ES
[2014] WASAT 91
•21 JULY 2014
ES [2014] WASAT 91
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 91 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:741/2014 | 17 APRIL 2014 | |
| Coram: | MS F CHILD (MEMBER) | 21/07/14 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Applicant appointed plenary administrator Public Advocate appointed limited guardian | ||
| B | |||
| PDF Version |
| Parties: | ES |
Catchwords: | Guardianship and Administration Represented person with diagnosis of dementia Conflict between his children about where he should live Whether the applicant son suitable for appointment as guardian and administrator because of opposition of the represented person to the orders and hostility to the son Son not suitable for appointment as guardian as in the best interests of the represented person to preserve their relationship Suitable for appointment as administrator as able to perform the functions Appointment of the son as administrator Appointment of the Public Advocate as limited guardian |
Legislation: | Guardianship and Administration Act 1990 (WA), s 43, s 44(5), s 64(1)(a), s 64(1)(b), s 65 |
Case References: | Nil |
Summary | Following applications for the appointment of a guardian and administrator for ES, an elderly man with a diagnosis of dementia, the Tribunal appointed his son as the administrator of his estate and the Public Advocate as his guardian.,Although disputed by both ES and his daughter, the Tribunal accepted the consistent medical and allied health professional evidence that ES had a diagnosis of dementia and that he could no longer manage his affairs. The recommendation by the health professionals was that ES required secure residential care. ES denied this was the case and maintained he could manage his own affairs. The applicant son provided evidence to the Tribunal that ES's financial affairs had been in disarray, probably for a lengthy period prior to the applicant's intervention and submitted that his father was vulnerable to financial exploitation.,Although the son also sought his appointment as his father's guardian to make personal decisions for him, the Tribunal decided that it was not in ES's best interests that his son be appointed because of the importance of the continuing relationship between them. ES had no insight into his situation and was openly hostile to his son for making the applications. The appointed guardian needed to make decisions such as entry into residential care for ES that both ES and his daughter opposed. Such decisions, if made by the son, would likely increase the conflict in the family and this was not in the best interests of ES in the longer term as his relationship with his son had been acknowledged to be the enduring one in his life up to the time of the applications being made to the Tribunal. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : ES [2014] WASAT 91 MEMBER : MS F CHILD (MEMBER) HEARD : 17 APRIL 2014 DELIVERED : 21 JULY 2014 FILE NO/S : GAA 741 of 2014
- GAA 742 of 2014
- Represented Person
Catchwords:
Guardianship and Administration Represented person with diagnosis of dementia Conflict between his children about where he should live Whether the applicant son suitable for appointment as guardian and administrator because of opposition of the represented person to the orders and hostility to the son Son not suitable for appointment as guardian as in the best interests of the represented person to preserve their relationship Suitable for appointment as administrator as able to perform the functions Appointment of the son as administrator Appointment of the Public Advocate as limited guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 43, s 44(5), s 64(1)(a), s 64(1)(b), s 65
Result:
Applicant appointed plenary administrator
Public Advocate appointed limited guardian
Summary of Tribunal's decision:
Following applications for the appointment of a guardian and administrator for ES, an elderly man with a diagnosis of dementia, the Tribunal appointed his son as the administrator of his estate and the Public Advocate as his guardian.
Although disputed by both ES and his daughter, the Tribunal accepted the consistent medical and allied health professional evidence that ES had a diagnosis of dementia and that he could no longer manage his affairs. The recommendation by the health professionals was that ES required secure residential care. ES denied this was the case and maintained he could manage his own affairs. The applicant son provided evidence to the Tribunal that ES's financial affairs had been in disarray, probably for a lengthy period prior to the applicant's intervention and submitted that his father was vulnerable to financial exploitation.
Although the son also sought his appointment as his father's guardian to make personal decisions for him, the Tribunal decided that it was not in ES's best interests that his son be appointed because of the importance of the continuing relationship between them. ES had no insight into his situation and was openly hostile to his son for making the applications. The appointed guardian needed to make decisions such as entry into residential care for ES that both ES and his daughter opposed. Such decisions, if made by the son, would likely increase the conflict in the family and this was not in the best interests of ES in the longer term as his relationship with his son had been acknowledged to be the enduring one in his life up to the time of the applications being made to the Tribunal.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Applications
1 LS, (the applicant) who is the son of ES (represented person) an elderly man with a diagnosis of dementia, sought appointment as guardian and administrator of the estate of his father by applications filed with the Tribunal in February 2014. At the time of the applications, the represented person was an inpatient at a major teaching hospital. By the time of the hearing in April 2014, ES had been transferred to a transitional care placement.
2 The applicant said orders were needed because the represented person had not been discharged from hospital although he had attempted to leave to return to living alone on his rural property. He was refusing to accept he had lost his motor driver's licence. It was also said that the represented person could not manage his finances and was at risk of financial abuse because he had been sending money to a woman who lived overseas.
3 Pre-hearing orders were made on the 27 February 2014, which listed the matter for hearing and referred the applications for investigation by the Public Advocate. Included in those orders was a standard order inviting the parties to seek to inspect documents filed in respect of the applications. Up until the time of the hearing no applications were made for inspection.
4 On 12 March 2014, the Tribunal made an order pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) (GA Act) on the application of the applicant son. The order appointed the son with the powers of a plenary administrator pending the final determination of the original applications. This order was made because the Tribunal determined that the represented person may be a person for whom an administration order could be made and there was a need to make immediate provision for the protection of his estate. The applicant said that his father and half-sister were challenging the informal protective measures he had taken to secure his father's estate, when he had been admitted to hospital, including holding his father's wallet, as unlawful. He reported that GD, the daughter of the represented person, and his half-sister, had made a complaint that the represented person's wallet had been stolen and this had caused conflict between the applicant and GD.
5 The applications were listed for final hearing on 17 April 2014 and the Tribunal heard from the following persons in the hearing:
• ES, the represented person;
• LS, the applicant son;
• GD, the represented person's daughter and the applicant's half-sister;
• AT, daughter and the applicant's half-sister;
• JS, the former spouse of ES and the mother of the applicant;
• MD, son-in-law and spouse of GD;
• SD, granddaughter and daughter of GD and MD;
• the representative of the Public Advocate (Public Advocate); and
• Dr MS, a psycho-geriatrician by telephone to the hearing room.
6 The hearing was adjourned on the day of the hearing to arrange the appearance of Dr MS by telephone, at short notice, to enable the Tribunal to take evidence from him. This had not been arranged prior to the hearing as the Tribunal had not been advised that Dr MS had assessed the represented person until part way through the hearing when GD referred to this assessment in her submissions.
7 The applications were determined and orders made on the hearing day with reasons for the decision to be published later. These written reasons set out the reasons of the Tribunal for the determinations made.
Legislation
8 In all proceedings before the Tribunal under GA Act, the Tribunal must observe the following principles: that the primary concern must be the best interests of the person concerned; and every person is presumed to be capable of looking after their own health and safety, of making reasonable judgments with matters relating to their person and making reasonable judgements in respect to matters relating to their estate.
9 Before orders can be made there must be a need for them. An administration and guardianship order may not be made where a less restrictive alternative to making those appointments is available. In any orders made, the least restrictive option should be chosen. The Tribunal must seek to ascertain, as far as possible, the views and wishes of the proposed represented person.
10 Before appointing an administrator, the Tribunal must be satisfied that the person for whom the order is sought 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 (s 64(1)(a) of the GA Act).
11 To appoint a guardian, the Tribunal must be satisfied that the person is unable to look after his own health and safety, unable to make reasonable decisions about his person, or is in need of oversight care or control in the interests of his own health and safety or for the protection of others. The Tribunal must be satisfied that there is a need for both orders, (s 64(1)(b) and s 43 of the GA Act), before appointing a guardian and administrator.
12 The legislation also provides that the Public Advocate cannot be appointed guardian unless the Tribunal finds that there is no one else suitable or willing to be appointed (s 44(5) of the GA Act).
Evidence and material before the Tribunal
13 In addition to the oral evidence and submissions, the Tribunal received written material from the applicant relating to the financial affairs of the represented person, including overdue accounts and information that the represented person's insurance on his house and his car, had lapsed some considerable time before his hospital admission. The applicant said the represented person had been sending money to a woman overseas but could not recall her name when asked. He said that the represented person was entitled to a pension but was not receiving it. The applicant also said that the represented person had a firearms licence and that he had found an unsecured rifle and live ammunition in the bedroom of the represented person's house. The applicant reported that he had surrendered the rifle to the police. He said that the represented person makes threats to his neighbours, and although it is unlikely he will carry out the threat, his firearms licence should be surrendered because of his illness.
14 The Tribunal also received material from the teaching hospital where the represented person had been a patient: a report from Dr AT, medical officer, dated 19 February 2014, which says that the represented person has 'likely frontal temporal dementia with reduced cognitive ability and reasoning'. The condition is described as a progressive one with 'likely gradual decline'. The doctor's opinion is that the represented person is incapable of decision-making in the spheres of personal healthcare, in relation to his living situation and in his financial affairs. The report goes on to say that the represented person denies confusion and dementia and the need to be in hospital. It states that the represented person denies the loss of his motor driver's licence and had been found driving by the police.
15 A report from Dr TK, from the same hospital, includes a summary of notes by a number of doctors who had assessed the represented person over the period of his admission. The notes of Dr A describe 'progressive dementia symptoms with the predominant feature anomia. Disinhibited. Paranoid themed conversations. Not classical or pure Alzheimer's dementia. Significant front temporal signs'.
16 Dr C notes, 'based on allied health assessments and a Montreal Cognitive Assessment (MOCA) score of 7/30 with 'poor insight and judgment' [the represented person] is not likely to be able to make competent decisions'.
17 Dr PO, a psycho geriatrician, is recorded as noting:
Warrants referral to SAT, he has demonstrated significant risks, driving erratically without a licence, becoming lost within the community, financially vulnerable, at risk of being taken advantage of, poor short term memory, unable to state where he lives, or give date, likely to have neurodegenerative disorder complicated by past subdural haematoma … he has little insight into his deficits, insistent that he can manage alone without help.
18 In the Aged Care Assessment Record dated 21 February 2014, the primary diagnosis of the represented person is noted as:
Dementia, probable front temporal dementia. Short-term memory problems are reported to occur 'always'. Long-term memory problems regularly. Forgets he has lost his licence and reports he will keep driving. Frequently cannot recall the name of his girlfriend, children, bank. Verbally aggressive, threatening gestures and verbal threats due to frustration at being kept in hospital - currently verbal de-escalation has been successful.
19 The speech pathologist's report dated 21 February 2014 reports:
Moderate to severe aphasia' and 'reduced insight', 'expressive deficits; unable to state age, state, date of birth, address, descriptions, naming'. The represented person is described as 'very impaired with verbal output' and demonstrated 'impaired writing.
20 The occupational therapist's report dated 14 February 2014, includes the MOCA score of 7/30 'indicating very poor cognition across the areas of visuospatial, executive functioning, attention, recall and orientation'.
21 The social worker's report states that the represented person had been admitted to hospital on 15 February 2014, having been found by the police driving around lost. She reports that the represented person had been aggressive and threatening in hospital; that guards had been used on the ward and consideration had been given to the use of chemical restraint. The represented person was reported to be socially and geographically isolated, living alone on a 60 acre rural property. She reports that home support services cannot be provided to this location.
22 A hospital discharge summary prepared by Dr AT was also provided and reported the medications prescribed to the represented person while he was a patient. After summarising admission and some investigations, the report also notes:
Unequivocal impaired cognitive ability' ? Alzheimer's ? Fronto-Temporal Dementia related. Reviewed by Psychiatry Geriatric Unit-impaired function in agreement that he needs care. Patient held against discharge against medical advice (DAMA) on duty of care. Patient does not agree, required multiple discussions to talk down but did not require medical or aggressive intervention at any time. Situation discussed with family. Son in agreement about decline and poor cognition. Daughter disagrees and denies he has issues.
…
Multiple meetings with family members regarding [the represented person's] ability to cope. Difference in opinion between family members. Daughter denies any decreased function and feels he would be safe on his own or with limited care. Multiple meetings with daughter and son in law who felt we were detaining him illegally. Son is listed as next of kin and has applied for guardianship.
23 Dr MS, a psycho-geriatrician at a private hospital, to whom his daughter GD and son-in-law MD had taken the represented person to obtain a second opinion following his discharge from hospital, gave oral evidence in the hearing.
24 Dr MS, in his evidence, agreed with the diagnosis made by the team at the teaching hospital, that the represented person had dementia. To questions raised by GD, Dr MS said there 'could be an argument about the severity of the illness' but he reported that, on the day he had assessed the represented person he was disorientated and not able to give his home address. Dr MS said that the represented person might score better than 7/30 on the MOCA (since his discharge) but that this would not change the diagnosis that there was a dementing illness, and would not impact on his opinion that the represented person had problems with his memory and with new learning and recalling of recent events. He said that the PET scan that had been discussed with GD and MD was not essential and results would not change his diagnosis. He agreed that there may be other causes for the represented person's poor presentation, including the subdural haematoma noted by Dr PO, the psycho-geriatrician at the teaching hospital, which may have an impact, but whatever the cause, the diagnosis would not change.
25 GD and MD questioned Dr MS on the findings of the hospital assessments and they asserted that the represented person had been sedated while in hospital. Dr MS responded that on the day he had assessed the represented person, he had not been medicated. In spite of this, the represented person could not tell him his home address, his daughter's name or remember his son's name. When the represented person discussed his wish to return home, Dr MS reported that the represented person could not tell him what was needed to live at home. Dr MS gave the opinion that the represented person did not have capacity to make decisions about where he should live and that he probably could not manage his financial affairs because of his impaired memory. Dr MS said that when he assessed him, the represented person could not give an account of his estate, could not say where his bank account was, but did tell him of an overseas friend that he had been supporting financially for two or three years.
Is the represented person a person to whom orders can be made?
26 GD and MD challenge the findings of the doctors and allied health professionals at the teaching hospital, as they say that the represented person was held against his will, very frustrated by this and was likely sedated during the periods of assessment. They said they did not witness any assessments taking place. They say he has a speech disability, which may be misinterpreted by persons assessing his capacity. They challenge the assessment conducted by Dr MS at their request, because they say that Dr MS assessed the represented person 'in a rapid fire way', and that his assessment was 'like an interrogation'. It is noted that this was not put to Dr MS when he was giving his evidence, but was made in submissions later.
27 GD and MD maintain the position that the represented person is able to make decisions for himself. They say he has very strong views about arrangements for his care. They strongly criticise his treatment at the hospital, including the use of a 24 hour guard to prevent him leaving the hospital. MD says that he had been told by a pharmacist at the hospital, that the represented person had been discharged with sedating medications.
28 A medication called Mirtazapine is noted on the discharge summary, but no evidence has been produced regarding the purpose for the prescription of this medication for the represented person.
29 Although the represented person spoke fluently and at some length during the hearing, without any apparent difficulties in speech production, his comments were tangential and at times unresponsive to questions. The represented person denied any assessments had been conducted at the hospital.
30 The Public Advocate submitted that the represented person is a person for whom orders could be made. This is based on the medical and allied health evidence, and on an interview conducted with the represented person at the transitional care placement, in which he was able to express his wishes, but was disoriented to time, place and person.
31 Although there is a difference in opinion between the applicant, the health professionals and the Public Advocate on the one hand, and the represented person and GD and MD on the other, as to the capacity of the represented person to make reasonable judgments about his person and his estate and his need for oversight and care, the Tribunal prefers the evidence of the health professionals, including that of Dr MS.
32 The Tribunal accepts that the material produced by the hospital, followed assessments conducted by a number of professionals over several days, during the period of the weeks of the represented person's admission to hospital. Although GD and MD assert that the represented person was medicated during this period, the discharge summary does not support this. It is possible that the represented person may have been sedated at some time during his lengthy hospital admission and this was not recorded on discharge summary. However, this does not change the decision of the Tribunal to accept the findings of the assessments produced. Dr MS said in his evidence, that the represented person was not sedated when he was assessed by him, that he found that there was dementia, and that his opinion and conclusions were consistent with that of the doctors and other health professionals at the hospital. No other professional opinion was put before the Tribunal. The opinions of the health professionals, as to the functioning of the represented person, are consistent with his presentation in the hearing.
33 The Tribunal is satisfied on all of the evidence, despite the objections of the GD and MD to the findings of the assessments and the lack of recall of the assessments by the represented person, that the represented person is unable, by reason of his mental disability, (being the diagnosed dementia), of making reasonable judgments in matters relating to his estate. The Tribunal accepts the assessments conducted at the teaching hospital and the evidence of Dr MS, that the represented person is not now capable of making decisions as to where he should live, which is the key issue in conflict before the Tribunal.
34 The Tribunal finds that because he has no insight into his significant cognitive impairments, the represented person is not able to look after his own health and safety. The weight of the evidence supports the finding that he is not able to make reasonable judgments about his person, including being able to identify his care needs, if discharged home.
35 GD asserts her father was being detained against his will in hospital and does not accept the concerns for his safety, as expressed by the health professionals, were justified. She says the detention caused the represented person to become frustrated but she challenges the evidence that the represented person was aggressive, as she says that she did not observe any aggressive behaviour in the hospital.
36 Given the reports by the hospital staff of disinhibition, aggression and threatening behaviour and the use of a guard, the Tribunal concludes it is more likely than not, that the represented person displayed aggressive behaviours while in hospital. Based on this, the Tribunal is satisfied the represented person is a person in need of oversight care or control in the interests of his own health and safety and for the protection of others.
Is the represented person in need of a guardian and an administrator of his estate?
37 The question of where the represented person should live on his discharge from the transitional care placement, is the key issue in dispute. The represented person clearly expresses the wish to return to his home. GD maintains the represented person is able to make decisions about where he should live and that he should return home with a homecare package and be given the opportunity to remain living at home for another winter.
38 The applicant son accepts the view of the health professionals, that the represented person now requires residential aged care and that the represented person's care needs cannot be met at his home.
39 The discharge summary records that the represented person intended to leave hospital against medical advice, but was held in hospital under the hospital's 'duty of care'. The represented person is described as being in robust physical health, but has a lack of insight into his condition and his care needs. He would be at risk at his home and reportedly, services cannot be arranged for him there, because of his challenging behaviours and the remote location of his property.
40 Because of the opposition of the represented person and the difference of opinion in the family about his needs, this critical decision as to where he should live after the transitional care period, cannot be made less restrictively, and an order appointing a guardian to determine where he should live is needed.
41 It is reported that the represented person refused services after a fall and injury in 2005, when he was then offered home help. It is unclear whether the need for services is a real question for a guardian because, as noted, the hospital social worker reports that services cannot be provided to his home and the represented person has not been approved by the Aged Care Assessment Team (ACAT) for a home care package, but only for transitional care and low care residential care. However, even if he is admitted to residential care, there may be a need for additional services to be engaged by a guardian on his behalf.
42 It is submitted by the Public Advocate, that there may be a need for a guardian to have the function to determine if restraint is to be used for the represented person. This is against a background of the use of a guard placed on the represented person to prevent him leaving hospital, the reference to chemical restraint in the hospital notes, and the allegation made by GD and MD that he had been given sedating medications to manage his behaviour.
43 If sedating medications are being used or are proposed to manage the behaviour of the represented person, he does require a guardian to make this decision on his behalf and to provide advocacy, to ensure the least restricted options are chosen.
44 Given his diagnosis, the represented person's firearm licence should be surrendered, as proposed by the applicant.
45 The Tribunal is satisfied that the represented person needs a guardian, with authority to decide where and with whom he is to live, to make treatment decisions on his behalf, to determine services to which he should have access to determine if restraint is to be used, and to surrender his firearm licence.
46 The GA Act provides that a plenary guardianship order should not be made, unless the Tribunal is satisfied that a limited order, would not meet the needs of the represented person. The Tribunal is satisfied that a limited order with the functions as outlined, would meet the needs of the represented person.
47 In respect of the application for an administration order, the Tribunal is satisfied that an administration order is needed and plenary authority is required. The applicant in his submissions, sets out a number of issues which need to be addressed for the represented person, including the payment of the day-to-day accounts, dealing with the represented person's property, managing his term deposit, and making an application for the pension and for residential aged care (once this question is determined by the guardian).
48 The applicant describes (and the former spouse of the represented person supports) a gradual deterioration in functioning over a period of perhaps two years. The inability of the represented person to manage his affairs is demonstrated in the disarray in which the applicant found his affairs on the represented person's admission to hospital. The applicant describes the represented person as financially vulnerable and as having been taken advantage of by an overseas friend, to whom the applicant said, the represented person had sent some $50,000 in the previous four years. It was alleged that the represented person had been the respondent in proceedings in the Magistrates Court in Northam, by this or another woman, for a restraining order and that she had alleged he had assaulted her. GD rejects the view of the applicant that the overseas friend of the represented person is a 'scam' and states the relationship with the represented person had existed for over five years. GD says she has not met the friend but has spoken to her on the telephone.
Appointments
49 The applicant proposes himself for appointment as both guardian and administrator and provides detailed submissions regarding his background and his long-term, if at times strained relationship, with the represented person. He reports the arrangements he made for the protection of the represented person's property while he was in hospital, including paying bills, reinsuring his house and car, attending to his animals, and securing the bank account and the wallet of the represented person. He is reported to have been the main contact with the treating team and to be the 'next of kin'. He reports he has viewed aged care facilities in an effort to find suitable care for the represented person.
50 The daughter GD proposes herself for appointment as both guardian and administrator, or for joint appointment with the applicant as guardian, and the Public Trustee as administrator.
51 The represented person strongly expressed his wishes in the hearing that he returns home to live and when interviewed by the Public Advocate's representative prior to the hearing expressed the wish that his daughter GD be appointed his guardian. He opposes his son's involvement in his affairs.
52 The Tribunal does not find GD suitable for appointment as she does not accept the evidence of the represented person's incapacity and therefore would be unable to act protectively as required. GD concedes that the represented person has dementia, and memory problems, but she does not accept the impact of his reported impairments on his decision-making. In the face of all the medical opinion, including the specialist opinion she sought herself, she maintains that the represented person's decision-making is not impaired.
53 Additionally, although GD states that if appointed guardian, she could negotiate with health professionals on behalf of the represented person, it appears from her own evidence, and that of her spouse, that they did not accept the advice and information provided by the health professionals and communication with the hospital staff broke down. The son-in-law refers to a 'fiery exchange' with the registrar. It is acknowledged that the position would have been difficult for them, given the represented person's insistence that he should be discharged to his home.
54 GD has not supported efforts of the applicant to put in place informal protective measures, such as securing the wallet of the represented person, which is reported to have contained substantial cash.
55 The lack of appreciation of the impaired decision-making of the represented person by GD has increased his vulnerability.
56 The joint appointment of herself, together with the applicant, as proposed by GD, is not appropriate or possible because joint appointees must act unanimously and GD and the applicant do not agree about their father's care needs and their reported previously amicable relationship has been damaged in the course of the proceeding before the Tribunal.
57 The Public Advocate reports that when interviewed, the represented person was hostile to his son and did not want him involved in his affairs. The hostility appears to have arisen because of the role the applicant played in bringing the applications to the Tribunal. Although his mother and his half-sister, AT support his appointment as guardian, the Tribunal found that the applicant was not suitable for appointment as guardian, in the current circumstances of the represented person.
58 The Tribunal accepts that the applicant has demonstrated a commitment over time to the best interests of the represented person. However, if appointed the guardian, the decisions which need to be made (against the wishes of the represented person), will likely lead to further breakdown in what the applicant says and other family members acknowledge, is the most enduring relationship the represented person has. It may also, as the Public Advocate's representative submits, increase the anxiety of the represented person if he is aware his son is making decisions about residential care for him.
59 There is no doubt that the represented person would oppose the appointment of the Public Advocate as his guardian.
60 There being no one suitable for appointment, the Public Advocate must be appointed as the represented person's guardian.
61 GD proposes that the Public Trustee be appointed as administrator rather than the applicant 'because of the animosity'. This proposal is not supported by her sister, or by the former spouse of the represented person, or the Public Advocate's representative, all of whom support the appointment of the applicant.
62 The represented person does not consider he needs assistance to manage his finances and is reported not to want his son involved in his affairs. The Tribunal is bound to try to ascertain the wishes of the represented person but is not bound to follow those wishes, if to do so, would not be in the represented person's best interests.
63 In the present circumstances, the Tribunal considers it in the best interests of the represented person to appoint the applicant as the administrator of the represented person's estate. The applicant proposes to act to prevent, what he believes to be financial exploitation of the represented person, to pay his bills, deal with his property and to ensure the represented person receives his correct pension entitlements. It is always open to the Tribunal to appoint the Public Trustee as administrator of an estate and no doubt, the Public Trustee as administrator would undertake similar actions as proposed by the applicant. The benefit of the appointment of the applicant is that he is familiar with the estate and with the represented person, his past preferences and lifestyle and will be able to provide individual attention to the represented person's needs.
64 It is not necessary to put the represented person to the cost of the Public Trustee's fees since the applicant will be able to perform the functions and is suitable for appointment. The annual filing of accounts with the Public Trustee provides the mechanism for accountability of any appointed administrator.
65 The role of the administrator to manage the estate may result in decisions being made that the represented person will oppose (for example, the payment of an ingoing fee for residential aged care). However, the decision as to whether this will be necessary, will be made by the Public Advocate as the represented person's guardian. Because of this, the applicant may not be seen to be in direct conflict with the represented person.
Term of the orders
66 The represented person's diagnosed condition is described in the medical reports as likely to be a progressive and as such, he will need substitute decision-makers in the longer term. The administration order is set for review in five years, which is the maximum period under the GA Act.
67 The guardianship order should be reviewed in 12 months. Once the decision about residential care is made, the applicant might then again propose himself for appointment to make personal decisions for the represented person.
Orders
The Tribunal declares that ES:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b) is in need of an administrator of his estate,
and the Tribunal orders that:
1. LS is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. It is declared that the represented person is not capable of making judgments for the purpose of complying with the provisions of the Electoral Act 1907 relating to compulsory voting.
3. This order is to be reviewed by 16 April 2019.
The Tribunal declares that ES:
(a) is incapable of looking after his own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to his person;
(c) is in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
(d) is in need of a guardian;
and the Tribunal orders that:
1. The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a) To decide where the represented person is to live, whether permanently or temporarily;
(b) To decide with whom the represented person is to live;
(c) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;
(d) To determine the services to which the represented person should have access;
(e) To consent to the use of chemical or physical restraint in respect of the represented person and to decide matters incidental thereto; and
(f) To take whatever steps necessary to surrender any firearms currently held by the represented person.
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3. It is declared that the represented person is not capable of making judgements for the purpose of complying with the provisions of the Electoral Act 1907 relating to compulsory voting.
4. This order is to be reviewed by 16 April 2015.
I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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