ES
[2020] WASAT 98
•11 AUGUST 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: ES [2020] WASAT 98
MEMBER: DR E MARILLIER, MEMBER
HEARD: 5 MAY 2020, 28 JULY 2020 AND 11 AUGUST 2020
DELIVERED : 11 AUGUST 2020
PUBLISHED : 21 AUGUST 2020
FILE NO/S: GAA 1294 of 2020
ES
Represented Person
Catchwords:
Guardianship - Administration - Capacity for reasonable judgment - Least restrictive alternative
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(3), s 40, s 43, s 44, s 64, s 68, s 70, s 84, s 110ZD
Result:
Appointment of private plenary administrator and private limited guardian
Category: B
Representation:
Counsel:
| Represented Person | : | Greg Dunne and Emma Fiegert |
Solicitors:
| Represented Person | : | Slee Anderson & Pidgeon Lawyers |
Case(s) referred to in decision(s):
XYZ (Guardianship) [2007] VCAT 1196
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard on 5 May, 28 July and 11 August 2020. Orders were made on 11 August 2020, and oral reasons delivered on 20 August 2020. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and set out).
Introduction
This matter came before the Tribunal by way of an application dated 1 April 2020 made under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act). The application was made by AC who sought the appointment of an administrator for the estate of, and a guardian for her mother, ES.
AC was concerned for the physical and financial well-being of ES, particularly as bills were not being paid, she was giving away valuable assets and she had recently had several falls requiring admission to hospital. ES lived in an isolated home, was unable to drive and had limited mobility as a result of her Parkinson's disease. The applicant said she had discussed all options with ES's General Practitioners (GP) and geriatrician, and felt that ES was no longer capable of making safe decisions.
The matter was heard over three dates. The first hearing on 5 May 2020 was attended by ES, AC, a representative from the Office of the Public Advocate (Public Advocate) JP, and the legal representatives for ES, GD and EF. ES contested the finding of her doctors that she lacked capacity, and the matter was adjourned to 28 July 2020 to allow for additional capacity testing and opinion to be sought by ES.
Subsequently ES suffered further falls at home fracturing her wrist, despite having arranged for a friend to act as a live-in carer. ES was admitted for respite care while she recovered from her injury. She underwent further testing with psycho-geriatrician Dr ND and his report was available for the second hearing on 28 July 2020 which was attended by the same parties. It was not possible in the time available to complete all submissions, and the matter was adjourned to a third hearing on 11 August 2020.
The relevant legislation
In coming to its findings and determinations, the Tribunal must observe the principles set out in s 4 of the GA Act:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)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.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)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.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) 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.
(6)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.
(7)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.
Section 43 of the GA Act is also relevant:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(a)has attained the age of 18 years;
(b)is
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied[.]
Section 64 sets out the principles the Tribunal must consider in regard to appointing an administrator:
(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,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied[.]
If the Tribunal is satisfied that the presumption of capacity is rebutted, and that there is a need for orders appointing a guardian and/or an administrator, it must then determine:
1)whether any order should be plenary or limited, what functions should be conferred, and whether any directions or conditions should be placed on the order(s);
2)who should be appointed as guardian and/or administrator; and
3)when should the order(s) be required to be reviewed by the Tribunal?
Capacity
The starting point for determining whether a guardianship or an administration order should be made is the fundamental, but rebuttable, presumption of capacity found in s 4(3) of the GA Act.
This was the area that was most contentious in this matter. The evidence before the Tribunal included:
Medical reports:
Dr GF (GP) dated 16 April 2020 stated the diagnosis of Parkinson's dementia with a Montreal Cognitive Assessment (MOCA) score of 16/30. He found ES not capable in any field of financial or personal decision-making, noting she lacks insight and is fiercely independent. He was unsure of her capacity to execute a valid enduring power of attorney or guardianship (EPA and EPG).
Dr RS (GP) dated 2 May 2020 agreed the diagnosis was dementia, and made the comment 'it is clear that [ES] is lacking in insight about the implications of some of her actions i.e. alcohol intake, driving and associated falls'. He noted she had a progressive condition, but was unsure of her capacity for simple financial decisions, found her incapable in regard to complex and legal matters, unsure regarding medical treatment, capable for accommodation, unsure regarding services, and capable of an EPA and an EPG. He attached discharge summaries and correspondence from Bunbury Hospital regarding ES's diagnosis of Parkinson's disease, multiple falls, an episode of unconscious collapse and concerns regarding cognitive impairment.
Dr PR (a specialist geriatrician) in a report dated 30 April 2020 gave a diagnosis of moderate cognitive impairment of likely mixed pathology, MOCA 16/30, stated the condition was progressive, and found ES incapable in all areas of financial, legal and personal decision-making including for the execution of an EPA and an EPG. He attached a letter to Dr GF dated 31 March 2020 summarising progress between August 2017 and 31 March 2020 noting inconsistent adherence to taking medication, numerous falls, poor insight and decline in short-term memory affecting decision-making. The letter notes repetitive conversation, being forgetful regarding appointments and deficits in planning and problem-solving. Capacity was assessed in regard to medical, lifestyle and financial decisions and it was concluded that ES lacked capacity in these areas and AC was advised to put in the application for substitute decision-makers.
Dr PR sent a further letter to the Tribunal dated 23 June 2020 confirming his opinion that ES had moderate memory loss with dysexecutive syndrome, and limited capacity including testamentary incapacity. He attached a Rowland Universal Dementia Assessment Scale (RUDAS) score of 24/30.
Dr ND (a specialist psychiatrist) provided a report dated 14 July 2020 to the legal representatives of ES which was provided to the Tribunal. Dr ND had access to the reports listed above. Dr ND's extensive report concluded that ES was suffering from mild dementia probably of Alzheimer's type. This was confirmed by the MiniMental State Examination (MMSE) score of 22/30, and the patchy memory deficits he noted during his assessment. Dr ND described the historical evidence of strong determination in ES's character, and considered that this personality characteristic rather than frontal lobe impairment was the reason for her refusal to accept that she was too physically impaired to drive safely. (He noted that he observed physical slowness that would represent a risk, and that he thought it was appropriate that the decision of whether or not to drive had been taken away from ES.) Dr ND thought that ES had capacity to make a valid EPA and to make a will. He also felt that she was probably capable of pursuing simple financial matters. He noted that he did not have the details regarding her financial situation and so was unable to form a clear view regarding her capacity in relation to complex financial decisions. Dr ND was also uncertain regarding ES's capacity to make decisions regarding her medical treatment (particularly noting her patchy understanding of her medication). He noted she had firm ideas about where she should live and that as far back as September 2019 there is evidence in the reports of other doctors of a resistance to consider alternative living arrangements. He noted that 'the most important development since that time was that she is no longer able to drive and at the moment she is preoccupied with the idea that this is unfair and an inappropriate imposition, rather than taking the next step of thinking about its implications regarding her further accommodation'.
Dr ND noted that he did not have the details of ES's recent falls and hospitalisation and how she was able to get help and as a result he found himself uncertain as to whether ES was capable of making decisions about her accommodation. He commented 'I rather lean to thinking that she is capable of making decisions. It's just that she is not making good decisions, or decisions that I would wish her to make if I were her child. I can certainly understand her daughter's concern'. He thought that ES was able to make decisions about the services that she would receive at home. He noted that he had no doubt that ES has the capacity to pursue legal matters given that she had been able to gather the information and take the steps needed to be legally represented at the hearing.
Dr HG (GP) in a report dated 11 August 2020 said ES has dementia which is progressive and that she is incapable of simple and complex financial decision-making, legal matters and all personal decisionmaking including medical treatment, accommodation and services. He felt she was not capable of executing an EPA or an EPG and he attached copies of letters from 31 March 2020 and 23 June 2020 from Dr PR.
Allied Health reports
An Aged Care Assessment Team (ACAT) assessment date 2 July 2020 reports a medical history of cognitive impairment, peripheral neuropathy, Parkinson's disease, falls, depression, stroke affecting lacunar basal ganglia on CT April 2019, psoriasis, osteoporosis, right knee and hip replacement, a fall in 2016 causing a crush fracture of the L4 vertebra requiring surgery and postural hypotension. It reported ES had had multiple falls in the previous six months with the most recent resulting in the right Colle's fracture for which at this time she was receiving respite care. It was noted that ES was experiencing involuntary head and leg tics while lying in bed. It noted concerns by GP, Dr HG, regarding self-neglect and personal hygiene. During respite ES had assistance with showering and dressing due to her falls risk and had had significant improvement in her skin condition as a result. ES was having assistance with toileting and at times needed encouragement with regard to continence aids. ES had been compliant with taking medication under supervision at Bethanie. It was noted that ES had signed an EPA on 4 June 2020 nominating AC as her attorney. ES was oriented in place and person, understood why she was at Bethanie for respite and discussed how she could pay for her care without selling her home. She had asked to be on a waitlist for permanent care for use in the future but stated she would prefer to return home. The ACAT summarises testing at Bunbury Hospital geriatric clinic on 22 June 2020 by the nurse including a RUDAS score of 24/30 with deficits in visuospatial memory and recall, a MOCA score of 21/30 with deficits in executive function, clock drawing language and recall areas and a MMSE score of 26/30 with deficits in orientation, repetition and three stage command. The ACAT recommendation was that ES would benefit from permanent care.
The Tribunal also has been provided by ES and her legal representatives with a copy of receipts from Southwest Community Care showing domestic assistance and meals and social support being provided to, and paid for by ES between December 2019 and April 2020 and a Psychogeriatric Assessment Scale as part of the Cognitive Impairment Scale (PAS CIS) assessment by the occupational therapist (OT) HS, on 21 January 2020 showing no impairment.
Additional submissions before the Tribunal
ES has employed an accountant, MS for many years. He provided a statement to the Tribunal dated 4 May 2020, indicating that he had found ES to be alert, very clear in her instructions to him regarding the management of her assets, and confirmed the details of her estate which largely corresponded to those ES explained to Dr ND in terms of the property she owns, but I note that she was not able to explain to Dr ND why she needed to do a tax return, or the (significant) value of her savings accounts. MS explained that he would be happy to continue as her accountant and what his hourly charges would be.
Written submissions of AC 30 April 2020 and 9 August 2020
Prior to the first hearing, AC provided evidence of the extensive telephone and in-person contact and support she provided to ES in the previous 12 months, in the form of telephone records, photographs and bank records.
Prior to the third hearing, AC provided detailed written submissions including photographic and documentary evidence in regard to her concerns about ES's capacity for personal and financial decisionmaking in her own best interests, and her vulnerability to exploitation. This included details of arrangements ES has made to have unqualified people (such as farm labourers) live with her rent free to try to assist her in staying at home, giving her bank card to people, and taking $4,000 out of the bank and keeping it unsecured in her home, to which she allowed multiple people uncontrolled access.
AC also provided photos of wounds ES had sustained after falls at home, details regarding her inability to access appropriate assistance, refusal to use a pendant alarm provided by AC (this is corroborated in the occupational therapy assessment of OT HS of 16 December 2019), photos of out-of-date spoiled food on multiple occasions, rat poison spread loose on shelves with food-stuffs and a Webster pack where medication had not been taken as prescribed. She details numerous occasions when ES has not been able to remember her appointments accurately, and states that all three of the GPs from whom the Tribunal received reports have asked AC to be the point of contact due to ES's level of confusion.
AC describes the impact on ES of her vulnerable memory in regard to issues such as what has happened to her car (AC took it to her house to organise repairs and cleaning prior to the car being sold at ES's request, ES forgot and became distressed, asking AC to bring the car to Bethanie for ES's use, even though ES lost her license in December 2019) and the impact of her desperation to remain at home on her judgment in regard to personal and financial safety (including offering to give her house to various people if they will move in and care for her). AC also provided photos of emails and documents allegedly made by an intimate male friend of ES which were written as though they were from ES but included mis-spellings of her name and authorisation for him to access her mail and her house. AC notes that this relationship is highly out of character for ES.
AC reported that on occasion ES was not able to tell her what bills were outstanding, or with whom the house and the car were insured. She noted that ES did not understand how Covid-19 was affecting the ability of family members to visit (and she was interpreting AC no longer hugging her as indicative of a lack of love). She was also concerned by how MS could act as the attorney for ES without a conflict of interest given he would be paying himself, and there was no clear written agreement regarding the terms of any such appointment.
Oral submissions first hearing
ES expressed throughout the hearings that she did not think she needed a guardian or an administrator. At the first hearing she said she thought AC wanted her money.
JP on behalf of the Public Advocate had discussed the application with service providers and friends of ES, and reported that her capacity appeared to fluctuate. ES had told her she found the MOCA difficult, and JP advised that the RUDAS can be a fairer assessment in people from a non-English speaking background. She reported that ES had been approved for a level 4 home care package, but that it was likely to be 18 months or so before that became available. She noted that ES had asked a friend to live with her and provide care, and that the friend had agreed, and she therefore supported an adjournment to allow further capacity testing by ES's choice of specialist to occur.
AC expressed her deep concern that ES would fall and be injured despite these arrangements.
Between the first and second hearings, ES had multiple falls, and the friend who had moved in with her sustained an injury to her back, which meant that she could no longer provide care. ES fell and fractured her wrist, and with the assistance of AC moved to respite care at Bethanie while her injury healed, and she underwent assessment by Dr ND as reported above, and by Bunbury Hospital Memory Clinic as documented in the ACAT assessment and the letters from Dr PR.
The concerns raised by ES in her discussion with Dr ND (regarding her car, and AC changing the locks on the house) were raised with AC at the second hearing. AC explained the circumstances with the car as detailed in her written submissions of 9 August 2020 (summarised above), and that she had changed the locks because multiple people had been accessing the house while ES was hospitalised, and she had concerns regarding the safety and security of the property. AC stated that she had explained this to ES on multiple occasions, but ES had forgotten the conversations, leading to distress and suspicion.
The legal representatives for ES indicated that she had revoked the EPA of 4 June 2020 appointing AC and made a new EPA appointing MS as her attorney on 24 July 2020, which he accepted on 27 July 2020.
Extensive time was spent at the second hearing detailing the findings of Dr ND's report, on which ES's legal representatives wished to rely, especially in regard to her capacity to execute an EPA. The Tribunal notes that Dr ND details a comprehensive discussion in which ES indicated understanding of the function and consequences of executing such a document at the time.
JP reported she had discussed matters with ES, ACAT member RA and previous live-in companion CH. She noted ES was very determined and fiercely independent, and that the capacity issue continued to appear borderline, with some decisions being reasonable but others showing a lack of insight for example the issue of driving and the impact of her diagnoses on her ability to do this safely. ES's refusal to entertain or acknowledge that these could cause any limitation or vulnerability caused concern. RA had noted the incongruence in ES's attitude to AC happy to accept extensive help from her in accessing medical appointments, shopping and social events, but also suspicious of her. JP reported that CH said she was very concerned regarding the level of care ES required with continence and falls risks.
ES initially said she could not tell the Tribunal what had happened with the events between the hearings, but then recounted that she had initially fallen when a heavy rubbish bin that she was pushing up her sloping driveway knocked her over, and subsequently when she got up in the dark to stop a ringing noise that she heard, got hooked in a machine she had on the ground and tripped and fell. She said that CH had been living with her as opposed to caring for her.
Insufficient time remained for AC to respond to the findings of Dr ND's report, and the matter was adjourned to a third hearing.
At the third hearing, the written submissions of AC of 9 August 2020 were acknowledged to have been reviewed by all parties and were not challenged. ES provided a position statement, in which she outlined her preference, should orders be made, that AC be her guardian with MS as her attorney. If that were not possible, she would prefer the Public Advocate as her guardian with MS as her attorney, and noted that her preference was to return to live at her home, if this could be achieved with modifications in accordance with any OT recommendations and if affordable live-in care could be arranged.
At the third hearing, as well as having the written submissions of AC, the Tribunal was informed that an EPG appointing AC had been executed by ES on 4 June 2020. ES had no recollection of this and her legal representatives were not aware of the document. The Tribunal did not have a copy of the document before it.
JP stated that she was very concerned that ES could not recall executing the documents in June and the details around the revocation of the EPA. She noted that Dr PR had found ES had no testamentary capacity in his letter of 23 June 2020, although noting Dr ND's view differed on 14 July 2020. She was also concerned regarding the vulnerability of the EPA as it could be revoked at any time by ES, and she had demonstrated by her actions of the previous months that she may change her mind.
GD on behalf of ES submitted that her view was that she had capacity to make her own financial decisions, and that she had appointed MS as her EPA and would prefer to leave that in place. If the Tribunal felt an administration order was required, then the only option would be AC, and that the external reporting requirements of a private administrator to the Public Trustee were understood.
In weighing the evidence in regard to capacity, I found reference to Billings J's discussion in XYZ (Guardianship) [2007] VCAT 1196 at [66][70] valuable:
66.…
… [T]he most appropriate way to assess how someone functions in the real world after an injury is to move in with them for a month and watch how they cope in their daily lives; but how many clinicians have the time, patience or interest to undertake such an assessment?' [quoting from: Crowe, The parallel universe: Does neuropsychological assessment tell us anything about the real world? InPsych highlights, June 2005 ( MMSE was not developed to assess capacity, although it has often been used to document "general cognitive" abilities as part of capacity assessment in clinical and other contexts ... The use of the MMSE for capacity assessments is the subject of ongoing debate'. Mental Capacity Powers of attorney and Advance Health Directives, at pp. 116 ff.
69.The general need for caution in capacity assessments is expressed by Darzins et. al. in this way:
'If capacity assessments place too much weight on cognitive function tests, like the [MMSE] or the cognitive capacity test, poor performance on these tests may be interpreted as evidence of incapacity. These tests are primarily language based and influenced by education, culture and language. If tests of cognition are used to determine capacity, some people who are capable, but who score poorly on these tests because of ignorance, lack of education or language difficulties, will be inappropriately labelled as incapable. Conversely, incapable people who have received more education and have well developed language skills, may erroneously be judged capable by these tests'. Who can decide? The six step capacity assessment process. Darzins et. al., cited above, at p. 8.
70.This supports the proposition that, if there is expert opinion that a person lacks capacity but there is also lay evidence that indicates the person has capacity, the Tribunal may decline to find that the person is incapable. On the other hand - depending on the circumstances - if there is expert opinion that a person has capacity but there is also lay evidence that indicates the person lacks capacity, the Tribunal may elect to obtain further and better medical or other expert evidence rather than reach an immediate conclusion. Any paradox here can be explained, I think, by considering the presumption that a person has capacity but, at the same time, the protective nature of the jurisdiction.
(Emphasis added)
All the doctors who provided reports in regard to ES agreed that she suffered from dementia, and that this affected her decision-making to some extent, the divergence was in terms of which aspects of capacity are currently affected to the level at which a substitute decision-maker should be appointed.
I note that both Dr PR and Dr ND are specialists in areas relating to the assessment of capacity in a person with dementia. Dr PR has known ES since 2017, and has seen her on five occasions, whereas Dr ND has seen her on one occasion, but for an extended consultation specifically focussed on assessment of capacity. Dr PR has had the benefit of collateral information provided by GPs and by AC, whereas Dr ND only had the written reports provided by the legal representatives of ES. The three GPs all refer to the assessments of Dr PR, but Dr RS had not seen ES since December 2019, whereas Dr GF and Dr HG had seen her in recent months and both found she was incapable in all areas (consistent with Dr PR's opinion).
MS's submission was not informed by the issues raised in regard to financial risk and exploitation in AC's written submissions, particularly in regard to such matters as ES giving her bank card to others, keeping large sums of cash unsecured in a home to which she was giving acquaintances unrestricted access, and influence by others which was in contrast to ES's previous character. AC's written submission, containing photographic and documentary evidence in support of its accuracy, provided extensive examples of the ways in which ES's personal health, safety and finances are currently at risk from her decisions, her lack of insight into her diagnoses and how they impact her ability to perform tasks and actions that she had previously mastered. ES repeatedly stated during the hearings that she had been able to drive all her adult life, and is able to make decisions for herself, and (similarly to the description in Dr ND's report regarding driving) appeared unable or unwilling to admit that a progressive neurological condition might cause a person to lose some abilities.
On the basis of the evidence of the specialist who has known ES for longer, and who therefore has been in a position to observe her decline, Dr PR, and of the two GPs who have seen her most recently and on multiple occasions, and noting that Dr ND acknowledged he was uncertain in regard to ES's capacity for complex financial decisionmaking, medical treatment decisions and accommodation decisions, and that he did not have access to all the relevant collateral information (which has been important to my decision), I am satisfied that the presumption of capacity is rebutted and that ES is no longer capable of looking after her own health and safety, managing her financial affairs and making reasonable judgments regarding her person or her estate.
Need for orders
I turn next to whether the EPA and EPG executed in recent months might serve as less restrictive alternatives to the making of guardianship and administration orders for ES. I am persuaded by the concerns of JP in regard to the changeability of ES's wishes in regard to appointees and the fact that she did not recall the details of which documents she had recently executed. If the EPA and EPG were to be utilised as less restrictive alternatives, they would be vulnerable to revocation by ES at any point, should the donees need to take any action to which ES objected.
The distress and suspicion experienced by ES due to the reasonable actions taken by AC in relation to ES's car (caused by ES's inability to recall she had agreed to these actions with AC and also that she can no longer legally drive) are but one example of the type of situation which might precipitate such a revocation.
I considered the preferred options put forward by ES, in terms of appointing AC or the Public Advocate as guardian with MS to remain as her attorney. Again, my concern is that should the guardian need to make decisions (foreseeably in relation to accommodation) with which ES did not agree, MS as attorney would be placed in an invidious position legally the guardian would have the right to make the accommodation decision, and would expect the attorney to arrange ES's finances to facilitate that, but ES would be likely to object to such actions if they were not in accord with her wishes, and would be able to revoke the EPA, leaving her financial decision-making in a legal vacuum.
For that reason, I am not persuaded that the EPA and EPG will serve as less restrictive alternatives that will meet the needs of ES in her particular circumstances.
In regard to whether limited or plenary appointments are required, I am concerned by the details in AC's written submissions regarding the actions taken by ES in regard to giving her bank card to others, keeping large sums of cash unsecured at home, and having pharmacy bills mount up. I note MS's experience that ES has been able to provide him with clear instructions regarding her estate. However I am persuaded that she is vulnerable to financial exploitation in day-to-day matters, and so a plenary administration order is required, with directions regarding the appropriate provision to ES of the balance of her regular income after recurring expenses are met, for her to manage independently.
Regarding guardianship, a limited order is appropriate, covering medical decision-making (noting that under s 110 ZD of the GA Act, AC already has this role in the hierarchy of 'persons responsible' who may make treatment decisions), accommodation decisions and the services to which ES should have access. Detailed concerns regarding her lack of insight into her diagnoses and their impact on her risk of falls, the need for qualified assistance and even the appropriate medication for them were before the Tribunal, and ES's lack of insight profoundly impacts reasonable decision-making in regard to accommodation and supports and how these can best be met. Given the concern regarding some of the persons to whom ES had been granting access to her house, email and banking, I did explore whether a contact function might be needed. However AC felt that the risk could be managed without that degree of restriction to ES's freedom of decision.
For those reasons, I am satisfied that there is a need to appoint a plenary administrator and a limited guardian for ES, and that in the circumstances there is no less restrictive alternative that would provide sufficient safeguards to her health, safety and financial affairs.
Who should be appointed
Section 44 of the GA Act relevantly provides:
44.Who may be appointed guardian
(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
(c)is otherwise suitable to act as the guardian of that person.
(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;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(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.
And in relation to administration, s 68 of the GA Act provides:
68.Who may be appointed administrator
(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.
(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; or
(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
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(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.
In ES's case, she has indicated that she supports the appointment of AC as her guardian, and AC is willing to serve in that role. The evidence before me indicates that AC is suitable for appointment and I am satisfied that it will be in ES's best interests to appoint her.
In regard to administration, it is clear that ES would wish MS to be her substitute decision-maker. However, an administrator is not remunerated for their duties, and so this will not be a workable arrangement. Explanation was provided to ES regarding the external reporting responsibilities of an administrator, and that he or she can seek professional advice in regard to the management of a represented person's estate (for example, AC could, if appointed administrator, retain MS as the accountant for ES's estate which would allow him to be remunerated for this work). ES was particularly concerned regarding whether her house could be sold without her being consulted.
I refer to s 70 of the GA Act which states:
70.Administrator to act in best interests of represented 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[.]
AC gave an undertaking that she would always discuss such a matter with ES, and disclosed that she had already been in discussions with MS regarding how ES's care needs could potentially be met without requiring the sale of her home.
AC indicated that she would be willing to serve as the administrator for ES, and I am satisfied that she is suitable for appointment.
When should orders be reviewed?
Section 84 of the GA Act provides that the Tribunal, when making a guardianship or administration order, must specify a period, not exceeding five years from the date of the order, within which the order or orders shall be reviewed.
It is relevant to my decision on this issue, that on the evidence available to me, ES's capacity is impaired by a condition that is considered to be permanent and progressive. However, due to her opposition to the finding of incapacity, and concerns regarding the decisions that may be made for her, I find that review in two years rather than the maximum available term of five years is appropriate.
Declaration and orders
For the reasons above, on 11 August 2020, I made the following declarations and orders:
The Tribunal declares that the represented person, ES is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)in need of oversight, care or control in the interests of her own health and safety; and
(e)in need of a guardian.
The Tribunal orders:
Administration
1.AC is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $4,000 per annum on gifts on behalf of the represented person.
3.The enduring power of attorney dated 24 July 2020 by which the represented person appointed MS to be her attorney, is revoked.
4.The administrator is directed to arrange for the balance of the represented person's regular pension and investment income after her regular expenses are met to be available for her to manage.
5.If the administrator forms the view that the represented person is not managing the income referred to in the order above in her own best interests, the administrator is to inform the Tribunal of the need for urgent review of the orders.
6.The administrator is to provide the represented person with a copy of the annual accounts provided to the Public Trustee.
Guardianship
7.AC is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live; and
(c)to determine the services to which the represented person should have access.
8.The administration and guardianship order is to be reviewed by 10 August 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
21 AUGUST 2020
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