GSW and HSH

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: GSW and HSH [2011] WASAT 40

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 16 DECEMBER 2010

DELIVERED : EDITED REASONS DELIVERED ORALLY ON 1 MARCH 2011

FILE NO/S: GAA 3123 of 2010
GAA 3124 of 2010

BETWEEN: GSW
Applicant
AND
HSH
Represented Person

Catchwords:

Guardianship and administration - Need for a guardian - Need for an administrator - Best interests of represented person - Interests of the parties in the estate of the represented person - Separation due to illness - Whether spouse of represented person has formed a new relationship - Best interests of represented person to inform decisionmaking by guardian and administrator - Guardian not to be in a position where his interests conflict or may conflict with the interest of the represented person - Guardian and administrator to act in such a way as to maintain any supportive relationships of the represented person - Guardian and administrator to be compatible

Legislation:

Guardianship and Administration Act 1990 (WA), Pt 5 Div 3, s 44, s 44(1)(b), s 44(2)(b), s 51, s 51(g), s 68, s 74, s 75, s 108(1a)(a), s 110ZD(3)(b)
Interpretation Act 1984 (WA), s 5

Result:

The Public Trustee is appointed plenary administrator
The Public Advocate is appointed limited guardian

Category: B

Representation:

Counsel:

Applicant: Ms M Fifield
Represented Person : N/A

Solicitors:

Applicant: Avon Legal
Represented Person : N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications for guardianship and administration were made for HSH by her son, GSW. HSH was in the advanced stages of Alzheimer's disease and required full-time nursing home care.
GSW contended that DKH, the spouse of HSH, had formed a new relationship with LD and had therefore emotionally separated from HSH. He argued that DKH should no longer be permitted to make the medical treatment decisions for HSH and further, that the estate of HSH should be separated from that of DKH. The principal asset of HSH was a property she jointly owned with DKH, and in which DKH lived with LD and her children.
DKH challenged the assertions of GSW and stated that his relationship with LD was one of mutual support in the face of the tragedies that had befallen them. He maintained that his relationship with HSH was as strong as it had ever been. He saw no need to change the situation or separate their estates.
The Tribunal decided that neither DKH nor GSW were suitable to be appointed as guardian and administrator. They had their own interests to consider and had become so opposed and fixed in their views that it was found they could not make decisions for HSH in which her interests had to be paramount.
The Tribunal appointed the Public Advocate as limited guardian for HSH, to consent to her treatment and health care. The Public Trustee was appointed the plenary administrator for HSH with the direction that he investigate the way in which the estate of HSH was currently held and, if appropriate, to take whatever action was necessary to have those interests changed.
The Tribunal delivered its decision and reasons orally. The oral reasons, with minor editing, follow (including anonymising the names of the parties as required by the provisions of the Guardianship and Administration Act 1990 (WA).

Background

Applications for guardianship and administration orders pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act) have been made in respect of HSH. The applications are made by her son, GSW. In addition to guardianship and administration orders, it is also proposed that two enduring powers of attorney executed by HSH in 2005 be revoked. Although there is significant disagreement between the parties about what orders should be made and, if made, who should be appointed, there is common ground that the enduring powers of attorney should be revoked by the Tribunal.
HSH is a 66yearold woman who is in the advanced stages of Alzheimer's disease and who resides in that part of a country hospital which is used for people who require high level care. HSH's illness was first diagnosed in 2003 and she has been in high level care since about March 2009.
The main parties to the proceedings are HSH (the person for whom applications have been made), DKH (spouse), GSW (son), JW (daughter), CW (spouse of GSW), and LD (friend of DKH). Apart from HSH (who was too ill to attend and was not in a position to contribute to the hearing), all of these parties attended the hearing on 16 December 2010. GSW was represented by counsel. Also in attendance was IW, brother of HSH, and NB from the Office of the Public Advocate.

Relevant legislation

The GA Act requires the Tribunal to proceed through a number of steps in coming to a decision about whether to appoint a guardian and administrator. Simply put, the steps are as follows.
A finding must be made on the capacity of HSH. The starting point is that she is presumed to be able to look after her own health and safety or make reasonable judgments about her person and is able to make reasonable judgments about her estate.
The Tribunal must be satisfied there is a need for a guardian and administrator to be appointed. The GA Act states that orders should not be made if HSH's needs can be met by other means less restrictive of her freedom of decision and action.
If guardianship and administration orders are to be made, the Tribunal must decide what should be the scope of the orders. The GA Act states, in respect to guardianship, that if HSH's needs can be met by the making of a limited order (an order which sets out the particular functions of a guardian), then a plenary order (one that gives the guardian full authority over HSH) should not be made. There is no such statutory direction for administration orders although any order made should reflect the needs of the person.
If a guardianship order is made, then the Tribunal must decide who the guardian is to be. Section 44 of the GA Act provides guidance to the Tribunal in the answer to that question. The Tribunal must be satisfied that the proposed guardian will act in HSH's best interests; not be in a position where the proposed guardian's interests conflict or may conflict with her interests and that the person be suitable to act as guardian. Suitability takes into account the desirability of preserving existing family relationships, the compatibility of the proposed guardian with HSH and the person's administrator (if any), the wishes of HSH and whether the proposed guardian will be able to perform the role that he or she is to be given. Similar provisions apply for the appointment of an administrator under s 68 of the GA Act.
The Public Advocate is able to be appointed HSH's guardian if it is determined by the Tribunal that there is noone else suitable or willing to undertake that role. The Public Trustee consents to his appointment as administrator, should the Tribunal similarly find that no other person is suitable or willing to be appointed in that role.
When going through all the steps just mentioned, the Tribunal must as far as possible seek to ascertain HSH's views and wishes but ultimately must make a decision in what the Tribunal judges to be her best interests.

HSH's capacity

There is common ground that HSH is a person for whom a guardian and administrator could be appointed.
The Tribunal has before it reports from her general practitioner and the Nurse Unit Manager at the country hospital. The general practitioner states the diagnosis for HSH as Alzheimer's disease. HSH is described as 'very disabled, immobile and easily distressed'. She is not considered to be able to make reasonable decisions about her personal health care, living situation or financial affairs. The general practitioner states that because of the advanced stage of HSH's illness, she is unable to make any contribution to the proceedings.
The Nurse Unit Manager states that HSH requires total nursing care, and is mostly now unable to follow instructions and is totally immobile.
The evidence of the general practitioner and Nurse Unit Manager (by way of their written reports) is consistent with how the parties experience HSH.
The Tribunal is satisfied on the evidence that HSH is incapable of looking after her own health and safety (as stated, she is in need of total care); that she is unable to make reasonable judgments about her person (she is unable to process information and communicate a response) and that she is in need of oversight and care in the interests of her own health and safety. HSH suffers from a mental disability (dementia) and by reason of that disability is unable to make reasonable judgments about her estate. She is unable to manage any part of her estate.

The need for a guardian and administrator (evidence and submissions)

In making the applications, GSW is putting to the Tribunal that the current arrangements for decisionmaking are not working in HSH's best interests. The current arrangements are that DKH is, generally speaking, accepted by the general practitioner and by the nursing home as the person to whom questions should be directed about HSH's medical treatment and health care, and that DKH manages HSH's income through a joint bank account.
The main argument of GSW (and he is supported in his submissions by the daughter, JW, and by the brother, IW), is that DKH has alienated himself from HSH by the act of entering into a new relationship with LD. The exact nature of this relationship is in dispute, but it is contended by the applicant that what cannot be disputed is that there is a form of cohabitation, in that DKH and LD live in the property (with LD's children) which is jointly owned by HSH and DKH; that is, their former matrimonial home.
GSW maintains that the relationship started not long after HSH went into full-time care. He submits that what DKH has done would be unacceptable to HSH and would offend her value system. It is reported that HSH's first husband had an affair during the course of that marriage.
It is submitted that, were HSH capable of doing so, she would, under the circumstances, end the relationship with DKH and seek a division of their respective property interests. If that is done, then it is submitted by GSW that, if necessary, funds could be made available for any of the future needs of HSH rather than needing just to rely upon her limited pension income.
It is not in dispute that HSH's estate consists of her interest in the jointly owned property, an amount of $8,500 with Vic Super which DKH says is being retained as a 'funeral fund', jewellery and personal effects, most of which are in the possession of JW, some Telstra shares and an entitlement to the Commonwealth age pension.
GSW recounts a recent event (late in 2010) after which he decided to make application to manage his mother's personal and financial affairs. This involved being contacted by the general practitioner and nursing home after HSH developed a respiratory problem (which is dangerous for people with advanced dementia) and which required a decision about active or palliative treatment. DKH was reportedly not available and a decision was eventually made by GSW (DKH disagrees and says that the call for treatment (antibiotics) was a precautionary measure and not at that point a life threatening matter as intimated by GSW).
GSW states that given the changed circumstances (by which he means DKH's new relationship), he is the natural choice to become the guardian and administrator for his mother. He says that he and his spouse moved to be near to HSH and he is immediately available when needed. He says he supports his mother with regular visits, her medications are dispensed through his pharmacy, and he and his spouse provide HSH with grooming and other personal items.
Unfortunately, it is plain enough to me, by virtue of the applications that have been made and the response to those applications, that the questions about what is best for HSH in her personal and financial life are not ones raised in an environment of agreed circumstances and openness to a settled outcome. As is often the case, these matters take the form of a contest with the opposing parties holding strong and no doubt genuine views that what they propose is in the best interests of the person.
I make this statement at this point in my reasons because it is important to be clear about what the main protagonists think of the situation and of each other. It is in that context that they are putting their cases to the Tribunal.
In the case of GSW, a number of points can be drawn from the evidence.
The first is that he feels very strongly about the relationship he believes exists between DKH and LD. The strength of feeling is directly related to a sense of betrayal he has on behalf of his mother who is not in a position to know what is happening. This is clear from the exchange of emails between he and DKH around October 2009 and which are before the Tribunal, having been submitted by DKH.
However, the depth of feeling goes further. In an undated email, but one I assume was made in the same time period, GSW states:
[DKH], I have never had much time for you or believed a word you said. If you are seeing another woman it doesn't upset me because I don't have any real feelings for you and this is what I expected. You never allowed me to get close and I probably didn't feel the need.
The second point is this. In proposing that he be appointed his mother's administrator, GSW further proposes that I direct him to transfer and hold any right, title or interest that HSH has in the jointly owned property to him as trustee for her. In seeking this order, GSW is in effect asking the Tribunal to find that the relationship of DKH and HSH is at an end and to therefore remove any question that GSW is in a position of conflict should he make such a decision without the Tribunal's direction.
The position is argued in this way by counsel for GSW at T:53, 16.12.10:
… [I]f [HSH] passed away, the property would devolve by title by survivorship to [DKH], and whether that would have been again something that [HSH] would have wanted in the circumstances.
But the property is in joint tenancy, and at this stage we're aware that [DKH] - whether he has tenants or whether he has a cohabiter, we are not aware of the circumstances as to whether it's in [HSH]'s benefit to have someone in the house. Is there rent being paid for her share of the property? Is there a consideration of the wear and tear of the property and the premises? Who is paying for the outgoings? In that joint account, the outgoings are being paid by [DKH]. Are they being separated as to whether [HSH] is subsidising [DKH] and his cohabiter?
… [T]here is a conflict in how [DKH] - for no other reason than he is just, I suppose, assuming that the property is his because of the joint tenancy.
The third and related point is that, on GSW's own submission (through his counsel), there is a potential conflict. Counsel states at T:53 T:54, 16.12.10:
Now, whether it's appropriate or not, I have instructed my clients that there is a concern about - and they should, and I'm sure [HSH] would agree, would she have the ability - that she would want, as far as her estate is concerned, to somehow distribute some of her estate to her own children in the event that she passes. We have a copy of the will that appoints [DKH] as executor and also appoints [DKH] as the sole beneficiary.
My concern is - and I have raised this, not my clients - whether it's in [HSH]'s best interests that this will stands as it is, by the fact that should [HSH] pass away first, [DKH] is entitled to the whole property. As I say, it goes to title by survivorship.
I understand that [DKH] has children or issue from another family, and they would accordingly be entitled when [DKH] passes, or should [DKH] be in a de facto relationship, then the de facto would be entitled, to an estate that, my instructions are, was commenced by [HSH] and was increased over time by her contribution from an inheritance, and then purchasing properties of more value, of course with [DKH]'s assistance as well.
DKH's view of GSW is also clear enough from his evidence. In one of the emails before the Tribunal from DKH to GSW (dated 30 October 2009), DKH states in response to allegations of a relationship with LD:
So back off and wait for my email that will set you straight. Don't start loading me with your own hang ups and past problems, [HSH] and I resolved all of her's [sic]. I suggest you do the same. And there will be no 'working through this together', I have the experience of life to know the true right from wrong here, you on the other hand are just starting along the track of life's ebb and flow. Don't mess with me [GSW] by inferring your own prejudices and ideals on me, many people have tried and found themselves floundering in their own problems.
DKH accepts that he said to NB (the Public Advocate's representative) when she spoke with him on 1 November 2010, that he had given GSW 'carte blanche' to make decisions about his mother as he had always done the right thing by her. However, at the hearing, his evidence was:
[DKH]:Yes, at that point in time. This was before he took this action.
This is what I'm saying, I'm quite open to [GSW] having interaction with his mother's welfare because I know his intent at heart is for her best interests. I don't have an argument with that at all. I did leave a notice with the hospital that should there be an urgent requirement, and I stress urgent requirement, because of [GSW]'s proximity to the hospital it may be the quickest response for him. I mean, who knows, I might have been out somewhere and they might need an instant request and if I wasn't instantly available then they could phone [GSW] and do the same thing. I gave the authority. As for 2 November I removed that authority because of this contention.
MANSVELD, MR:   So what is it about? Just explain that to me though. What is it about the application that [GSW] has made, why has that changed your view - if you felt at a point - - -
...
If you felt at a point that he was suitable if you like, that you had no concerns about him making appropriate decisions, medical decisions for [HSH] should that need arise.
[DKH]:It should arise.
MANSVELD, MR:   Now, he has made the application.
[DKH]:Yes.
MANSVELD, MR:   That may have - I mean in your situation you might say that you might be antagonised by that or irritated by it or whatever. But how does that change the fundamental view that she seemed to have held at that point: that [GSW] would make decisions in his mother's best interests?
[DKH]:Well, the fact of this application, that on one single approach by the doctor to make a decision he seems to have overreacted extreme - to the extremity of this. I don't feel that's an appropriate reaction for a person to be able to make a sensible decision in that regard. I would assume he would have to take a lot of medical instruction.
...
I can't trust him now to make a correct decision should it be required.
In his principal evidence, DKH recounts the establishment and progress of his relationship with HSH. He said that they met in 1995, began to live together in 1996 and married in 1998. They bought and sold some properties together in Victoria and Western Australia; they lived the 'good life'.
The diagnosis of dementia in 2003 was a devastating event and understandably changed their lives irrevocably. DKH says that a decision was made to do all the things then that they had planned for their retirement. This mainly meant to continue with the 'good life' and to travel as much as they could.
To do this, DKH says that he and HSH converted what they could of their assets to cash which they spent. This included HSH's inheritance from her mother, her AMP superannuation and DKH's inheritance form his mother.

In the middle of 2004, they decided to move to Western Australia. HSH's children had earlier moved to the State. DKH disputes that it was at the children's instigation that this occurred. He states that at this time he became HSH's fulltime carer and that the household income consisted of their respective Centrelink pensions.
From about 2007/2008, DKH says that he began to receive assistance in the care of HSH from a care provider (LD was one of the carers). He states he received little or no assistance from the children.
Finally in early 2009, it became apparent that the care that HSH needed was more than could be provided for at home and she went into nursing home care. DKH states that he, not the children, arranged for this care, which involved a nursing home and then ultimately a placement at the country hospital which is where HSH continues to reside.
DKH says that his relationship with LD is one of mutual support. In an email to GSW on 29 October 2009, he mentions that he had become close friends with a former carer whose husband had been killed in a motor vehicle accident just over a year ago (obviously referring to LD). They had become 'very good friends and confidants' but that had not impacted on his feelings for HSH. In a subsequent email on 30 October 2009, DKH said he had not seen LD till after HSH had gone into fulltime care and that their friendship had 'only deepened approximately 4 months ago'.
DKH says that LD is financially independent and even pays some of his bills even though he does not ask her to do so. He says that it is wrong for GSW to assume that he has become emotionally removed from his wife because of the changed circumstances. He states in his evidence at T:28, 16.12.10:
The actual relationship with my wife and I hasn't changed, it's still firm and I'm committed to the end of her life, end of story, there's no argument about that.
DKH credits LD in assisting him to deal with a serious health condition, which means that he has been able to resume visits and contact with the nursing home about HSH's care.
DKH says that HSH's pension is paid into their joint bank account which he operates. He pays the nursing home bed fees which consume most of the pension. He submitted a statement from the nursing home which showed that HSH's fees are paid to date.
In respect of HSH's particular personal care needs, DKH states that he makes money available to the nursing home when asked to do so for grooming and other items. He and GSW do not communicate about what each of them provides so as to coordinate the supply of necessary and appropriate items.
DKH states that the general practitioner has been reminded and has accepted that he is the point of contact for medical treatment decisions for HSH (a letter from the general practitioner in confirmation of this is before the Tribunal). The nursing home is also reported to understand this position.
DKH says that when she was capable, HSH was adamant that should all avenues of treatment fail, that she had been declared brain dead and that the only way her life could be sustained was by artificial respiration, then she would not want treatment to continue. DKH says that, otherwise, he would decide active care for any illness that may befall HSH.
DKH has this to say about the property. It is owned jointly with HSH. It is unencumbered. He intends to maintain the property and live in it for the rest of his life if possible. He has no intention of selling the property unless he is forced to. He says he accepts that HSH continues to have an interest in the property and he says he has plans to improve the quality and capacity of the property to supply funds for HSH's needs should that be needed.
DKH says that if he is not able to continue to live in the property he would be reduced to renting and have limited options for his future, something that he says HSH would not have wanted. In an email to GSW dated 30 October 2009 he states:
Bye the bye, this house is not your mother[']s, it is in both our names, but I put up all of the money to obtain it, and then only because your Mother likes it so much. Why do you think I am living on the pension now[?]
DKH submits that avarice is a motive of GSW in pursuing the applications. He says that recently all photographs of him that were placed with HSH in the hospital were either wholly removed or folded to obscure his image.
LD (friend of DKH) has given evidence in support of DKH. She says she first met DKH and HSH in mid 2007 in her role as personal care assistant. She and her late husband visited DKH and HSH and shared many meals with them.
LD provided personal care for HSH for almost two years. She says that during this time, she was aware of little (if any) care provided by the daughter, JW.
She states in her oral evidence at T:32 - T:33, 16.12.10:
I think I would just like to say that in the years that I've known both [DKH] and [HSH][,] [DKH]'s commitment to [HSH] has been absolutely amazing. I was [HSH]'s carer for two years. Next to [DKH][,] I cared for her more than any other person, careworker or family. During that time you can't help but develop a relationship with the care recipient. That doesn't end when they go into care[,] and I can say that from a professional point of view as well as from a friendship point of view.
The implication that [DKH] has moved on: when you have a relationship which is very special you never move on. It's implied that we both really have moved on. My husband unfortunately very sadly was killed in a tragic accident exactly a month to the day before [HSH] went into fulltime care. You never move on. What we're doing is living, managing, surviving.
I thank [DKH] for me being here now and I think [DKH] has got me to thank for the fact that he is here now. I had to drive into Perth the day that he was admitted in acute heart failure. [DKH]'s dedication to [HSH] is within our circle of friends, within our family, is admired enormously. [HSH] is a part of our everyday life, we discuss her openly with the children, we talk about things that happen at the hospital.
I, you know, quite openly buy things for [DKH] to take in for her. I drive [DKH] to [the hospital where HSH lives] when he has not been able to drive. I believe that the support that we're able to offer each other has in fact enhanced [DKH]'s ability over this last year to care for [HSH]. As a careworker, as a person, I find it insulting to think that it's been implied that I would pull [DKH] away from [HSH] and that her care wouldn't be absolutely paramount and it is.
I mean we - as [DKH] said, we're in a mutual care situation. The moral aspect that is raised, to me the only context in which a moral decision can be made is if you are presuming that the relationship is sexual. Our relationship is not. We live in the same house, we are fabulous friends. Yes, we, you know, watch TV, we go out to a movie, we drink a bottle of wine. We care for the kids who have come along in leaps and bounds because I was at a point where I couldn't look after them and [DKH] when - last year was at a point when [HSH] went into full-time care of being absolutely totally and completely exhausted.
He wasn't looking after himself, he was in a depression as was I as I had just lost my husband and we were able to support each other through that and to have it inferred that that's immoral I take extreme offence to and as I said the fact that I would - I don't visit [HSH]. I stopped visiting [HSH]. Two reasons: (1) out of respect to [JW] and [GSW], and secondly because of the love that [DKH] shows to [HSH] …
IW (brother of HSH) says that he has been in contact (on at least a weekly basis) with GSW and JW as to how HSH is faring but has never had that sort of contact with DKH (DKH says that he has been aware of IW and the children communicating and has found no need to 'double up'.)
IW submits that the children are better placed to make medical and care decisions for his sister because of their close proximity to her. He views this as HSH's children repaying the sacrifices she made for them as a single parent. In a written submission, IW states that his late mother left a considerable amount of money in her will to HSH in what he says was the ' … expectation that it would be passed onto her two children when she died'. It is noted that both GSW and JW were beneficiaries in their own right under their late grandmother's will.
The question of HSH's accommodation was raised by counsel for GSW and by JW. With the former, it was on the basis that for financial reasons the hospital may need to shut down some of its services and this may have implications for HSH's care. With JW, the question was raised in the context of her and/or her brother (GSW) moving away from the area for whatever reason and the need then, in her view, also for HSH to be relocated.
There was general agreement on at least one matter and that is that HSH is currently receiving appropriate care at the hospital.
Counsel for GSW also raised but then did not pursue a concern about who should have contact with HSH. I mention this only because, it is reflective, in my view, of the animosity between the parties and also because the way it was put by counsel likely reflects how GSW places DKH in the hierarchy of HSH's family. Counsel put it this way (T:37, 16.12.10):
It is really important to consider that the familial relationships on one side outweigh the other side and should [GSW] be appointed in his role as guardian obviously he has - whether it's going to be a limited or plenary, he has - if it's a plenary then administration - guardianship order, he has the right to decide who the represented person sees and who she associates with.
Of course I have been given full assurance that [GSW] won't exclude anyone if it's in [HSH]'s best interests and if it doesn't harm her in any way so she is protected from harm.

The decision of the Tribunal

It is always unfortunate when matters come before this Tribunal in circumstances where a family member has become disabled and the family fractures when issues are brought to the surface that might otherwise remain in check. I have already said in these reasons that what often follows is a contest of sorts between people who claim primacy in the person's life. The person, because of their disability, is not able to impose their will on the situation.
When this happens, it is not uncommon for guardianship and administration orders to be made and, one might quite reasonably say, the GA Act is appropriately used in these circumstances.
It is my view that HSH finds herself in the situation I have just described. Arguably, the two most important men in her life, her son and her spouse, are at loggerheads.
Now it is clear from the evidence that they have never liked each other. The reason or reasons for that are not important; suffice to say that HSH is not in a position to mediate their joint antagonism which is being played out in decisions that need to be made for her.
It would appear that all of this has been manageable to a point. However, what has intervened to bring everything to the surface is the relationship (however it might be characterised) between DKH and LD.
GSW has taken a view of the relationship that, put simply, places it in the context of an 'affair', and because of his alleged actions, an implicit statement by DKH that his relationship with HSH is at an end.
From this vantage point, GSW is understandably outraged on behalf of his mother; because of the values she is said to hold (and it would seem also held by him) and no doubt in part because of what happened during HSH's first marriage.
By making the applications for guardianship and administration, GSW believes, as his evidence shows, that he his protecting his mother's honour and her financial interests.
DKH sees the situation quite differently. In the first place, he characterises his relationship with LD as one of friendship and mutual support, given the tragic life events that have befallen both of them. He sees no conflict or incompatibility between this relationship with LD and his ongoing relationship with HSH. It is just that the relationship with HSH has changed because of her illness; they are physically separated but, according to DKH, not emotionally separated.
I accept that the views of GSW and DKH are genuinely held. Unfortunately, as is often the case, these views are bound up with other interests, in the first place, as already mentioned, how they see themselves in the hierarchy of decisionmaking, and secondly, perhaps more significantly, how they view their own (individual) interests.
The former is not uncommon in the circumstances in which HSH finds herself; the latter, although on its face not to be condemned, can make it difficult for either of them to make decisions in which HSH's best interests need to be paramount.
This most often manifests in decisions about a person's financial affairs, about how their estate should be configured and used to meet their needs.
The matter of their own interests is demonstrated in the fixed positions held by both GSW and DKH.
For GSW, the position is stark; the relationship between DKH and HSH is finished and the appropriate thing to do (and what, he says, HSH would have done) is to divide the property interests, and for DKH and HSH to go their separate ways. He discloses his own interests in the view held by him (and by his sister, JW) which is that HSH's estate belongs to her and her family (which is said now to exclude DKH). A product of what GSW proposes is that the property interests of HSH should be altered, not only in her lifetime but in their disposition upon her death. Currently, the property is jointly owned and DKH is the sole beneficiary of the residual estate.
For DKH, his own interests are tied to the remaining major asset of the marriage, the jointly owned property in which he lives and in which he hopes to live the remainder of his life (other circumstances not intervening). It is not too harsh to characterise his view of the property as that of being an 'entitlement' in the outcome of his relationship with HSH and in his care for her when she became unwell. He reinforces this position by the statement that his funds were mainly used to purchase the property.
There is nothing in the evidence of both DKH and GSW that suggests that their positions are alterable or open to negotiation and settlement.
For GSW, if appointed administrator, he would crystallise his mother's interest in the property, he proposes, with the direction of the Tribunal, but no doubt if that direction were not given, then with the authority of an administrator with plenary powers. His view allows no consideration whatsoever of: the relationship that DKH and HSH had up until HSH went into fulltime care; the unique circumstances of HSH's illness that physically separated her from DKH; and any emotional attachment that DKH still has for HSH. It also allows for no consideration on the evidence that, should the property interests be separated, HSH's interests are in the first instance reduced should DKH predecease her.
For DKH, the interest that HSH has in the property should in practical terms remain dormant because he needs somewhere to live and, on his now limited income he would find it hard to find suitable alternative accommodation, and her entire needs are being met through the care given at the hospital, which he will continue to ensure is paid.
However, DKH cannot escape the fact that he has invited LD and her children to live in the property that he and HSH own. I make no finding on the exact nature of the relationship (in the context of my decision there is no need to do so) except to say that it does impact on the respective financial interests of DKH and HSH in the property. Counsel for GSW was correct to ask whether at the least LD is or should be paying rent or how otherwise the property costs are being met and what benefit (if any) is currently accruing to HSH's estate. In that respect, it is not DKH's property to do with what he wants without consideration of HSH's interests.
I cannot say what HSH's views would have been in the matters that have been put before me. They are difficult and are not open to black and white responses. I can say that both DKH and GSW premise their respective positions in part on their view of what HSH would have wanted. In the unique circumstances in which HSH finds herself, such certainty on the part of DKH and GSW is open to some doubt.
For all the above reasons, I find that neither DKH nor GSW are in a position to make the estate decisions for HSH in which her singular interests are mediated through the context of how she has lived her life and the decisions she has made.
I have decided therefore to appoint the Public Trustee as the administrator of the estate of HSH. I will give the administrator plenary powers, given the need to determine the financial interests of HSH and to manage her estate. Although it is not usual to do so when he is appointed, I will also direct the Public Trustee to investigate whether the way in which HSH's estate is currently held is in her best interests and if appropriate to take whatever action is necessary, in the relevant jurisdiction, to determine the interests in her estate. The Public Trustee, as administrator, is able to seek further directions from the Tribunal under s 74 of the GA Act if he considers it necessary.
I have not entertained the joint appointment of GSW with the Public Trustee as proposed by counsel for GSW, for the same reasons I would not appoint GSW solely, and also because of the requirement under s 75 of the GA Act for joint administrators to act unanimously, which I am not satisfied would occur.
Given that the continued operation of the existing enduring powers of attorney executed by HSH (however unsafe they may be as stand alone instruments) are inconsistent with the functions I have given to the Public Trustee, s 108(1a)(a) of the GA Act demands that I revoke those instruments and I so order. The enduring powers of attorney in question are the ones executed by HSH on 9 April 2005 in favour of GSW and JW and on 13 April 2005 in favour of DKH.
I will provide the Public Trustee with these reasons and the documents filed with the Tribunal by the parties to assist him in the conduct of the administration.
In respect to the application for guardianship, the contentious area of decisionmaking on the evidence is that of HSH's ongoing medical treatment and health care. Indeed, it was the apparent confusion about who has the authority to make these decisions that prompted GSW, at least in part, to make the applications to the Tribunal.
DKH says that the confusion was more apparent than real and has been rectified. The general practitioner is now clear from whom he should seek consent, as is the hospital. The effect of all of that is that DKH is currently making treatment decisions for HSH as the person responsible under s 110ZD(3)(b) of the GA Act (as HSH's spouse).
Despite what GSW and JW contend, DKH is still the spouse of HSH (the person who is lawfully married to HSH: s 5 of the Interpretation Act 1984 (WA)).
The question before me is whether it is in HSH's best interests that DKH continues in his role of medical decisionmaker. GSW thinks not and proposes himself for reasons already discussed. DKH sees no reason to change the current situation - again, for reasons already discussed.
To assist me in my decision, I am drawn to the guardianship provisions of the GA Act; in particular to s 44(1)(b), s 44(2)(b) and s 51(g) as they provide some grounding as how to deal with the respective interests of a guardian and a represented person and what a guardian (or perhaps any decisionmaker) must do when making a decision in the person's best interests.
Section 44(1)(b) states that a person proposed as guardian cannot be in a position where their interests conflict or may conflict with the interests of the represented person.

Section 44(2)(b) states that in deciding who should be appointed guardian, the Tribunal shall take into account, as far as is possible, the compatibility of the proposed appointee with the person and with the administrator of the person's estate.
Section 51 states that a guardian must act (according to their opinion) in the best interests of the represented person, and s 51(g) of the GA Act states that a guardian acts in the best interests of a represented person if they act as far as possible in such a way as to maintain any supportive relationships the represented person has.
Section 44(1)(b) is broadly stated and I am of the view that I do not need to make a finding on the exact nature of the relationship between DKH and LD to question DKH's suitability in light of the administration order I have made.
A question arises as to the compatibility of both DKH and GSW with the Public Trustee as administrator for HSH, given their fixed positions on how HSH's estate should be dealt with.
And finally, a question arises as to the willingness of either DKH or GSW to consider the importance of their respective relationships with HSH when making a decision as required by s 51(g) of the GA Act.
For these reasons, I have decided to appoint the Public Advocate as HSH's guardian to give consent to her treatment and health care. It is only with such an appointment, in my view, that all the people who are important in HSH's life will have the opportunity to be fully consulted and their views taken into account when significant medical decisions need to be made for her.
I have decided not to include the functions of accommodation and contact in the order appointing the Public Advocate. These matters arose in the course of the hearing, but not with sufficient force or need to satisfy me that they warrant an order at this time. That may of course change.
Although appointed in a limited capacity only, I would nevertheless expect the Public Advocate to use her best endeavours to assist the administrator in the difficult task given him.
I have decided to set the orders for review in 12 months. I am confident that the particular issues about HSH's estate will have been resolved in that time after which the orders in their current form may no longer be required.
I should emphasise that the orders I have made should in no way impact on the support the parties currently provide HSH.

Orders

1.The Public Advocate is appointed the limited guardian of HSH with the following function:
(a)Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person.

2.The Public Trustee 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).
(a)The administrator is directed to determine whether any action should be taken to change the nature of the represented person's interest in the estate that is jointly held with [DKH] and if considered to be in the represented person's best interests, to take the necessary action to alter and secure that interest.
(b)The enduring power of attorney dated 9 April 2005 by which [HSH] appointed [GSW] and [JW] to be her attorneys be revoked.
(c)The enduring power of attorney dated 13 April 2005 by which [HSH] appointed [DKH] to be her attorney be revoked.

3.The orders are to be reviewed in 12 months.

I certify that this and the preceding [103] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER

[2011] WASAT 40

01/03/2011