FH
[2016] WASAT 95
•8 AUGUST 2016
FH [2016] WASAT 95
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 95 | |
| 08/08/2016 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:861/2016 | 19 APRIL AND 8 JULY 2016 | |
| Coram: | MS F CHILD (MEMBER) | 27/07/16 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate appointed limited guardian Public Trustee appointed plenary administrator Enduring power of attorney revoked Enduring power of guardianship revoked | ||
| B | |||
| PDF Version |
| Parties: | FH |
Catchwords: | Guardianship and administration Applications for appointment of a guardian and an administrator and intervention in an enduring power of guardianship Represented person with memory impairment but no diagnosed condition Whether a person for whom orders may be made Finding memory impairment to be a mental disability Need for orders Conflict of interest between attorney and enduring guardian appointed under an enduring power of attorney and under enduring power of guardianship and the represented person Not in best interests of represented person that these powers continue to be exercised Public Advocate appointed guardian Public Trustee appointed administrator Enduring power of attorney and enduring power of guardianship revoked |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1)(b), s 44(5), s 51, s 51(2)(d), s 51(2)(g), s 64, s 107, s 108, s 110H, s 110J, s 110(N)(1) State Administrative Tribunal Act 2004 (WA), s 47 |
Case References: | BFO &ORS and KPW 2014 WASAT 68 EW [2010] WASAT 91 FS [2007] WASAT 202 LGM [2016] WASAT 45 MH [2016] WASAT 80 Public Trustee and KMH [2008] WASAT 171 Re SB [2013] EWCOP 1417 XYZ v State Trustees Ltd [2006] VSC444, |
Summary | The Tribunal appointed the Public Trustee and Public Advocate as plenary administrator and limited guardian respectively for FH, an elderly man with significant memory problems but no formal diagnosis. The Tribunal found that the presumption that FH was capable of managing his affairs and making reasonable judgments about his estate and his person was displaced by the evidence which included his presentation at hearings before the Tribunal. ,The Tribunal found that FH was in need of an administrator of his estate and a guardian as the enduring power of attorney and enduring power of guardianship he had executed in favour of his daughter S, were not operating in his best interests. His daughter, who was the donee of the powers, had made decisions which were not in his best interests and had interests which conflicted or potentially conflicted with FH's interests. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : FH [2016] WASAT 95 MEMBER : MS F CHILD (MEMBER) HEARD : 19 APRIL AND 8 JULY 2016 DELIVERED : 27 JULY 2016 PUBLISHED : 8 AUGUST 2016 FILE NO/S : GAA 861 of 2016
- GAA 1608 of 2016
GAA 1614 of 2016
- Represented Person
Catchwords:
Guardianship and administration - Applications for appointment of a guardian and an administrator and intervention in an enduring power of guardianship - Represented person with memory impairment but no diagnosed condition - Whether a person for whom orders may be made - Finding memory impairment to be a mental disability - Need for orders - Conflict of interest between attorney and enduring guardian appointed under an enduring power of attorney and under enduring power of guardianship and the represented person - Not in best interests of represented person that these powers continue to be exercised - Public Advocate appointed guardian - Public Trustee appointed administrator - Enduring power of attorney and enduring power of guardianship revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1)(b), s 44(5), s 51, s 51(2)(d), s 51(2)(g), s 64, s 107, s 108, s 110H, s 110J, s 110(N)(1)
State Administrative Tribunal Act 2004 (WA), s 47
Result:
Public Advocate appointed limited guardian
Public Trustee appointed plenary administrator
Enduring power of attorney revoked
Enduring power of guardianship revoked
Summary of Tribunal's decision:
The Tribunal appointed the Public Trustee and Public Advocate as plenary administrator and limited guardian respectively for FH, an elderly man with significant memory problems but no formal diagnosis. The Tribunal found that the presumption that FH was capable of managing his affairs and making reasonable judgments about his estate and his person was displaced by the evidence which included his presentation at hearings before the Tribunal.
The Tribunal found that FH was in need of an administrator of his estate and a guardian as the enduring power of attorney and enduring power of guardianship he had executed in favour of his daughter S, were not operating in his best interests. His daughter, who was the donee of the powers, had made decisions which were not in his best interests and had interests which conflicted or potentially conflicted with FH's interests.
Category: B
Representation:
Counsel:
Applicants : Mr B Meredith
Represented Person : Mr A Wilson
Interested Party : Ms V Buckley
Solicitors:
Applicants : BNT Legal
Represented Person : Frichot & Frichot
Interested Party : Kavanagh Lawyers WA Pty Ltd
BFO &ORS and KPW 2014 WASAT 68
EW [2010] WASAT 91
FS [2007] WASAT 202
LGM [2016] WASAT 45
MH [2016] WASAT 80
Public Trustee and KMH [2008] WASAT 171
Re SB [2013] EWCOP 1417
XYZ v State Trustees Ltd [2006] VSC444,
Introduction
1 These are the reasons for the decisions of the Tribunal in respect of applications filed for FH, the represented person.
Applications
2 Applications were brought under the Guardianship and Administration Act 1990 (GA Act) by two of FH's daughters, M and F (applicant daughters or M and F). On 22 February 2016, they filed applications seeking the appointment of an administrator of FH's estate and on 7 and 8 April 2016 for the appointment of a guardian and for revocation of an enduring power of guardianship (EPG) executed by FH in 2014 by which he had appointed a third daughter, S, as his enduring guardian.
3 The applicant daughters also seek the revocation of an enduring power of attorney (EPA) executed by FH in 2014 which appoints S as FH's attorney.
4 The applicant daughters propose that the Public Advocate and the Public Trustee be appointed as guardian and administrator.
5 In response to the applications made for FH, FH and S, and F's son, K, oppose the orders being made. In her submission of 18 April 2016, S submits that if the Tribunal determines that an administrator needs to be appointed for the estate of FH, she requests that she be the appointed administrator.
The proceedings before the Tribunal
6 The applications for FH were made at the same time as applications by M and F for the appointment of a guardian and an administrator for their mother and the spouse of FH, MH. The hearings of the applications for MH were on 6 April and 13 May 2016. The decision appointing the Public Trustee as the administrator of MH's estate was delivered on 25 May 2016 (reported as MH [2016] WASAT 80 (MH)). The Public Advocate was appointed as limited guardian for MH on 6 April 2016. The review of the guardianship order was concluded on 12 July 2016 with the appointment of MH and FH's daughter, M, as her limited guardian.
7 The applications for FH were first heard on 19 April 2016 and adjourned for a specialist capacity assessment which FH agreed to attend. At a directions hearing held on 13 May 2016 (conducted immediately after the substantive hearing held in respect of MH), the Public Advocate's investigator reported that although FH's general practitioner had agreed to make the referral to a psychogeriatrician, FH would not now participate in the assessment following legal advice.
8 The applications for MH and FH were heard by the same member, and documents filed on the file of MH were referred to in submissions filed for FH.
9 On 25 May 2016, an application was filed by the solicitor acting for FH for summary dismissal of the applications pursuant to s 47 of the State Administrative Tribunal Act2004 (WA).
10 This application was referred to the President to consider whether this application should be determined by the Deputy President. The President determined that the original Presiding Member should determine this application together with the substantive applications as a single member. The matter was listed for final hearing on 8 July 2016.
11 A further application was filed on 8 July 2016, just prior to the final hearing by the solicitor for FH, that the Presiding Member disqualify herself from hearing the applications on the basis of reasonable apprehension of bias. In essence, the submission is that having determined that FH was unsuitable for appointment as administrator for MH on the basis of his own demonstrated memory problems and his failure to assert and protect the interests of MH, the Tribunal had prejudged the questions before the Tribunal in the matter of FH. This submission is a misunderstanding of the quite different tests to be applied in determining the applications for FH, as opposed to the question of suitability of FH for appointment to manage MH's affairs. In respect of the submissions advanced by the solicitor for FH and adopted by counsel for S regarding the Tribunal's finding that S was less than frank in her evidence before the Tribunal about MH's diagnosis, this finding was open on the unchallenged evidence of MH's treating geriatrician given at the hearing on 13 May 2016. The potential relevance of that finding to the present proceedings is to the question of suitability of S as a substitute decisionmaker for FH that is, either as a guardian or an administrator, or acting under the EPA and EPG executed by FH in favour of S. However, the focus of the proceeding was the question of whether FH was a person for whom orders could be made. The Presiding Member declined to disqualify herself.
Representation of FH
12 A letter was also filed on 25 May 2016 by solicitors for the applicants asking that the Tribunal make a direction that solicitors and counsel acting for FH be removed due to conflict, or potential conflict, from further proceedings in relation to FH on the basis that solicitors had acted for both S and FH in the previous proceedings. This correspondence was placed on the file and did not come to the attention of the Presiding Member until reviewing the file to finally determine the applications after the final hearing. It is unclear to the Tribunal what power the Tribunal has to make such a direction.
13 It is noted that the issue of the representation of the parties had been raised with the solicitor for FH by the Presiding Member as early as 6 April 2016 when it was noted that the solicitor was on the record as acting for MH, FH and their daughter, S.
14 The issue of apparent conflict between FH and S was again raised in the hearing for FH on 19 April 2016. It is not, in current proceedings, a matter for the Tribunal to determine a solicitor's ethical obligations. Having raised the issue, it is a matter for the practitioner concerned.
15 The apparent conflict arises from the history of the matter. By way of background; S has lived with her parents for many years and it is claimed by the applicants that their parents were heavily reliant on her. S is legally trained and had a Deed of Family Arrangement prepared in 2014 which provided that the house property of MH and FH and its contents be transferred to S, on payment by her of sums of money to her three siblings, K, M and F. The Tribunal has heard that K executed the Deed of Family Arrangement while visiting from overseas, but M and F did not, as they say they sought and did not get assurances at the time from S regarding the security of tenure of their parents in the property. The Deed of Family Arrangement was not executed and was withdrawn by S.
16 Later in 2014, a Deed of Occupancy and a Right to Purchase was executed by FH (but not MH, who was a joint owner of the property in question) in favour of S.
17 The Tribunal found in the decision of MH that the Deed of Occupancy was adverse to the interests of MH and that FH had failed to identify or assert MH's interests. Notwithstanding that the Deed of Family Arrangement prepared on behalf of S was not executed, the Tribunal considers that this background, together with the reported dependence and reliance of FH and MH on S, is relevant to the question of the apparent conflicts between FH and S in the current proceedings. Additionally, S holds the EPA of FH. According to s 107 of the GA Act, an attorney must act with reasonable diligence to protect the interest of the donor. The Deed of Occupancy, executed by FH in favour of S, might give rise to an apparent conflict in the context of the allegation made by the applicants that S has historically preferred her own financial interests over those of their parents in the conduct of the household arrangements in that she does not pay rent. S denies this and says she contributes to household expenses.
18 On 13 May 2016, the Tribunal had notice that S was now separately represented but the original solicitor continues to act for FH. The Tribunal notes that if there is a conflict of interest, the obligation of the practitioner is to cease to act for both parties.
19 In the conduct of the matters, it appeared to the Tribunal that S was directing the proceedings. When FH has spoken directly to the Tribunal, he has not maintained central submissions strongly asserted by his representatives on his behalf. For example, on 19 April 2106, FH said MH was being 'kicked out' of hospital and there were no preparations for her return home. This was in direct and striking contrast to the written and oral submissions made on his behalf up to that time. In the hearing for the appointment of an administrator for MH on 13 May 2016, it was strongly asserted by his counsel on his behalf that FH should be appointed as administrator of MH's estate. It was also submitted that he adopted proposals advanced by the applicant daughter for payment of MH's nursing home fees. However, it was obvious that FH had no recollection of the payment proposal and appeared not to recall or to understand details of the financial arrangements explained only minutes before by the Public Trustee's officer in the hearing. At the hearing, FH readily agreed to the suggestion of the Tribunal that the appointment of the Public Trustee as administrator for MH might be made as long as there was a 'level playing field'. It is understood that he meant by this, that his and S's financial needs were met.
20 On 25 May 2016 at the directions hearing, the Tribunal sought information about a written submission tendered on behalf of FH by his solicitors by email dated 25 May 2016 which was in response to allegations that M and F had been excluded from information and family meetings when MH had been in hospital. At the hearing on 13 May 2016, FH had not recalled details of what was said to be decision by him to issue a 'next of kin' letter (NOK letter) to the hospital where MH was a patient, directing that only he and S were to be given medical information about MH. The Tribunal identified that the submission was in the same typeface and style as previous written submissions made by S. The question was asked as to who had prepared the submissions. The solicitor confirmed that he settled a draft from FH received by email. When asked from whom the email was received, the solicitor said it was from FH. Although an email address is recorded for FH in the Tribunal records from the application filed for MH, the Tribunal learned from FH that he has not used a computer for years and cannot recall his email address.
21 It is not controversial that a daughter might assist in the preparation of a submission and send an email for her elderly parent. However, when FS cannot demonstrate any familiarity with the material referred to in the submissions made on his behalf, it potentially calls into question whether he has provided those instructions.
22 In written submissions filed on 8 July 2016 for the Presiding member to disqualify herself, FH's representative made submissions that appeared to the Tribunal, to be made on behalf of S. He made further submissions on matters relating to her interests in the hearing until reminded that she had her own representation (T:88; 08.07.16).
23 In the final hearing on 8 July 2016, the solicitor for FH openly turned to S to obtain instructions in relation to questions the Tribunal was putting to FH about a financial advisor he is said to have consulted in March 2016. FH was being asked to recall the fee referred to in a letter filed with submissions made by S and FH. Following apparent advice from S in the hearing, counsel for FH said that the fee was a 'quote' (T56; 08.07.16). This is inconsistent with the submission filed by S on 19 April 2016 at paragraph 40 on page 8, in which she said:
[FH] attended [and] spoke to a financial planner and his tax accountant about his pension and residential care home payment costs. In particular, he chose to speak to [PC], financial planner, [name of firm] regarding a statement of advice for the residential home care payments. This attached letter from [PC] sets out the information provided by FH to him and the statement of advice that could be available to give a full statement of residential care home costs.
24 It is also inconsistent with the evidence S gave at the hearing on 19 April 2016 (T:19;19.04.16).
25 The only response FH could make to the questions when he was prompted with the name of the financial planner was that he had been born in a town bearing the same name as the planner.
26 FH appeared to have no memory of the fee or the advice. Whether or not he received advice from the financial planner is not the point, as it appeared to the Tribunal, that the solicitor for FH was taking instructions from S.
27 The Tribunal remains concerned that FH's real position may never have been fully before the Tribunal.
Evidence and material before the Tribunal
28 The Tribunal has considered the applications filed by the applicants and their written submissions as well as those filed by and on behalf of S and FH, including documents filed in relation to the applications for MH referred to in submissions of the parties relevant to factual background for determination of the applications for FH. Those documents include:
• a caveat lodged on 25 February 2016 with Landgate to register an interest on the property of FH and MH pursuant to a Deed of Occupancy in favour of S dated 28 July 2014. This was referred to in reasons delivered for the appointment of an administrator for MH (MH). It was noted that an error was made in the date of lodgement of the caveat by S. Based on this error, the Tribunal suggested that the timing of lodgement of the caveat by S indicated an effort to secure her position in the course of the proceedings before the Tribunal. In fact, the lodgement occurred on 25 February 2016, after the commencement of the applications before the Tribunal but possibly before S had notice of them;
• an email from one of the applicants to S dated 30 March 2016 about the Deed of Family Arrangement alerting S to 'likely high care expenses';
• a letter from solicitors addressed to FH dated 28 July 2014 advising that the solicitors had 'perused documents' prepared by solicitors acting for S (a Will, a Deed of Occupancy, an EPA, an EPG and a Right to Purchase);
• a letter from financial planner entitled 'Nursing Home matters' dated 31 March 2016;
• a letter dated 4 March 2016 addressed to the Manager Fremantle Hospital signed by FH which directs the hospital to 'not communicate with in any way (written or oral) with my daughters [M and F or my son K] … I do not wish them to be invited to any family meetings or have any persons working with the hospital to speak with them or provide them with any written information. All medical information (written and oral) for the family should only be given to my daughter [S] and myself only (or our legal representatives)'. There was some debate in the course of the proceedings about whether this direction had ever been given to the hospital. It was suggested by counsel for FH that the exclusion of the applicants might have been 'Chinese whispers' rather than reality (T:37; 13.05.16). A copy of the letter was produced to the Tribunal by the Public Advocate's investigator. The document is notated 'Given to the investigator during [meeting] with [doctors] 1/4/2016'. The Tribunal is satisfied that the letter was prepared by S as it is in the same typeface and form as her previous submissions. The Tribunal is satisfied that the Public Advocate's investigator obtained a copy of the letter from the doctors at Fremantle Hospital and infers that the doctors received it from FH or S. In the hearings and for the purposes of these reasons, this letter is called the 'NOK letter';
• an EPA dated 28 July 2014 by which FH appoints S as his sole attorney;
• an EPG dated 28 July 2014 by which S is appointed enduring guardian; and
• a written submission filed by K, the son of FH, opposing orders being made for FH;
• a report prepared by the Public Advocate's investigator; and
• reports and correspondence from the Public Trustee following appointment for MH; a letter from the Public Trustee enquiring about large cash withdrawals from the joint accounts of MH and FH; and the response from solicitors for FH to that letter.
29 The Tribunal also heard oral evidence from the applicant daughters, FH, S, K, the Public Advocate's investigator and the Public Trustee's officer as appointed to act for MH and from Dr S, the general practitioner of FH. (K attempted to participate in the hearings for his parents by telephone from overseas. Unfortunately, due to technical difficulties in maintaining the connection large parts of the hearings were not heard by him).
Legislation
30 In all proceedings brought under the GA Act, the Tribunal is required to 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.
(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.
Guardianship
(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.
Administration
(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.
(3) An appointment under subsection (1)
(a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b) may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given.
31 Pursuant to s 110J of the GA Act:
A person who, in the opinion of the State Administrative Tribunal, has a proper interest in the matter may apply to the Tribunal for a decision under this Division.
32 Pursuant to s 110N(1) of the GA Act:
The State Administrative Tribunal may make an order
(a) revoking an enduring power of guardianship; or
(b) revoking the appointment of one or some of the persons who are joint enduring guardians under an enduring power of guardianship if the person or each of the persons
(i) wishes to be discharged; or
(ii) has been guilty of such neglect or misconduct or of such default as, in the opinion of the Tribunal, renders the person unfit to continue as an enduring guardian; or
(iii) appears to the Tribunal to be incapable by reason of mental or physical incapacity of carrying out the person's duties;
or
(c) revoking or varying any of the terms of an enduring power of guardianship.
33 Pursuant to s 110H of the GA Act, s 51 of the GA Act applies to an enduring guardian and appointor as if they were a guardian and a represented person.
34 Section 51 of the GA Act provides guidance as to the meaning of best interests in the context of actions by a guardian of a represented person. Section 51(2)(d) of the GA Act requires a guardian to act in such a way to protect the represented person from neglect, abuse or exploitation. Section 51(2)(g) of the GA Act provides that a guardian acts in the best interests of the represented person if she acts in such a way as to maintain any supportive relationships the represented person has.
35 Section 44(5) of the GA Act provides that the Public Advocate shall not be appointed as guardian of the represented person unless there is no other person who is suitable and willing to act.
Is FH a person for whom an administration order and a guardianship order may be made?
36 In determining the applications for the appointment of an administrator and a guardian for FH, the Tribunal must start from the presumption that FH is capable of making reasonable decisions concerning his estate and his person.
37 In respect of the application for the appointment of an administrator, the Tribunal then considers whether FH has a mental disability within the meaning of the GA Act. If the Tribunal finds that FH does have a mental disability, it must then consider whether it is satisfied on the evidence, despite the presumption, that by reason of that disability, FH is unable to make reasonable judgments in respect of matters relating to all or any part of his estate, and if so, whether he is in need of an administrator of his estate.
38 In determining the guardianship application, the Tribunal must consider whether any of the paragraphs in s 43(1)(b) of the GA Act apply to FH and if he is in need of a guardian.
39 In consideration of the need, the Tribunal must consider whether less restrictive alternatives meet the needs of FH such that, even if he is a person for whom orders may be made, there is no need for the orders as the less restrictive arrangements in place meet his needs.
40 In their application, the applicants say:
Medically [FH] is cognitive, however he is making decisions under the guidance and influence of [S]. These decisions directly impact [MH's] health safety and her assets. Our concerns about [FH] arise from his growing physical issues (congestive heart failure and a pacemaker) and to our non-medical eyes his very gradual cognitive impairment. He has been under an incredible amount of stress or carer burnout.
41 The applicants say that FH was not acting autonomously but was being controlled by their sister, S, in decisionmaking for their mother, MH, who was in hospital at the time of the applications and had been so since January 2016. By the time of the final hearing for MH, she had been in three different hospitals in the course of that admission. The applicants said that recommendations had been made at the first hospital where MH had been admitted for her discharge to residential aged care, but this had been resisted by S. They said that FH had told them he wanted 'some kind of care' for their mother and 'to be able to visit her and go home and sleep', but he was unable to plan for this or resist decisions by S that their mother should be discharged home against, what the applicants said, was the medical advice.
42 In determining the applications for FH, the Tribunal has had regard to medical reports of Dr S dated 22 February 2016 (February report), 4 March 2016 (March report), and his oral evidence at the hearing of 8 July 2016. It has also had regard to FH's presentation in the number of hearings conducted by the Tribunal for MH and for FH.
43 Turning to the medical evidence, in both written doctor's guides provided by Dr S, he states that FH does not have any impairment of his cognitive ability or mental function. In the February report, Dr S qualifies this statement with 'when not sleep deprived'. Dr S goes on to say FH 'is frequently sleep deprived and under duress associated with caring for his very disabled and demented wife'.
44 In the February report, Dr S gives the opinion that the represented person is capable of making decisions in relation to his personal health care but he was 'not sure' if FH is capable in relation to decisions about his living situation or his financial affairs. Again Dr S qualifies his comments, saying [FH] 'often acts in what he perceives to be his wife's interests when these do not seem consistent with his own needs'. Dr S states further [FH] 'lives with his disabled wife and his disabled daughter. [FH] makes decisions based on their needs and requests possibly to his own detriment'.
45 In his March report, Dr S gives the opinion that the represented person is capable in all the spheres referred to above.
46 In his oral evidence at the hearing on 8 July 2016, Dr S says that FH 'has a major cardiac disorder he nearly died of a few years ago' (T:99; 08.07.16) but his heart disease had been 'relatively stable over the last couple of years'. Dr S said that FH had multiple specialist referrals over the past 12 to 14 months for multiple medical conditions (T:100; 08.07.16).
47 Dr S said that on 22 February 2016, he had performed a Mini Mental State Examination (MMSE) on FH and that FH had scored 28/30 which Dr S agreed was 'substantially normal'.
48 In addition to sleep deprivation, Dr S indicates that FH has been prescribed a number of medications which Dr S says at 'various times could certainly impair his memory so that he may be able to pass a mini mental state examination on some occasions there may be other days where he could be more confused' (T:72; 08.07.16). Dr S says that 'at various times when faced with complex issues [FH] tends to agree with people'. Dr S gave the example of his attempts to have MH referred for an ACAT assessment in 2014 ( because he had serious concerns about her deteriorating mobility) to which FH had initially agreed, but Dr S said he was later advised that S had 'declined the ACAT visit' (T:73; 08.07.16).
Dr S said he was surprised at FH's performance on the MMSE. When asked why this was, he said:
- Basically because on multiple other occasions, I mean, where Mr [name deleted] has come in he has had trouble recalling things and had trouble putting things, you know, in order which they were documented here and so I had assumed that he would have a greater memory deficit than he was able to display on formal testing.
(T:91; 08.07.16)
49 When the presentation of FH in the hearings before the Tribunal and his demonstrated memory problems was put by the Presiding Member to Dr S, he responded:
That I mean, that doesn't surprise because that has certainly happened in consultations I've had with him. It's the it's always there but he seems to always pass his formal testing which makes me wonder, and I'm not an expert in this field, whether or not a minimental state examination, which is the standard test that GPs do, is possibly not the correct test for him. But they're the which is why well, I agree with what was mentioned earlier is that getting an opinion from a specialist at this point I think was an excellent idea because I there are inconsistencies which which I'm not the obviously able to explain to my own satisfaction and let alone to the that of the Tribunal.
(T:92; 08.07.16)
50 When asked, Dr S agreed with counsel for the applicant daughters that shortterm memory problems may be an indication of early dementia. However, on testing on 22 February 2016, Dr S said that FH had not lost points in the MMSE for recall.
51 Dr S said he had agreed to make a referral (following the request from the Public Advocate's investigator) to a psychogeriatrician but that FH had not responded to letters and a telephone call asking him to contact Dr S. Dr S said he had not seen FH since 10 March 2016.
52 Dr S said 'it's only suddenly he's gone four months without seeing me.' Dr S said that 'this is the first time in seven years that he has gone this long without seeing me and given his health is significantly worse now than it was then, that is why I wondered whether I was still his GP' (T:100; 08.07.16).
53 The applicants assert that FH has 'not been allowed to be ACAT assessed or dementia checked since July 2015 when he had had a driver dementia check by his doctor'.
54 Dr S said that in his opinion, FH was capable of consenting to medical treatment with some qualifications that FH was 'old school and inclined just to agree with the advice he is given [as] doctors know more about his medical condition'. Dr S said:
[T]hat's fine on the occasion when he comes in to see me by himself. When [S] is in the room, it is virtually impossible to carry one on one conversation with [FH] because [S] is always wanting to to introduce herself into the conversation and and pretty much tell people how she would like things done. So, in the presence of [S], talking to [FH] is is not really he would be in charge of the conversation at all and that has been and that has been the case for a number of years and when he comes in [S] is more likely to be present than not. Although he did come in for the [inaudible] himself.
55 (T:78; 08.07.16)
56 When asked to compare his responses in his February report and his March report, Dr S disagreed that he no longer had concerns about duress or sleep deprivation in FH when it was put to him those matters had been resolved by March 2016. In response, Dr S said:
No, I have written the form out because people have specifically come in and requested it and I would have been I almost certainly avoiding an argument with [S], where because she likes to manipulate and have me what I write. So whilst when he is not sleep deprived, I am happy that he is quite capable of making cogent decisions when he is sleep deprived I did do believe that his decision making process is impaired and I do apologise if I didn't specify that on the second form but that would have been because I didn't want to be didn't want to be involved in a very long discussion with [S ] because I have had been involved in very long discussions with [S] before where, basically, she essentially likes to manipulate how things are written and there have been multiple occasions in the past where when I've written forms out on her behalf she comes back and she wants them rewritten to suit her purpose. So I would have been actively avoiding getting involved in a confrontation with her about how I believed her father's ability to make decisions is significantly impaired when he is under duress.
57 (T:86; 08.07.16)
58 In the hearings before the Tribunal on 19 April, 13 and 25 May, and 8 July 2016, FH demonstrates very poor memory. FH himself acknowledges that his 'memory is not good' (T38, 39 & 45; 08.07.16). When asked how long this had been the case, FH said:
Fairly recent times. That's it's not a sudden avalanche where at the same time presumably it's impinging on my choices of decisions.
…
It all - when you're doing certain things you draw on experience and take it for granted that you make the right decisions, but now I stop and think of it - - -
…
- - - and where necessary I seek advice.
(T:38; 08.07.16)
Examples of FH's difficulties with his memory demonstrated in the hearings include:
- • he could not recall his regular household bills or whether he had any term deposits;
• he could not give an estimate of what money he had in the bank;
• he could not recall whether he had an EPA;
• he thought he had an EPG but sought confirmation from his daughter, S;
• he could not recall whether he had applied for an Australian pension.
• he did not know the value of his house and could not give any estimate of its value despite a valuation being provided in the written submissions filed for him in the course of the proceedings before the Tribunal;
• he could not recall obtaining advice from solicitors in July 2014 regarding an EPA, an EPG, and a Deed of Occupancy signed in favour of S, despite a letter from solicitors from July 2014 being filed in the same submissions;
• FH says that he believes he and MH owe his daughter, S, money (as she pays accounts and is reimbursed by bank transfers) but has 'no idea' of the amount; and
• on 13 May 2016, when asked, FH said he could not recall that applications had been made to the Tribunal for him (which had been part heard on 19 April 2016).
59 FH, although acknowledging his poor memory, said, in dialogue with the Presiding Member:
FH: Well, I feel mentally I'm okay - - -
MEMBER: Yes.
FH: - - - I would imagine. There are people who I consult with.
MEMBER: Yes, and who are they?
FH: Their advice is very, very sound.
MEMBER: Who do you consult with, [name deleted]?
FH: Pardon?
MEMBER: Who do you consult with?
FH: There's - over there.
MEMBER: What's that man's name?
FH: I'm sorry.
MEMBER: That's all right, [name deleted]. Do you recall this gentleman's name?
FH: At the moment no.
(T: 34; 08.07.16)
60 In this exchange, FH was asked directly the name of his solicitor who was in the hearing room and has acted for him since February 2016.
61 The memory problems FH demonstrates are not confined to financial or legal matters. He could not remember the name of the facility in which his wife is accommodated and where it is said he visits her at least daily. At times, it appeared that he was unsure that MH had been discharged to the facility from hospital. For example, in the hearing on 13 May 2016, FH said:
Well, she has not transferred from the ICU in Fremantle to the she what do you call that the hospital now she's in.
(T:13; 13.05.16)
62 Later, in the same hearing, when asked about the present situation of MH, FH said that 'everything was being done by the hospital staff' (T:17; 13.05.16). Again, in the same hearing, when asked where MH was presently located, FH said 'the what's the name of that the the the home she is in'. Later, when discussing balancing his and S's needs with those of MH, FH said 'well, not just hers, but the the official organisation we're paying money to'. When prompted with the name of the nursing home, he said 'yes' (T:53; 13.05.16).
63 FH said at the 13 May 2016 hearing that MH had been in hospital for two years when she had been admitted to hospital in January 2016.
64 When asked about his own health, FH denied any significant health problems other than tinnitus. This is in conflict with the evidence of Dr S.
Findings - Capacity
65 Dr S's opinion regarding FH's impairment as a result of sleep deprivation or the possible effects of pain medications may not support a finding of a mental disability in FH since these are entirely transitory conditions. However, the Tribunal finds that Dr S was suggesting causes to explain the presentation of FH during consultations in light of FH's performance on the MMSE. From the Tribunal's own knowledge, performance on an MMSE in isolation cannot be taken as determinative of a mental disability that causes memory loss. FH has not had any specialist assessment or relevant investigations. In addition, Dr S has not assessed FH, or seen him for four months, although Dr S felt there was a need to further explore the apparent inconsistency between FH's presentation as observed by him and FH's results on the MMSE. This assessment has not occurred, apparently on legal advice.
66 The Tribunal considers, based on the oral evidence of Dr S, that his opinion as expressed in his reports, is based on his inability to identify a diagnosis that explains FH's presentation. The Tribunal finds that Dr S consistently observed confusion and memory loss in FH's presentation but that he was not able to identify a relevant diagnosis to explain these symptoms.
67 The evidence of FH regarding his hearing impairment and tinnitus also do not support the finding of a mental disability.
68 The applicants say that FH is under duress or subject to influence by S and he is vulnerable and indecisive. The evidence of Dr S tends to support their assertions. However, even if findings such as these could be made in this jurisdiction, they would not support the making of an administration order for FH.
69 As noted earlier, an administration order may only be made if the Tribunal is positively satisfied on the evidence that FH has a mental disability which leads to his inability to make reasonable judgments about his estate; being vulnerable is not enough to support the making of an administration order (Public Trustee and KMH[2008] WASAT 171).
70 The Tribunal has considered whether the poor memory and confusion demonstrated by FH in the hearings might be explained on the basis that he is a frail, elderly, reportedly physically unwell man, hard of hearing and under stress because of his wife's illness and hospitalisation, and that he is likely anxious about the proceedings in the unfamiliar and potentially intimidating environment of the Tribunal. However, when speaking in the hearings about past events such as achievements in his working life or his children's educational success, although he is repetitive, FH is animated and able to give some reasonable detail of these matters. This is in stark contrast when he is asked or speaks about more recent events.
71 The presentation of FH in the hearings is consistent with Dr S's observations in consultations with FH and with those of the Public Advocate's investigator who reports that she interviewed FH at his home on 15 April 2016. According to the report, during the interview, FH presented with memory problems and referred to handwritten notes to respond to questions asked by the investigator. The investigator reports that FH's answers were not always responsive to the questions asked. The investigator reports she asked FH about the solicitor representing him at the hearing before the Tribunal and reports he referred to his notes and then incorrectly gave the name of the solicitor who advised on the EPA and other documents in 2014. The investigator reports that when the home telephone rang in the course of the interview, FH asked the investigator where the telephone was and how to operate it.
72 As stated in the hearing on 19 April 2016, the medical evidence, in terms of the written reports before the Tribunal, did not displace the presumption that FH is capable. The oral evidence of Dr S did provide further background information but it did not provide further evidence which, on its own, would rebut the presumption that FH is capable of making decisions for himself.
73 It was submitted on FH's behalf and the Tribunal accepts that FH does not have to prove his capacity, that he is under no obligation to participate in a specialist capacity assessment proposed by the Tribunal.
74 The Tribunal must identify the mental disability suffered by FH and find that there is a causal link between that mental disability and the inability of FH to make reasonable judgments about his estate to make an administration order for him.
75 The making of reasonable judgments is the outcome of a cognitive process that involves knowledge, understanding and evaluation. The question of capacity to make reasonable judgments must take into account both FH's ability to undergo the cognitive processes to come to a judgment and his ability to make judgments about his own estate as it exists (see: FS[2007] WASAT 202).
76 The lack of clear medical evidence before the Tribunal that establishes FH has a particular condition that comes within the meaning of 'mental disability' and provides opinion evidence that, because of the condition, FH is not capable of making reasonable judgments, does not mean there is no evidence on which to determine these applications or on which to rebut the relevant presumption.
77 It is the responsibility of the Tribunal to determine the ultimate question; that is, the capacity of FH on the evidence before it (see for example: Re SB[2013] EWCOP 1417; XYZ v State Trustees Ltd[2006] VSC444; LGM [2016] WASAT 45).
78 The Tribunal is satisfied on all of the evidence before it (that is, the presentation of FH in hearings before the Tribunal, the evidence of the investigator and the oral evidence of Dr S which supports the observations of the Tribunal) that FH is does have a mental disability and by reason of that disability, is unable to make reasonable judgments about his estate and his person.
79 This finding is made in light of the presumption of capacity. That is, the Tribunal is positively satisfied that the presumption has been set aside.
80 The definition of 'mental disability' in s 3 of the GA Act is inclusive and the list set out in the definition of; 'dementia, intellectual disability, psychiatric condition' is not an exhaustive one.
81 The Tribunal finds that FH's memory impairment is of such a consistent and ongoing basis that it is a mental disability for the purposes of s 64 of the GA Act. Although the cause of this mental disability and the relevant medical diagnosis is not known, this does not prevent the Tribunal finding, in the circumstances of this case that a mental disability exists. The Tribunal does find that FH is unable by reason of that disability, to make reasonable judgments about his estate.
82 The Tribunal finds that FH's memory impairment renders him unable to make reasonable judgments as he has demonstrated that he cannot retain information sufficiently to evaluate it (even within the time of a hearing before the Tribunal) to make a judgment.
83 FH cannot recall or give an account of his estate, other than in the most rudimentary way. The Tribunal finds that his demonstrated memory problems would preclude reasonable judgments about his estate as he cannot retain financial (or other) information to enable him to form a judgment about his affairs.
84 The Tribunal finds that FH is a person for whom an administration order may be made.
85 The Tribunal further finds that FH is unable to make reasonable judgments about his person and he is in need of oversight and care in the interests of his own health and safety (s 43(2)(b)(ii) s 43(2)(b)(iii) of the GA Act).
86 When asked specifically about his health problems, FH denied significant problems other than tinnitus. This is inconsistent with the evidence of Dr S, which the Tribunal prefers. Dr S has been FH's longterm general practitioner, was referring to his notes, and FH expresses great confidence in the care that Dr S has provided to him and to MH. FH's own recollection is demonstrably impaired. Dr S reports that when consulting him, FH at times 'struggled to recall living arrangements and medications' (T:91; 08.07.16). FH has multiple complex medical conditions which require monitoring and management with medications. S reports she has coordinated (and likely attends) the numerous specialist appointments undertaken by FH. The Tribunal finds that FH's lack of recollection of his significant health problems and his reliance on S for management of his appointments supports the findings made.
Application under s 110N Intervention in the EPG
87 Pursuant to s 110J of the GA Act, a person who has in the opinion of the Tribunal a proper interest in the matter may apply to the Tribunal for an order in respect of an EPG.
88 Section 110N(1)(a), under which the application for intervention in the EPG is made, provides that the Tribunal may make an order revoking an EPG.
89 Under this provision, as in all proceedings before the Tribunal under the GA Act, the Tribunal shall observe the principles set out in s 4 of the GA Act, which include, as noted, having regard to the wishes of FH, and to have as its primary concern, the best interests of FH.
Do the applicants have a proper interest?
90 Although the applications made for FH were initially expressed in terms of the impact of FH's decisionmaking on MH and this would, not of itself, be a proper interest required in s110J of the GA Act for intervention in FH's EPG, the submissions filed supplement the application. The submissions filed by the applicants refer to the strain on FH of caring for MH which the applicants say impacted on FH's health and wellbeing over time. Details are given of FH's numerous health problems. Later they referred to concern about FH's weight loss. Dr S, in his evidence, said that F had raised with him as early as February 2016, concerns about FH's health.
91 The concerns of the applicants, which they say, prompted the applications for guardianship and for intervention in the EPG became acute after they became aware of the EPG executed by FH in favour of S through the processes before the Tribunal. They assert there is a conflict associated with S's role as decisionmaker and her interest in the house property and the potential impact this is or may have on decisions for care of their parents.
92 The applicants also assert that S was not responsive to their concerns about FH and did not share information.
93 In a previous decision, the Tribunal has accepted that that it would be a relevant factor in the determination of an application under s 110N of the GA Act, that relatives in a close personal relationship with a person, were not being given medical information about their loved one (BFO &ORS and KPW 2014 WASAT 68).
94 The Tribunal has also held that the requirement of a 'proper interest' should not be restrictively applied, and that it is sufficient that the applicant have 'a real interest, not a frivolous or vexatious or merely prurient interest' (EW [2010] WASAT 91 (EW) at [20] - [27]).
95 The Tribunal accepts that the applicants have an ongoing close relationship with their father and have a genuine concern for his health and welfare, sufficient to find they have a proper interest in bringing the application to intervene in the EPG.
Wishes of FH
96 Although the nature of the legal advice FH is said to have received at the time of the execution of the EPA and EPG and other documents is questioned, there is nothing before the Tribunal that supports the contention that FH was not capable of executing the EPG and EPA in 2014.
97 These instruments are consistent with his wishes expressed then and now that S manages his personal and financial affairs.
98 FH says he is not opposed to M and F being involved but that S lives with him and he wants that to continue indefinitely. The Tribunal has no doubt that FH prefers S to be the decision-maker for him.
Need for a Guardianship order
99 An EPG may be a less restrictive alternative to the making of a guardianship order, (even where a person is a person for whom a guardianship order may be made) if the Tribunal can be satisfied that FH's needs may be met through the EPG.
100 Although the request for a referral to a psychogeriatrician came from the Public Advocate's investigator (at the request of the Tribunal) Dr S states that such a referral for FH is an 'excellent idea'. That the referral has been resisted by FH, and the Tribunal infers S, is understandable within the context of opposing the applications before the Tribunal. However, this is not a decision in the best interests of FH as the Tribunal accepts the submission of the Public Advocate that such an assessment may indicate treatment, medications or services that could assist FH. It may be the case that there is a reversible cause for what appears to have been a significant deterioration in FH's memory, which FH says, is a fairly recent occurrence. The Tribunal accepts that it would be in FH's best interests that this be investigated. For the reasons given regarding FH's lack of recall of his health problems, there is a need for a guardian to consent to such a referral on his behalf.
101 The applicants say that FH has lost weight and may not be eating properly. Dr S could not be certain about FH's weight as he has not seen him since March 2016, but he suspected that FH had lost weight. He could not say precisely why this was. FH says that he receives Meals on Wheels and S states that he has lunch every day together with MH at the facility in which she now lives.
102 Following submissions that S was addressing all the health issues of FH through her coordination of multiple specialist appointments, K expressed concern that S, (as enduring guardian) may not make decisions in the best interests of FH:
Even Dr [S] mentioned all the specialists and medications my dad has had and continues to receive attention from. So obviously he's getting a lot of medical attention. However, my sister [S] is an extremely anxious person. She has been all of her life and she tends to compensate for this by trying to take control of situations over control to try and maintain the status quo, to prevent change. In the case of my father, given his age, status quo I think is something he welcomes. He doesn't want change in his life. However, we have to face the fact that, as he continues to age, he will his health will decline and he will get to a point, like my mother did, where he can no longer live independently and a decision will need to be made. I do not think [S] will make that decision when the time comes, and it may come weeks or months or years, I don't know when, because I think her compulsion to maintain the status quo or for him and for her will override the facts that she sees before her eyes. This was the case with my mother and she was the last of us to come around to it. She did come around, but the last, and potentially these hearings will be the trigger for her to eventually support that. So whilst I don't think [S] wishes any ill on our father in that sense, I think she would be blind when the time comes and we need someone who can make that decision when my father needs to have the keys taken off him because he cannot drive and when he needs to potentially move into a home like my mother is at the moment. I don't think [S] will be able to make that decision at that time, and that then would not be in my father's best interest.
(T:118; 09.07.16)
103 On the currently available evidence, neither of the issues identified by K a potential move into residential aged care for FH or to restrict him from driving supports the inclusion of functions to consent to a driving assessment or to make decisions about where FH should live in the current order. However, given FH's significant health problems, both issues require close consideration and monitoring, with a focus on the health and safety of FH, and not compromised by prejudgment or conflicting interests. S does not drive and is reported to accompany FH. S has made her position clear, both in submissions and through her actions, about retaining the house owned by FH and MH (in which both she and FH live) for her own use, and this represents a conflict should consideration of a move to residential aged care for FH be required.
104 In all the material filed, S asserts that FH is fully capable of managing his affairs and resists any exploration of his functioning. Her explanation for the refusal of an ACAT assessment in 2014, on the basis that the services were adequate, is not persuasive. As noted, the Tribunal finds that S had a role in the refusal of FH for a referral to the psychogeriatrician for assessment because FH is reliant on S's judgment. This has been demonstrated by FH in the hearings as when he is asked questions, he has repeatedly referred matters to S for her response. Dr S's evidence supports this conclusion.
105 Although S asserts FH has capacity to manage his own affairs, her conduct is inconsistent with this position. The Tribunal considers this inconsistency is illustrated by her attendance with FH and significant involvement at medical appointments with Dr S and her management of FH's daytoday finances.
106 The Public Advocate submits that the EPG in favour of S is not operating in the best interests of FH because of S's resistance, as the enduring guardian, to the investigation of FH's functioning by a psychogeriatrician.
107 The evidence of Dr S is that there has been an unusual gap in the attendance of FH by Dr S to the extent that Dr S wondered whether he was still FH's doctor. The Tribunal accepts the evidence of Dr S in relation to S's interaction with him. The Tribunal considers it is reasonable to infer that it is because Dr S was prepared to make a referral to a psychogeriatrician, which S opposed, that FH has not attended Dr S's rooms since this issue was raised.
108 S stated in the hearing that the nonattendance at Dr S's rooms was because FH was 'busy' (driving to the hospital to visit MH), but that Dr S remains FH's doctor. She said that a locum service was recently arranged for FH because FH was unwell and too cold to attend Dr S's rooms. S reports that FH had attended his cardiologist 'a couple of times' at the end of May 2016 and each time his medications were adjusted (T:70; 08.07.16). S said that Dr S had been copied into correspondence from the cardiologist and, more recently, she had liaised directly with the cardiologist treating FH. Dr S, who was familiar with the cardiologist seeing FH, reportedat the hearing in July 2016that he had received no update about medication changes for FH from the May 2016 appointments.
109 The Tribunal has significant doubt about S's evidence in relation to the arrangements made for FH's medical care over the last four months. No objective evidence was provided to support her assertions, and the lack of a standard report to Dr S from the cardiologist is odd to say the least.
110 The Tribunal finds that there is a risk that if the matter is left in S's hands, FH will not be returned to the care of Dr S, who has managed his health care for 12 years, and with whom FH is familiar, and in whom he expressed great trust and confidence in the final hearing. Given what FH said in the hearing about Dr S, the Tribunal concludes that it is not his wish to change doctors.
111 An enduring guardian operating under an EPG is obliged, pursuant to s 110H of the GA Act, to act in the best interests to protect the represented person from neglect, abuse or exploitation and in consultation with the person taking into account his wishes. The Tribunal finds that the failure to support the referral to a psychogeriatrician by S is neglect of FH's potentially changing health care needs, in the context of what FH says is a recent deterioration in his memory and where the cause may be reversible. It may be the case, as suggested by K, that S, for her own reasons, is 'blind' to the situation before her.
112 The NOK letter, which the Tribunal finds was prepared by S and signed by FH (and which FH could not remember when asked about it in the hearing) directed the hospital in which MH was a patient, to exclude the applicant daughters from involvement in family meetings and medical discussions about MH. This action may have been taken on legal advice as asserted by S in her written submission dated 9 May 2016.
113 The Tribunal has previously found, and adopts for the purpose of these reasons, the conclusion that it is not in the best interests of the represented person that health professionals are excluded from receiving a full range of information about their patient from family members if this can contribute to proper assessment of the care needs of that patient. If such action was taken by a guardian of the patient (or an enduring guardian), it would also likely be a breach of s 51(2)(g) of the GA Act as a failure to maintain supportive relationships of the represented person or appointor. The NOK letter, which excluded the applicant daughters, had the effect of adding to the existing family conflict and appears to have contributed to the applications being brought to the Tribunal. The applicant daughters say that S does not share information and does not acknowledge their expressed concerns about FH. The denial by S of the diagnosis of MH provided by the geriatrician to her, and the evidence of Dr S about S's intrusion into the consultations between FH and Dr S, indicates that S is unable to work effectively with Dr S and is unable to accept medical advice that does not accord with her own views.
114 The decision by S to persist with efforts to have MH discharged to home, against advice from a geriatrician in January 2016 when the applicant daughters had raised concerns with her about the toll that the burden of care of MH was taking on FH, must also be considered. This issue is referred to in the report of Dr S, who had reported that FH was sleep deprived due to the care of his severely demented wife and making decisions to his detriment. While it is understood that these are complex issues and there may be competing interests of the elderly couple regarding the decision about entry into aged care, the concerns of the applicants for FH have not been acknowledged in the material filed by S. K's comments reinforce the inability of S to adjust to the changing care needs of her parents.
115 For these reasons , there is a real risk that if S was to continue in the role as enduring guardian for FH, she will continue to make decisions that are not in his best interests. As noted, the efforts of S to maintain the 'status quo', which accords with her openly expressed interest in maintaining the property of FH and MH as her home, creates a direct conflict with the needs of FH should he, in the future, need to access residential aged care.
116 For the reasons given, the Tribunal is satisfied that the EPG executed by FH in favour of S is not operating in his best interests and should be revoked.
117 The Tribunal finds that FH is presently in need of a guardian to consent to assessment and any recommended treatment on his behalf, and to determine the services to which he should have access, including referral and assessments by the relevant Aged Care Assessment Team. This order may be reviewed should the care needs of FH increase over time.
Who should be appointed guardian
118 The Tribunal finds, for the reasons given, that it is not in the best interests of FH that S be the substitute decisionmaker for him, either pursuant to the EPG or as an appointed guardian.119 The applicant daughters support the appointment of the Public Advocate as guardian for FH.
120 The Tribunal finds there is no one at the present time suitable or willing for appointment as guardian for FH and so appoints the Public Advocate as his guardian.
121 The Tribunal is satisfied that a limited guardianship order will meet the needs of FH at the present time. The order may be reviewed as the needs of FH change.
122 The order in favour of the Public Advocate with the limited functions as outlined above is the least restrictive order which the Tribunal finds will meet the present needs of FH.
Need for an administration order
123 S holds the EPA of FH executed by FH in 2014. Her position is that FH manages his own affairs and she assists administratively. The Tribunal does not accept this, given the findings made about FH's incapacity. The 2014 EPA is styled to come into force notwithstanding the subsequent loss of capacity of FH. As an attorney acting under an EPA, S, according to s 107 of the GA Act, must act with reasonable diligence to protect the interests of the donor. This is a fiduciary obligation, and the donee of the power must avoid any substantial conflicts with the interests of the donor.
124 The Tribunal finds the EPA executed by FH in favour of S is not an appropriate vehicle for the management of FH's affairs. The Tribunal finds that S has not acted with reasonable diligence to protect the interests of FH. The Tribunal finds that S's attempts to secure her position in respect of the house property of FH and MH (as a transferee by the unexecuted Deed of Family Arrangement in 2014 or the Deed of Occupancy executed in 2014 but registered on the title of FH and MH in 2016) is adverse to the interests of FH and in potential conflict with her duties as an attorney for FH. If FH's care needs change and he requires residential aged care in the future, any move to residential care for FH (as in the case of MH) will likely require the payment of a significant residential aged care deposit which would inevitably require the sale of this property. The Tribunal finds that S was aware of this potential need prior to her attempts to have the deeds executed in 2014.
125 In the material filed, the applicants say that S has not contributed in an appropriate way to the household in which she has lived for over 10 years and does not pay rent. S denies this and says she pays onethird of household expenses (submission of S at paragraph 35). S states that she has provided significant financial and personal care to her parents over many years.
126 A schedule of payments said to have been made by S between 2015 and 2016 on her credit card and reimbursed by FH and MH has been filed by S. No receipts have been filed to support the schedule of payments. FH has said he and MH owe S money but he had no idea of the amount.
127 The Public Trustee sought an explanation for significant withdrawals made on the joint account of FH and MH between 19 February 2016 and 27 April 2016 totalling $17,435.45. In response, a submission was prepared by solicitors for FH dated 5 July 2016. It is the Tribunal's conclusion, for the reasons previously given, that the response was prepared based on information provided by S.
128 In the section titled 'Bills Paid for [MH]', there are a number of charges which are allocated to MH. It is noted that during this period MH was in hospital and not living in the property. Despite this, the household accounts are 'divided by 2'; with 50% allocated to MH and presumably 50% to FH. The accounts include Synergy, Telstra, Water Corporation and gardening. One hundred percent of MH's medical costs are allocated to her. There is no reference to S's previously reported onethird contribution to the household.
129 Additional costs for MH during her hospital admissions are reported to be incurred for parking ($735) and petrol costs for hospital visiting, and payment for 'afternoon tea' for MH during her hospital stays in the three hospitals, estimated at $1,000 for the three month period. Larger payments were reported to have been paid to a real estate agent managing the overseas property of FH and MH.
130 In the conclusion of the letter to the Public Trustee, it is said 'there is no surplus money to give to the Public Trustee for [MH's] care as [MH's] half of the cash withdrawals and deposits have been spent on her care or her share of the [suburb deleted] property'.
131 The Tribunal does not accept the explanations regarding the disbursement of funds withdrawn from the joint account of FH and MH, and finds there is a need to regularise and provide accountability for the management of household expenditure from the funds of FH. This is particularly important given that the cash assets of FH and MH, and MH's income, will be required to pay for MH's ongoing care costs to preserve the property in which FH and S live, and that no funds of MH will be available to meet her 50% liability for property costs such as rates and insurance and these will presumably have to be met by FH.
132 The Tribunal concludes that the EPA executed by FH is not appropriate to meet his needs, nor in his best interests, and having found he is not able to make reasonable judgments about his estate, finds he is in the need of an administrator of his estate.
133 The applicant daughters propose the appointment of the Public Trustee as administrator of FH's estate.
134 The appointment of the Public Trustee as administrator of the estate is in the best interests of FH to provide independent oversight of the management of his financial affairs in his best interests.
135 The Tribunal revokes the EPA by which FS appointed S as his attorney pursuant to s 108 of the GA Act as inconsistent with the appointment of the Public Trustee as plenary administrator of the estate.
Length of the orders
136 The Tribunal determines that the orders should be reviewed in one year to consider the potentially changing needs of FH, and whether at that time, there may be a proposal for an appointment of a guardian and or an administrator from the family which could be considered by the Tribunal on review.
Orders
The Tribunal declares that the represented person, [FH];
(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. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2. The enduring power of attorney dated 28 July 2014 by which [FH] appointed [S] to be his attorney, is revoked.
3. The order is to be reviewed by 27 July 2017.
The Tribunal declares that the represented person, [FH]:
(a) is unable to make reasonable judgments in respect of matters relating to his person;
(b) is in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
and the Tribunal orders that:
1. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a) Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person; and
(b) To determine the services to which the represented person should have access.
3. 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.
4. The guardianship order is to be reviewed by 27 July 2017.
In relation to the enduring power of guardianship dated 28 July 2014 made by [FH] ('the appointor') appointing [S], the Tribunal declares and orders:
1. Pursuant to s 110N(1)(a) of the Guardianship and Administration Act 1990 (WA) the enduring power of guardianship is revoked.
I certify that this and the preceding [136] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER
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