GC
[2017] WASAT 80
•29 MAY 2017
GC [2017] WASAT 80
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 80 | |
| 02/06/2017 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1036/2017 | 24 MAY 2017 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 29/05/17 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Applications for making of guardianship and administration orders are dismissed | ||
| B | |||
| PDF Version |
| Parties: | GC |
Catchwords: | Guardianship and administration Presumption of capacity Capacity to make reasonable judgments about personal and financial matters Alzheimer's disease Dementia Delirium Tribunal to feel an actual persuasion that evidence rebuts presumption of capacity Clear and cogent evidence needed Vulnerability to influence not of itself determinative of incapacity Enduring power of attorney Enduring power of guardianship |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii) |
Case References: | GC and PC [2014] WASAT 10 Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 Medical Board of Australia and Bowles [2014] WASAT 115 S -v- State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 |
Summary | GC is an 89yearold woman who has been diagnosed with Alzheimer's disease.,Applications for guardianship and administration orders had been made in respect of GC by two of her children, the son, PC, and the daughter, DF.,GC had four children, the applicants who lived in Western Australia and another son, BC, and daughter, LF, both of whom lived in the United Kingdom.,The applications were made pursuant to the Guardianship and Administration Act 1990 (WA).,The most prominent issue before the Tribunal was whether GC was capable of making her own personal and financial decisions.,There was a dispute between GC's children who lived in Western Australia and the children who lived in the United Kingdom. The dispute centred on where GC should live once she was discharged from hospital.,GC was clear in her wish that she wanted to return to the United Kingdom under the care of BC and LF. PC and DF were opposed to this move and were of the view that GC should remain in Western Australia and be cared for in an aged care facility.,After considering all the evidence, including that of the Consultant Geriatrician in charge of the hospital medical team, the Tribunal found that the presumption of capacity had not been rebutted.,There was insufficient evidence of a clear and cogent nature to warrant a finding of incapacity.,The evidence also indicated that GC was capable of making an enduring power of attorney and enduring power of guardianship.,The applications for the making of guardianship and administration orders were therefore dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : GC [2017] WASAT 80 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 24 MAY 2017 DELIVERED : 29 MAY 2017 PUBLISHED : 2 JUNE 2017 FILE NO/S : GAA 1036 of 2017 MATTER : GC
- Represented Person
Catchwords:
Guardianship and administration - Presumption of capacity - Capacity to make reasonable judgments about personal and financial matters - Alzheimer's disease - Dementia - Delirium - Tribunal to feel an actual persuasion that evidence rebuts presumption of capacity - Clear and cogent evidence needed - Vulnerability to influence not of itself determinative of incapacity - Enduring power of attorney - Enduring power of guardianship
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii)
Result:
Applications for making of guardianship and administration orders are dismissed
Summary of Tribunal's decision:
GC is an 89yearold woman who has been diagnosed with Alzheimer's disease.
Applications for guardianship and administration orders had been made in respect of GC by two of her children, the son, PC, and the daughter, DF.
GC had four children, the applicants who lived in Western Australia and another son, BC, and daughter, LF, both of whom lived in the United Kingdom.
The applications were made pursuant to the Guardianship and Administration Act 1990 (WA).
The most prominent issue before the Tribunal was whether GC was capable of making her own personal and financial decisions.
There was a dispute between GC's children who lived in Western Australia and the children who lived in the United Kingdom. The dispute centred on where GC should live once she was discharged from hospital.
GC was clear in her wish that she wanted to return to the United Kingdom under the care of BC and LF. PC and DF were opposed to this move and were of the view that GC should remain in Western Australia and be cared for in an aged care facility.
After considering all the evidence, including that of the Consultant Geriatrician in charge of the hospital medical team, the Tribunal found that the presumption of capacity had not been rebutted.
There was insufficient evidence of a clear and cogent nature to warrant a finding of incapacity.
The evidence also indicated that GC was capable of making an enduring power of attorney and enduring power of guardianship.
The applications for the making of guardianship and administration orders were therefore dismissed.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
GC and PC [2014] WASAT 10
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37
Medical Board of Australia and Bowles [2014] WASAT 115
S -v- State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
Introduction
1 GC is an 89-year-old woman who has been diagnosed with Alzheimer's disease.
2 Applications for guardianship and administration orders have been made in respect of GC by two of her children, the son, PC, and the daughter, DF (referred to individually and as the applicants).
3 GC has four children, the applicants who live in Western Australia and another son, BC, and daughter, LF, both of whom live in the United Kingdom (UK).
4 The applications are made pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
5 The applications were referred to the Public Advocate for investigation and report pursuant to s 97(1)(b)(iii) of the GA Act.
6 At the time of the hearing of the applications, GC was in hospital having been admitted in early April 2017.
7 The most prominent issue before the Tribunal is whether GC is capable of making her own personal and financial decisions.
8 There is a dispute between GC's children who live in Western Australia and the children who live in the UK. The dispute centres on where GC should live once she is discharged from hospital.
9 GC is clear in her wish that she wants to return to the UK under the care of BC and LF. PC and DF are opposed to this move and are of the view that GC should remain in Western Australia and be cared for in an aged care facility.
10 The applications were heard on 24 May 2017. The hearing was attended by GC, PC, DF, BC and LF who had travelled from the UK and DD, Acting Principal Investigator with the Public Advocate (Investigator). Other family members and friends also attended.
11 Dr C, a Consultant Geriatrician, attended the hearing and gave oral evidence regarding GC's capacity.
12 The decision was reserved.
13 My reasons follow.
The relevant legislation
14 The primary concern of the Tribunal is the best interests of GC: s 4(2) of the GA Act.
15 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of GC as expressed, in whatever manner, at the time, or as gathered from GC's previous actions: s 4(7) of the GA Act.
16 GC is presumed to be capable of looking after her own health and safety, making reasonable judgments in respect of matters relating to her person, managing her own affairs and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
17 Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for GC unless it is satisfied, on the evidence, that she is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, or is in need of oversight, care, or control in the interests of her own health and safety, or for the protection of others.
18 Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of GC unless it is satisfied, on the evidence, that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all, or any part, of her estate.
19 Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
20 If a finding of incapacity is made in respect to GC, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of GC can be met in a manner less restrictive of her freedom of decision and action, then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
21 If the Tribunal decides that GC is in need of guardianship and administration orders, it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
22 As to the authority given to a guardian, if a limited order is sufficient to meet the needs of GC, then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on GC: s 4(5) and s 4(6) of the GA Act.
The question of GC's capacity
23 Dr C is the consultant heading the medical team caring for GC in hospital.
24 Early in GC's admission, she was assessed by the medical team and from that assessment a report was completed by a Registrar who had last seen GC on 13 April 2017.
25 The Registrar's report describes GC's mental state as 'worsening Alzheimer's dementia'. GC was at that time assessed as incapable of making reasonable decisions in respect to her personal and financial affairs, and also incapable of making an enduring power of attorney and an enduring power of guardianship.
26 The Tribunal was also given a copy of a Mini Mental State Examination (MMSE) undertaken by GC, according to Dr C, on 19 April 2017 and in which she scored 17/30.
27 In light of Dr C's oral evidence, he did not further comment on the meaning of the MMSE score.
28 On the same day as the Registrar assessed GC, the medical team's social worker completed her report. Relevantly, in respect to GC's capacity at the time, the social worker stated that GC was receiving assistance from the applicants in the management of her finances and would struggle to make complex financial decisions due to her cognitive impairment which was impacting on her ability to problem solve. GC was also experiencing word finding difficulties.
29 The social worker also stated that GC was struggling to recall advice provided by the medical team and at times she refused to consent to further treatment. GC was also said to lack insight into her circumstances.
30 The social worker reported that prior to the hospital admission GC had lost weight, required prompting to eat and drink and had repeatedly mismanaged her medication.
31 In his oral evidence, Dr C says that he had been on leave and had only returned to the hospital on 23 May 2017, the day before the hearing.
32 Dr C says he had a long discussion with GC and observed her to be much improved in her mental state. Despite this, Dr C's primary diagnosis continues to be that GC has Alzheimer's disease which is a progressive dementia illness.
33 Dr C says that although it was considered that GC did not have any capacity when she was first admitted to hospital in early April 2017, she has improved and this is ongoing. GC was admitted to hospital for a physical condition the effects of which included an impact on her mental state. This delirium continues to resolve.
34 Dr C states that GC seemed to give a fairly convincing account of her financial affairs, although he was at the time unable to verify whether what she described as her estate was correct. GC was able to tell Dr C that she has a bank account in the UK and a bank account in Western Australia, is in receipt of the UK pension and owns the property in which she lives (property) which is unencumbered.
35 Dr C states that GC told him that she wants to go to the UK where she believes she will be supported by her family which, according to Dr C, is not an unreasonable belief although because of the dementia he says that she is more vulnerable to influence than would otherwise be the case.
36 Dr C states that he would be concerned about GC's current physical ability to undertake the long journey to the UK, however she is continuing to recover.
37 Dr C says that if what GC reported about her estate is correct, then he would assess her as being able to make an enduring power of attorney. He also considers her capable of making an enduring power of guardianship.
38 Dr C states that he would currently accept the consent of GC for her medical treatment.
39 Dr C states that the progressive nature of the Alzheimer's disease means that GC's mental and cognitive state will decline.
40 In what appears to be a more general statement about GC's capacity, Dr C opines that there is insufficient evidence to overturn a presumption of capacity and insufficient reason to overturn the wishes of GC (presumably to return to the UK). However, he advises the Tribunal to 'interview' GC to form its own view.
41 A report from GC's general practitioner of 23 years states that he has not assessed her and is unsure as to her capacity to make reasonable personal and financial decisions, or to make an enduring power of attorney and enduring power of guardianship.
42 BC and LF agree with Dr C's assessment of GC's mental state. BC states that his daily telephone contacts with GC contradict the view of the applicants that GC is incapable of making her own decisions. BC states that he and GC have been able to converse generally about things and that she remembers lots of details.
43 BC further states that GC's wish to return to the UK is not a recent wish and refers to the number of testimonials he has filed with the Tribunal from friends and associates in the UK as evidence in support.
44 The applicants do not support the current opinion of Dr C. They say that they have noticed a decline in GC's functioning for at least the past six months. When still at home, GC was said to not consistently take her medications (DF says that GC was hiding her medicines), was not properly eating or drinking, missed medical appointments and was generally losing interest in things she would normally do, including watching television and attending a day centre.
45 DF says that even now GC denies her incontinence problems and that she is unable to mobilise without assistance (GC attended the hearing in a wheelchair).
46 The applicants allege that GC is influenced or 'coached' by BC and LF in expressing her wishes because she has never expressed a wish to return to the UK until very recently.
47 The applicants say they are surprised that it now appears GC hates them.
48 The applicants say that GC does not manage her financial affairs. Prior to returning to the UK in August 2016, the applicants report that LF assisted GC with her finances and that they took over that task when she left. They say they have recently lost access to GC's credit cards, which is how her bills have been largely paid. LF states that GC decided to 'freeze' her credit cards because she did not have access to them and that she is waiting to have the cards returned to her.
49 JC, daughter in law of GC and spouse of PC, states that she provided care to GC in the six months prior to the hospital admission. She agrees with what the applicants have stated in regard to GC's capacity and care needs and adds that the care of GC became too onerous for her to continue to assist.
50 EG, who describes herself as a longtime friend of GC (although she says she had lost contact with GC until very recently), states that GC's mental state has improved because she has been prescribed antibiotics for an infection. EG confirms GC's wish to return to the UK.
51 AC, partner of BC, states that she has known GC for 21 years. She says that despite demonstrating some confusion at times, GC can function with some assistance. AC says that she is a lawyer in the UK and would be comfortable in that capacity to allow GC to make a power of attorney.
52 The Investigator with the Public Advocate interviewed GC in hospital on 18 May 2017 for over one hour. Relevantly, the Investigator reports:
• GC believed the applications had been made to have her placed in an aged care facility and that she was upset at DF about this. GC said she did not want to go into an aged care facility and said she would not survive if placed there.
• She denied she needed services to assist her in her home.
• She did not believe she was as bad as others were making out.
• She could not recall staying in the UK in 2016 for three months.
• She referred to the death of her husband seven years ago and that they had both planned to return to the UK to live. She noted that her husband was buried there.
• When asked why she had not returned to the UK in the seven years since her husband's death, GC eventually responded that six weeks ago she would have said no to returning, but the situation was now different.
• GC said that she would be looked after by BC in the UK and that BC had told her he would give up his job to care for her.
• When asked about a grandson who had been banned by the hospital from visiting her because of his alleged aggressive behaviour (which the hospital social worker reports was directed at staff and GC), GC said the grandson had never been nasty to her.
• GC recalled having two bank accounts, one in the UK and one in Western Australia. She said she receives Australian and United Kingdom pensions.
• The Investigator refers to information given to him by DF and the hospital social worker. It is alleged that GC was found with a note, in her handwriting, purportedly expressing her wish to have the executor of her will changed to BC and AC. The Registrar of the medical team is said to have found the note. When asked about this, GC said to the Investigator that the note stated her wish to live with BC.
53 The Investigator states that the interview with GC was punctuated with her being silent for long periods as she was attempting to remember names or events. GC would occasionally forget what she was trying to recall and believed the Investigator was trying to confuse her.
54 In his oral submissions, the Investigator says that, in his view, GC is agreeing to return to the UK because she sees this as the only alternative to being placed in an aged care facility in Western Australia.
55 The Investigator questions GC's understanding of what might happen in the UK should her care needs exceed that which BC can provide (which, for the Investigator, would likely lead to GC being placed in a care home there).
56 The Investigator also questions whether GC can manage her financial affairs given that she has not done so for some time and also what she understands will happen to her property in Western Australia if she returns to the UK.
57 The Investigator submits that GC is in need of oversight, care or control in the interests of her own health and safety.
58 I decided to hear from GC without the parties present except for the Investigator from the Public Advocate.
59 Relevantly, GC reiterates her wish to live in the UK and be looked after by BC. She says she was always expecting to go back to the UK and wants to be with someone (BC) who loves her. GC says that DF has told a 'pack of lies'.
60 GC says that she has not considered a care home (aged care facility) in the UK because she trusts that BC will care for her. GC believes she will get better once she is in the UK. GC believes she only needs a little assistance.
61 GC states that her late husband was once placed in a Brightwater aged care facility for respite and she did not like what she observed in the home.
62 When asked what would happen to her property in Western Australia if she returned to the UK, GC's initial response was that she would give it to her children. When further questioned she accepted she may need to sell the property, but when asked what she would do with the sale proceeds she again said it would be shared by the children.
63 GC was able to give the name of her general practitioner.
Other matters
64 The applicants state that, in their view, GC's care needs are too high for her to safely return to her home. They are unable to provide what they see as the necessary care. The only viable alternative according to the applicants is for GC to be placed in a suitable nursing home in Western Australia.
65 The applicants say GC has an extended family in Western Australia who will visit her in the nursing home and continue to help her engage with the community.
66 The applicants submit that GC is in denial of her significant care needs as are BC and LF. They say that BC and AC's property in the United Kingdom is not suitable for an elderly person in GC's condition and that BC and LF (and AC) do not appreciate (nor will accept) the changes to their lifestyle that will need to occur in caring for GC.
67 The applicants say that GC will end up in a nursing home (care home) in the UK.
68 PC contends that it would be 'criminally negligent' to have GC undertake the long trip to the UK.
69 The applicants submit that GC is in need of a guardian and an administrator and that the Public Advocate and Public Trustee should be appointed in those roles given the conflict in GC's immediate family.
70 BC and LF dispute the position taken by the applicants.
71 They say that GC and her late husband (and their father) lived six months in the UK and six months in Australia until 1999 when they decided to make a move to Australia, but with the intention that they would return to the UK to spend their remaining years. They kept their bank accounts in the UK.
72 GC's husband passed away in hospital in Australia in 2010. Since that event, BC states GC has visited the UK four times and on three occasions spent three months at a time staying with him and AC.
73 BC states that things started to go wrong for GC when LF returned to the UK in August 2016. Prior to her return to the UK, LF provided the most support for GC.
74 BC states that on her last trip to the UK in August 2016, GC indicated to many friends and family members that she wanted to return there as she did not have anything left in Australia. She said she was very lonely and had a lack of visitors.
75 BC states that he and AC are able to provide GC with her own ground floor bedroom, ensuite shower, wheelchair access and a spacious living area. It is intended that either of them will be available for GC during the day. In addition, BC states that he has made enquiries with the National Health Service in the UK as well as with private providers of care services.
76 BC refers to the testimonials he has provided as evidence of GC's longstanding wish to return to the UK, his good intentions in wanting to care for her and the appropriateness of accommodation that will be provided.
77 LF states that the comment by the applicants about her lifestyle is not correct. She says she has only travelled once in the past two years. She is confident that GC can be given the appropriate care in the UK.
78 BC maintains that GC continues to be able to make her own decisions. However, he proposes himself as guardian and administrator should the Tribunal decide to make those appointments.
79 BC states that should GC be permitted to travel to the UK, he will stay with her in Western Australia until she is well enough to do so.
80 CC, a granddaughter of GC states that the family has been 'broken' for many years and supports the appointment of the Public Advocate and Public Trustee.
81 The Investigator from the Public Advocate submits that the sole motivation for GC wanting to return to the UK is to prevent her being placed in a nursing home. The Investigator submits that had GC intended to return to the UK, she likely would have done so in the seven years since her husband's death.
82 The Investigator submits that GC is vulnerable to influence and refers to the alleged note changing her executor as evidence of this concern. The Investigator says that GC has not demonstrated that she understands the possible cost of her future care because she says that when her property in Western Australia is sold, it should be shared amongst her children.
83 According to the Investigator, GC's vulnerability extends to her financial situation because she has not managed her finances for a long period of time.
84 The Investigator states that he has not formed a view as to what is the most appropriate future accommodation for GC. He is of the view that a guardian should be appointed to make that particular decision.
85 The Investigator submits that the appointed guardian should also be given the authority to make decisions about any services to which GC should have access, and also the authority to decide the contact she should have with others in light of the reported difficulties experienced with a grandson whilst GC has been in hospital.
86 The Investigator poses whether the guardian should also be given the authority to decide whether GC should travel overseas.
87 The Investigator submits that GC is in need of an administrator.
88 The Investigator proposes the appointment of the Public Advocate and Public Trustee and submits that the orders should be reviewed in 12 months.
Discussion
89 In S -v- State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 at [105], Heenan J said:
… I am satisfied that on any reasonable view the evidence before the single member, equivocal and untested as it was, did not justify any finding that a guardian should be appointed or that an administrator should be appointed in view of the seriousness of those allegations and the need for satisfactory proof to be established: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, 361 - 361. The more so is this the case when it is necessary for the evidence to displace the statutory presumption of capacity contained in s 4(3) of the G & A Act. The necessity for the contrary to be proved to the satisfaction of the SAT (s 4(3)) does not diminish the standard of proof or permit some standard less than the Briginshaw standard to be adopted and applied. This is because in the exercise of its functions, and in particular in determining whether or not a certain matter has been established to the satisfaction of the SAT, the tribunal is required to act in conformity with law which has addressed and established the standard of proof which must be discharged.
90 The Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 approach has been characterised as follows:
… That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained. (Medical Board of Australia and Bowles [2014] WASAT 115 at [6])
91 This approach requires the Tribunal to 'feel an actual persuasion of the occurrence or existence of the relevant facts': Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 at [16].
92 The Full Tribunal in GC and PC [2014] WASAT 10 said at [36]:
… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decisionmaking capacity removed from them and a substitute decisionmaker appointed for them under the Act. Because of the significant consequences for an individual of having their decisionmaking capacity removed from them and a substitute decisionmaker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity. (Emphasis added)
93 I accept the evidence of Dr C that GC has been diagnosed with Alzheimer's disease which is a progressive illness that affects a person's cognition and mental state.
94 The diagnosis of Alzheimer's disease does not, of itself, support a finding of incapacity. That depends on the extent the disease has progressed when the question of capacity needs to be determined.
95 It can safely be said that once a diagnosis of Alzheimer's disease has been made for a person, they will eventually lose capacity.
96 Recently GC's Alzheimer's disease has been overlain with a delirium seemingly caused by a physical condition for which GC was hospitalised. According to Dr C, the delirium can also affect a person's mental state.
97 I accept the evidence of Dr C that the delirium has largely resolved and that GC continues to improve. The Alzheimer's disease, however, will not resolve.
98 I accept the assessment and opinion of Dr C, which I take to be that when GC was faced with a combination of the Alzheimer's disease and delirium in the early stages of her hospital admission, she was clearly incapable. However, with the delirium resolving, it is not at all certain that the Alzheimer's disease alone currently prevents GC from making her own decisions.
99 There is no specialist medical evidence before the Tribunal in opposition to the clinical assessment of Dr C.
100 I agree with the submission of the Public Advocate's Investigator that GC's wish to return to the UK is a response to her fear that she will otherwise be placed in a nursing home in Western Australia. GC admits so, herself, when she told the Investigator that her view about the UK might have been different six weeks ago prior to the hospital admission and the applications being made by PC and DF.
101 This is not necessarily incompatible with the evidence that it was always GC's intention that she would eventually return to the UK, given that her late husband is buried there. The issue in that respect was likely one of timing.
102 In my view the wish and intent of GC to return to the UK in the circumstances in which she finds herself is not inherently unreasonable. With that, I agree with Dr C.
103 GC has been promised by her son, BC, and daughter, LF, that they will look after her in the UK. She says that she trusts them. Aside from the assertion of the applicants that BC, AC and LF do not appreciate the level of care that GC will require, there is no evidence before the Tribunal to suggest that what BC, AC and LF intend to do is not a genuine response to GC's needs.
104 In a situation where BC has maintained regular contact with GC and where GC has stayed with BC and AC when visiting the UK, it is not unreasonable for GC to place her trust in BC.
105 I accept that on the evidence, it appears that GC underplays her care needs although she also says that BC is prepared to give up work to care for her which, in my view, is some acknowledgment that she cannot live on her own without assistance.
106 There is no evidence before the Tribunal that suggests GC is not able to give a good account of her estate. She has described her estate to the Public Advocate's Investigator and Dr C at different times, in much the same terms. She has had others assist her pay her bills. Having other people help in daytoday financial management does not mean, of itself, that GC has an inability to make reasonable judgments about her estate. I do not think that much turns on GC's statement concerning the disposal of funds should her property in Western Australia be sold. She is able to be advised of the costs of her future care and how that might be funded.
107 On the basis that GC retains an understanding of the nature of her estate, which I accept she does, Dr C assesses her as capable of making an enduring power of attorney.
108 Dr C also assesses GC as currently having the capacity to make an enduring power of guardianship.
109 I accept that GC has a level of vulnerability due to age, physical limitations and the diagnosis of Alzheimer's disease. However, vulnerability is not, of itself, determinative of incapacity: The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 at [16].
110 For all these reasons, I am not satisfied on the evidence before me that I am able to feel an 'actual persuasion' that the presumption of capacity has been rebutted.
111 If I am wrong in this, I am satisfied on the evidence that GC is able to make an enduring power of attorney and enduring power of guardianship to assist her in her future decision making.
112 The applications for the making of guardianship and administration orders are therefore dismissed.
Order
1. The administration and guardianship applications are dismissed.
I certify that this and the preceding [112] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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