as joint tenants.
29 On 13 June 2008, subsequent to the guardianship order being made on 15 May 2008 and prior to the final hearing on 11 August 2008, EP executed an EPA in favour of JD.
30 In his evidence to the Tribunal on 11 August 2008, Dr JT said that when he assessed EP on 16 May 2008, he thought she understood the implications of executing an EPA but acknowledged that his main focus at the time had been around issues associated with her health and welfare. Dr JT also said that EP, with prompting from hospital staff, had said that she had given JD a half share in her properties. This is not consistent with evidence subsequently provided to the Tribunal by EP on 11 August 2008 when she was spoken to alone by the Tribunal and the Public Advocate. When shown a copy of the EPA EP advised that she did not recognise the EPA signed by her and dated 13 June 2008. She again told the Tribunal that she owned the properties in question and could not remember selling or giving the properties to JD. She appeared confused about details of her estate and was unable to provide clear information in relation to any aspect of her finances. Dr JT, in his evidence, acknowledged that his assessment of EP as understanding the issues and implications associated with executing an EPA may have been affected by the fact that he saw her on a 'good day'. This is consistent with Dr A's written report in which she says EP's cognitive functioning will not improve but will fluctuate depending on her medical and emotional state.
31 JD advised on 11 August 2008, that although he purchased the properties from EP in 1997, it was not until after the application for administration was made by BB that he had EP execute an EPA on 13 June 2008 to facilitate the transfer of the title into his name jointly with hers. This evidence was not consistent with the fact that the properties were transferred into joint names on 7 March 2008.
32 The Public Advocate said that she had been advised by JD that he had arranged for the EPA to be executed to allow him to take out a restraining order in EP's name against her daughter BB. The Public Advocate said that as the guardian with the authority to decide on contact between EP and others she believes there is no need for a restraining order and that the matter will not be proceeding in court.
(Page 11)
33 The Public Advocate advised that her office had been contacted by persons also resident in the country town where EP and JD reside informing that JD had recently purchased an expensive new car. The informants were concerned about where the money had come from for this purchase. JD advised that the alleged new car is in fact a cheap second hand car. This was contradicted by the evidence provided by Sergeant D who advised that the car is a brand new Holden Caprice. JD also advised that he had recently cashed in his $200,000 life insurance and that he has 'two houses in Spain, three houses in France and a shop and one house in England' (T:28). JD also advised that he owns a property in Victoria which he inherited from his parents. He said rates on this property are jointly paid by himself and EP. JD said the properties are owned by him and are in his name solely.
34 The Tribunal was unable to get clear information from JD in relation to bank accounts, both current and present, in the name of EP. In an attempt to get this information the Tribunal made an order on 13 March 2008 that EP, with the assistance of JD, provide to the Tribunal copies of bank statements of any accounts held in her name or jointly with JD. This information was not provided to the Tribunal. When questioned by the Tribunal, JD said he thought he had sent these in to the Tribunal. He advised that EP is in receipt of a pension which is paid into her bank account. He said that they share expenses for the house. He said EP currently has approximately $3,000 in savings. JD gave evidence that he is repaying the loan he took out to pay for the car but it was not clear from his evidence whether this cost is shared by EP. He advised that EP pays half the petrol costs.
35 Sergeant D advised that he has made application for the police fraud squad to investigate concerns raised, it is not clear by whom, in relation to removal of funds from EP's bank account. He further advised that with an administrator in place the police fraud squad's job would be more easily facilitated.
36 The Public Advocate gave evidence that, based on her discussions with EP and the medical diagnoses, she believes that EP is a person for whom an administration order could be made in accordance with s 64 of the Guardianship and Administration Act 1990 (WA) (GA Act). She said that her experience had been different from Dr JT who found EP to have some understanding of her finances in that she found EP to lack understanding about any aspect of her estate. She advised that there is a need for the appointment of an independent administrator to ascertain the extent of EP's assets and to ensure that her interests are protected. She also advised that in her opinion there is a
(Page 12)
- need to revoke the EPA to ensure that it is not used while there is an administration order in place.
Relevant Legislation
37 Section 3 of the GA Act relevantly defines 'mental disability' to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
38 The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the GA Act.
39 These principles are:
(a) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b) Every person shall be presumed to be capable of -
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d) A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e) An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(Page 13)
- (f) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
40 Section 64 of the GA Act provides for the appointment of an administrator as follows:
(1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 -
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate …
(1) An administrator (including a joint administrator) shall be -
(a) an individual of or over the age of 18 years; or
(b) a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal -
(c) will act in the best interests of the person in respect of whom the application is made; and
(d) is otherwise suitable to act as the administrator of the estate of that person.
(1) An administrator shall act according to his opinion of the best interests of the represented person.
(2) Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible -
- (a) as an advocate for the represented person in relation to the estate;
(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 financial 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.
- (3) Nothing in subsection (2)(a) shall be read as authorising an administrator to act contrary to the Legal Practice Act 2003.
(4) Nothing in subsection (2) shall be read as restricting the functions of an administrator at common law or under any written law.
Findings and reasons
43 The GA Act presumes that a person has the capacity to make their own decisions this presumption has to be displaced before any decision can be made in relation to the need for an order. In this case the Tribunal had before it evidence from several doctors in relation to EP's capacity.
44 The Tribunal gave little weight to the evidence provided by the three doctors, Dr G, Dr C and Dr S, who provided reports at the request of JD. None of these are specialists in the area of cognitive capacity and none of them know EP other than superficially. Moreover, the Tribunal is not convinced that these doctors understood the issues at hand when requested by JD to provide reports to the Tribunal. This is confirmed by the report from Dr S with its
(Page 15)
- references to the relationship between EP and her daughter BB which, from evidence provided to the Tribunal appears to reflect the relationship between BB and JD rather than that between EP and BB.
45 The Tribunal found the evidence provided by Dr A and Dr JT compelling and convincing. Dr A, the GP, knows and has treated EP for some time and in her written report EP acknowledged that EP's cognitive functioning can fluctuate but assessed her as lacking in capacity to make reasonable judgements about any aspect of her estate including executing an EPA. This was confirmed in the oral evidence she provided to the Tribunal. Dr JT an advanced trainee in geriatric medicine is familiar with the area of cognitive assessments. Both of these doctors provided evidence that EP has a diagnosis of dementia and severe memory deficits with low MMSE scores which have been reducing over time. They gave evidence in relation to her significant memory deficits and her inability to make reasonable judgements about any major aspect of her life or finances. Dr JT acknowledged in his oral evidence to the Tribunal that his assessment of EP on 16 May 2008 as having the capacity to execute an EPA which was at odds with Dr A's assessment some months before, may have been a result of seeing her on a 'good day'. He advised that he does not believe EP has the capacity to make reasonable decisions in relation to the management of her estate.
46 The Tribunal found the evidence provided by EP herself confirmed the diagnosis of Dr A in that she was confused and was unable to provide clear information about any or part of her estate.
47 The Tribunal was satisfied, based on the evidence of Dr A and Dr JT, the evidence from and presentation of EP herself, and evidence provided by parties at the hearings that EP is a person for whom an order can be made. By reason of her mental disability she is unable to make reasonable judgments in respect of matters relating to any aspect of her estate.
48 Having displaced the presumption of capacity the Tribunal must then address the question of whether there is a need for the order. The Tribunal heard evidence from various parties about the apparent dissipation of EP's estate inherited from her first husband. The Tribunal was unable to get clear information from EP or JD about the extent or management details of EP's estate but, based on JD's evidence, it would appear that there is little left of the estate and even the properties left to EP by her first husband have been transferred into joint names with JD.
(Page 16)
- The Tribunal is not convinced that the alleged sale and transfer of these properties occurred with the full understanding and consent of EP.
49 Although the Tribunal twice spoke alone with EP, it was unable, because of her confusion, to ascertain her current wishes in relation to her estate and the possible appointment of an administrator. That being said it was clear that EP has no memory of executing the EPA on 13 June 2008 in which she appointed her husband JD as her attorney, nor does she understand that the properties left to her by her first husband have been transferred into joint names with JD.
50 JD advised the Tribunal that he has recently cashed in a sizeable life insurance policy and that he has several properties all of which are in his name solely. While acknowledging that he and EP share household expenses he does not appear to accept that EP may have any claim over any of the insurance money or the properties held in his name. The Tribunal is of the view that EP is in need of an advocate to ascertain her rights, if any, in relation to this money and property.
51 The Tribunal found, based on the evidence before it, including the confusion around the execution and use of the EPA, that there is a need for an administrator to be appointed to ascertain the extent of EP's estate including any entitlements she may have to the money and assets referred to by JD as his solely and to advocate on her behalf in relation to these.
52 The Tribunal considered whether there was a less restrictive alternative to the appointment of an administrator, such as the operation of the EPA executed on 13 June 2008 but was not convinced that this would be in EP's best interests as required by the GA Act.
53 Having found that there is no less restrictive alternative to the appointment of an administrator the Tribunal must then address the issue of who to appoint. Section 70 of the GA Act provides that the administrator must act in the best interests of the person and in such a way as to protect the person from financial abuse or exploitation. In considering JD's suitability for appointment as administrator the Tribunal was not convinced that if appointed, he would act in the best interests of EP or ensure that she is not financially exploited. Given the unreliability of the evidence provided by JD, particularly in relation to the bank accounts and the operation of these, the alleged purchase and transfer of the properties into joint names and the execution and possible use of the EPA executed in June 2008, the Tribunal was unable to ascertain whether JD had, or would, act in EP's best interests in dealings in relation to her estate.
(Page 17)
54 The evidence provided to the Tribunal by JD in relation to his money and properties made it clear that he sees these as his solely and does not recognise that EP may have any claim or rights in this regard. For him to be appointed administrator with the expectation that he would advocate on her behalf in relation to these matters would be a clear conflict of interest for JD and the Tribunal is not convinced that he would act in her best interests in this endeavour. For all the forgoing reasons the Tribunal finds that the appointment of an administrator independent of the couple is in EP's best interests.
55 The Tribunal appointed the Public Trustee plenary administrator for a period of one year and revoked the EPA executed on 13 June 2008.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER
0
0
1