HA
[2023] WASAT 134
•27 DECEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: HA [2023] WASAT 134
MEMBER: MS R BUNNEY, MEMBER
HEARD: 26 OCTOBER 2023
DELIVERED : 31 OCTOBER 2023
PUBLISHED : 27 DECEMBER 2023
FILE NO/S: GAA 4004 of 2023
HA
Represented Person
MA and PA
Applicants
FILE NO/S: GAA 4037 of 2023
HA
Represented Person
MA and PA
Applicants
Catchwords:
Application for guardianship and administration orders - Best interests of represented person - Revocation of enduring power of attorney - Revocation of enduring power of guardianship - Public Trustee appointed plenary administrator - Public Advocate appointed limited guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 43(1)(b)(i), s 43(1)(b)(ii), s 43(1)(b)(iii), s 43(1)(c), s 44(1)(a), s 44(1)(b), s 44(1)(c), s 44(2)(d), s 44(5), s 64, s 64(1)(b), s 65, s 68(1)(c), s 68(1)(d), s 68(3)(c)
Result:
Enduring power of attorney and enduring power of guardianship revoked
Public Trustee appointed as plenary administrator
Public Advocate appointed limited guardian
Category: B
Representation:
GAA 4004 of 2023
Counsel:
| Represented Person | : | In Person |
| Applicants | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicants | : | N/A |
GAA 4037 of 2023
Counsel:
| Represented Person | : | In Person |
| Applicants | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicants | : | N/A |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
REASONS FOR DECISION OF THE TRIBUNAL:
(These are the reasons for decision delivered on 31 October 2023 and have been taken from the transcript, edited only to anonymise parties, correct grammatical errors and some infelicity of expression, to add relevant authorities and headings, without variation to the substance thereof).
Introduction
HA is a 73-year-old woman who lives with her de facto partner of 30 years, YG, in their home in Perth (Perth Property). HA and YG sold their business in August 2022, and since then, they have entered into a new partnership agreement to be partners in a business. They have recently sold numerous properties that they owned jointly or in their sole names, and have spent the majority of their combined funds of around $1.8 million on two properties.
The first is the (First Rural Property), which is around 120 acres of land, which was purchased for around $800,000 in August 2022 in YG's sole name. The parties own another property, the (Third Rural Property), which was purchased in 2017. This property is adjacent to the First Rural Property, and together they form around 150 acres of farmland, where YG and HA hold around 150 cattle.
The second property is the (Second Rural Property), which is owned in joint names and is located around five minutes from the First Rural Property, and around five kilometres from rural town (Rural Town). The purchase of the Second Rural Property was subject to the sale of the parties' Perth Property.
HA has had some health issues, specifically around her memory, since around December 2021. And since then, a number of concerns have been raised about HA's cognitive capacity. In terms of her health, HA is booked to have a hip replacement surgery on 14 November 2023. YG and HA met with the orthopaedic surgeon on 3 October 2023, following a directions hearing at the Tribunal, and YG did not mention to the surgeon that there was a hearing scheduled for 26 October 2023 at the Tribunal that related to HA's capacity.
This application was made to the Tribunal on 4 September 2023 by HA's children, MA and PA, as they had noticed a decline over the last few years of HA's ability to drive and locate their homes, use a mobile phone, cook and shop for food. They were not being kept updated by YG about HA's medical condition, and they wanted to make sure that she was safe and receiving proper care. They were aware that she had gone missing multiple times from the parties' home in Perth in the previous months.
In relation to the move to Rural Town, they were concerned that there might not be as many aged care services and facilities there as there are in Perth. On 6 September 2023, the Tribunal appointed the Public Trustee to be HA's emergency administrator, pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) (GA Act). The Tribunal also referred the matter to the Public Advocate for investigation.
A directions hearing was held on 3 October 2023 at the request of the Public Trustee, as they sought confirmation as to whether they were able to complete the sale and purchase of the Second Rural Property and the Perth Property. The matter was heard on 26 October 2023. These are my oral reasons for decisions, which were delivered on 31 October 2023.
Principles to be observed and legislation
To appoint an administrator for HA, I must be satisfied that HA is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate and that she is in need of an administrator.[1]
[1] GA Act, s 64.
The term mental disability is defined in s 3 of the GA Act. The definition describes certain disabilities, such as an intellectual disability, a psychiatric condition, dementia or an acquired brain injury. The definition also includes the ordinary meaning of the term mental disability, which contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner or within a range considered normal.[2]
[2] FY [2019] WASAT 118 at [27].
To appoint a guardian for HA, I must be satisfied that one or more of the following three factors apply:
(1)that she is currently incapable of looking after her own health and safety;[3]
(2)that she is unable to make reasonable judgments in respect of matters relating to her person;[4] and
(3)that she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.[5]
[3] GA Act, s 43(1)(b)(i).
[4] GA Act, s 43(1)(b)(ii).
[5] GA Act, s 43(1)(b)(iii).
The Tribunal must also be satisfied that there is a need for a guardian[6] and a need for an administrator,[7] as there might be a less restrictive option available for meeting HA's needs, such as informal arrangements. In cases where the proposed represented person has signed an enduring power of attorney (EPA) or an enduring power of guardianship (EPG), the Tribunal needs to be satisfied that those documents form a less restrictive means for decisions to be made in the proposed represented person's best interests.
[6] GA Act, s 43(1)(c).
[7] GA Act s 64(1)(b).
Section 4 of the GA Act sets out the principles that the Tribunal must follow. The primary concern of the Tribunal is the best interest of the represented person.[8] Every person is presumed to be capable of looking after their own health and safety, of making reasonable judgments in respect of matters relating to their person, of managing their own affairs and making reasonable judgments in respect of matters relating to their estate until the contrary is proven to the satisfaction of the Tribunal.[9]
[8] GA Act, s 4(2).
[9] GA Act, s 4(3).
When considering any matter, the Tribunal is required, as far as possible, to ask about the views and wishes of the person concerned.[10] Further, orders should not be made if HA's needs could be met in the opinion of the Tribunal by any other means less restrictive of her freedom of decision and action.[11] And any order appointing an administrator or a guardian should be in terms that impose the least restrictions possible on HA's freedom of decision and action.[12]
[10] GA Act, s 4(7).
[11] GA Act, s 4(4).
[12] GA Act, s 4(6).
In considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of HA,[13] is suitable to act as the administrator of the estate[14] and will be able to perform the functions vested in them.[15]
[13] GA Act, s 68(1)(c).
[14] GA Act, s 68(1)(d).
[15] GA Act, s 68(3)(c).
When considering the appointment of a guardian, the Tribunal must hold the opinion that the guardian will act in the best interest of HA,[16] is suitable to act as the guardian,[17] is not in a position where their interests conflict or may conflict with HA's,[18] and that the proposed guardian will be able to perform the functions vested in them.[19]
[16] GA Act, s 44(1)(a).
[17] GA Act, s 44(1)(c).
[18] GA Act, s 44(1)(b).
[19] GA Act, s 44(2)(d).
HA's views and wishes
HA was very clear at the hearing of 26 October 2023 that she does not need a guardian or an administrator, but if one was appointed, she would want it to be YG.
HA was also clear that she and YG would never go to Centrelink, specifically in relation to arranging aged care services. Her view was that any concerns about her short-term memory or her propensity for getting lost can be dealt with by always staying near YG, specifically when they are working on the rural land together.
HA's strong intention was to continue to work on the rural properties with YG as they had always planned.
Medical evidence
In terms of these matters, I summarise the evidence that has been sent into the Tribunal as follows.
(a)16 December 2021 - Dr H performed a Mini Mental State Examination (MMSE) on HA and she scored 23/30. The letter from Dr H to the Memory Clinic at Hospital asked for a review and stated that the family is concerned about her short-term memory.
(b)4 April 2022 - A medical assessment took place at the Hospital Memory Clinic and the consultant geriatrician, Dr B, formed the view that HA 'displays features that are likely of a mild cognitive impairment. However, given the deterioration over a number of years, is more likely that this will progress to a diagnosis of dementia'. Dr B stated that they would review HA in November 2022 to repeat her MMSE and to see whether there has been any progression.
(c)Two months later on 30 June 2022, HA presented to an Emergency Department of a hospital with a laceration to her head as a metal pole had fell on her while she was working on the rural property. The comment from the doctor was, 'I suspect this lady has worsening cognitive impairment, likely dementia. I have advised the patient in the presence of her partner not to drive or operate heavy machinery (still working on the rural property) until review by yourself. May need formal cognitive driving assessment. I will write to expedite the geriatric followup from November 2022'.
(d)3 November 2022 - Letter from Dr F of the Hospital Memory Clinic, stating that HA and YG refused to attend the follow-up appointment.
(e)23 December 2022 - When on holiday in [Coastal Town] with YG, HA went missing and a local resident took her to the police station, who then contacted PA.
(f)21 July 2023 - HA was left alone at home while YG was away working on the rural property. HA was confused and unsure about where YG was and what she had been doing that day. MA raised concerns about HA being left alone and tried to speak to YG about what would happen if he was delayed in returning. MA says YG did not want to discuss plans like that with him. Also on 21 July 2023, MA asked for a meeting between YG, PA and MA to discuss the assessment process, to get some services in place to assist YG in caring for HA. YG did not want to attend the meeting. PA and MA also asked to attend a medical appointment, and YG said no.
(g)18 August 2023 - HA attended a medical appointment with Doctor H and referrals were made for her hip and memory ailment. Doctor H did a MMSE and HA scored 12/30, which is indicative of a cognitive impairment.
(h)28 August 2023. PA took HA out for lunch and when they returned, YG had met with a real estate agent about listing the Perth property for sale. HA left the home during the discussion and was later found at the local shops.
(i)8 September 2023 - Dr H prepared a medical report for the Tribunal that states that HA likely has Alzheimer's or vascular dementia and notes that HA is awaiting a follow-up appointment at the memory clinic.
(j)A police report including incidents of 21 and 22 September 2023 states that HA went missing on 21 September 2023 and the police were called. HA was found by a member of the public and she was missing for around two hours. She was brought back to the Perth property. On 22 September, HA went missing and the police were called again. She was reported missing after 1.00 pm. She was located by a member of the public at the local IGA and returned home.
(k)3 October 2023 - meeting with HA's doctor for hip replacement surgery. YG booked the surgery for 14 November 2023 and did not mention to the surgeon that there was a hearing occurring at the Tribunal on 26 October 2023.
(l)11 October 2023 - meeting at the Public Trustee with YG, HA and three employees of the Public Trustee. The report prepared by the trust manager following this meeting notes that 'HA had difficulty remembering things and expressing herself, but she was adamant that she will remain working hard at the rural property alongside YG'.
Despite Dr H saying that HA is waiting for a follow-up appointment at the memory clinic, there is no follow-up appointment booked. At the hearing of 26 October 2023, YG stated that he had asked the memory clinic when the appointment will be, but the memory clinic said that they had not received the referral from Dr H's office.
He then asked at Dr H's office whether they sent the referral and they said that they have. At the hearing, the representative from the Office of the Public Advocate (Public Advocate) suggested that YG get a hard copy of the referral from Dr H and physically take it to the Hospital Memory Clinic. YG said that he would do that.
Does HA have a mental disability?
My view is that it is clear on the medical evidence, specifically the report from Dr B as at 4 April 2022, which said that HA had a mild cognitive impairment that was likely leading to dementia. By 30 June 2022 and the presentation at the Emergency Department, the emergency doctor identified and stated that they 'suspect this lady has a worsening cognitive impairment, likely dementia'.
Because YG and HA did not attend the follow-up appointment in November 2022, there is no formal diagnosis of dementia. However, everyone agrees that HA has a memory impairment. In addition, it is clear from the comments made by the trust manager at the Public Trustee, the representative of the Public Advocate, as set out in her report, HA's children and her sister that there are serious concerns about HA's ability to understand what is happening, to look after herself and to make good decisions for herself.
I am therefore satisfied that the presumption of capacity has been set aside and that HA is a person for whom orders can be made. I accept the medical evidence provided to the Tribunal, and I find, that HA has a mental disability which has been diagnosed as a mild cognitive impairment that was likely leading to dementia by Dr B, consultant geriatrician, in April 2022.
In June 2022, the doctors from the Emergency Department suspected that HA had a worsening cognitive impairment, likely dementia.
In the medical report dated 8 September 2023, HA's general practitioner, Dr H, who has known her for around 24 years, stated that she likely had Alzheimer's or vascular dementia and that she was awaiting a specialist appointment at the Hospital Memory Clinic.
HA undertook a MMSE on 18 August 2023 and scored 12/30. This is a decline, as HA scored 23/30 when she undertook that same test on 16 December 2021, also with Dr H.
Does the mental disability cause HA to be unable to manager her own finances?
Because of that mental disability, which affects HA's memory and causes confusion, HA is unable to make reasonable judgments in respect of matters relating to her estate. The evidence before me in the report from the representative from the Public Advocate states that HA was unable to answer a lot of questions herself and she relied on YG to fill in gaps when she had trouble recalling things, which resulted in YG answering most of the questions. The report from the trust manager also stated that: 'HA had difficulty remembering things and expressing herself'.
HA and YG run a business, which YG describes as a cashflow business where when bills need to get paid, they get taken care of. YG has explained that in order for HA's hip surgery, he will take around $20,000 out of her superannuation and with money back from Medicare, the total cost of the surgery may be around $16,000. It was clear during the two hearings before me that HA had difficulty participating and that YG was making decisions and arrangements on her behalf.
In terms of paying for the surgery, that would involve the directors of the trustee company of the self-managed super fund to make a decision to sell the shares owned by the self-managed super fund, deciding which shares to sell, taking all necessary steps to enable cash to be withdrawn from the self-managed super fund on HA's behalf and then recording that information correctly to ensure compliance with the auditing and accounting requirements for the self-managed super fund.
I find that there are complicated matters relating to HA's estate to be thought through and resolved that she cannot manage for herself. In my view, there is no doubt that it is the diagnosis of cognitive impairment, which is likely to be Alzheimer's or vascular dementia, which means that HA has difficulties understanding and remembering things, that is the cause of HA's inability to make reasonable judgments in respect of her estate.
The evidence before me, which I accept, is that HA worked with YG in their business for decades and she earned her own income and made her own financial decisions until her more recent decline.
Is HA able to make personal decisions?
In terms of HA's ability to look after herself and make personal decisions, the evidence sets out that HA is unable to look after her own health and safety, as her children have noticed a decline over the last few years of HA's ability to drive and locate their homes, to use a mobile phone, to cook and shop for food. She has lost weight over time and her children say that when she is alone, she forgets to eat.
HA is unable to make reasonable judgments about matters concerning her person. She has not attended a follow-up appointment at the Hospital Memory Clinic and she has not taken any steps to obtain a formal diagnosis and treatment for her cognitive impairment. She has not taken any steps to obtain an Aged Care Assessment Team (ACAT) assessment or engage any services to assist with her care.
HA is in need of oversight, care or control in the interest of her own health and safety as the evidence sets out that HA repeatedly gets lost in the community. It is a real concern that HA and YG intend to live on a rural property and in order to keep HA safe, the plan is for YG to keep her with him at all times.
Findings in relation to capacity to make personal and financial decisions
Accordingly, in terms of the tests I mentioned at the beginning of the hearing for incapacity, on the balance of probabilities, I find that HA is, by reason of the mental disability, unable to make reasonable judgments in respect of matters relating to all of her estate.
I also find that she is unable to look after her own health and safety, make reasonable judgments about matters concerning her person, and that she is in need of oversight, care or control in the interests of her own health and safety.
Is there a need for orders?
Having regard to the evidence I have just referred to, there is no doubt that HA requires assistance to deal with her estate and to make decisions about her personal matters. The question is whether she needs an administrator and a guardian or whether there is a less restrictive option available.
The evidence before me is that HA signed an EPA and EPG on 30 November 2016. In both documents, she appointed her partner YG to be her enduring attorney and enduring guardian.
As I will set out in more detail below, I am not satisfied that YG is able to make financial decisions in HA's best interests. This is because I find that it is likely that he will prefer his own personal interests in continuing to own the First, Second and Third Rural Properties above HA's interests in having appropriate accommodation and services in order to keep her safe.
I am not satisfied that YG is able to make personal decisions in HA's best interests because he has declined to attend important medical appointments for HA, he has stated he is not going to take any steps to arrange an ACAT assessment, he has not shared medical information with HA's children and HA's children have found it difficult to stay in contact with HA and spend time with her since these proceedings were filed.
I find that the EPA and the EPG do not form a less restrictive way for decisions to be made in HA's best interests. Informal decisionmaking is not an adequate alternative in this case.
I find that it is necessary that a plenary administrator and a limited guardian be appointed to ensure HA's health and safety are protected. I will therefore revoke the EPA and the EPG.
The limited guardian will require the following functions:
(a)Medical treatment and procedures. There are two specific current issues in relation to HA's medical treatment. The first is that HA needs to attend the appointment at the Hospital Memory Clinic to obtain a formal diagnosis and someone needs to follow up on that to ensure that it happens. The second is that HA is booked for surgery on 14 November with an orthopaedic surgeon and it is not known whether or not the surgeon is aware of HA's cognitive impairment, so informed consent will need to be given for the surgery to occur.
(b)Services. HA needs a guardian to be able to contact the ACAT teams in Perth and Rural Town to ascertain when she will be assessed as there could be a significant wait time. The guardian will then need to make appropriate arrangements with Centrelink in relation to the assets test and any related matters to ensure that services can start as soon as possible. It may also be necessary to look into what private services are available to assist HA. HA is resistive to accepting services, so this is something that will need to be arranged for her and may not be in accordance with her wishes.
(c)Accommodation. It is necessary for HA's guardian to decide where she is to live, whether temporarily or permanently, and with whom she will live. HA's decisions are in line with YG's choice of accommodation, and it is not clear whether she has the insight and whether she can fully understand the pros and cons of different accommodation options. This may be necessary in relation to any rehabilitation or respite care following the proposed hip surgery in November 2023.
(d)Contact. It is clear that HA's contact with her children has been limited since the application was made to the Tribunal. MA was previously regularly dropping in a meal and checking up on HA but the relationship has deteriorated since 21 July 2023 and ceased almost entirely since the application was filed on 4 September 2023. So it is necessary that a guardian be appointed to ensure that HA can continue to have regular contact with her family.
Appointment of an administrator
YG is the only person that has proposed himself as HA's administrator and guardian. I find that YG is over the age of 18 and has consented to act as guardian and administrator. However, I am not satisfied that YG will act in HA's best interests or that he is suitable for appointment as either HA's administrator or guardian.
In relation to the administration and management of HA's finances, at the meeting of the offices of the Public Trustee on 11 October 2023, YG gave the trust manager a verbal undertaking that he would not hesitate in selling part of the rural land, to support HA's care needs. He also said that he would welcome a live-in carer in the rural area if need be.
When asked whether HA and YG had enough income to pay the ongoing care fees, the trust manager said that they did not at this stage, unless the rural land started to generate a large income.
The trust manager made a statement that YG did not seem to understand the cost of in-home care. Towards the end of the hearing of 26 October 2023, YG made the unprompted comment that: 'if the children want to put in towards [HA's] wellbeing, that would be handy'. I asked, 'What do you mean?' YG said, 'If they want to put in financial help when she needs it, that's fine'. I asked, 'why would they need to put in financial help?' YG said, 'she's their mother'.[20]
[20] ts 16, 31 October 2023.
I noted that YG and HA had recently spent around $1.8 million on property and that they would be considered wealthy people. I asked, 'why would you need any financial help?'
YG said 'because we might keep the property and have some home help for HA. It's an ongoing exercise. It's not a cut and dried one'.[21]
[21] ts 17, 31 October 2023.
The representative from the Public Advocate noted that YG had made a commitment to fund HA's care and YG responded that he knew that. The representative asked whether YG was reneging on that comment. And YG said 'you're going to make orders that are hardline. I'm not reneging on what I said there. We will sell the property if we have to, no doubt. But if the children want to contribute to their mother's wellbeing, fine'.
These comments go to the heart of the issue, that decisions were made to liquidate almost all of the available assets of HA and YG to purchase rural land which would not leave any funds available if it was needed for HA's care.
The decision to invest their significant funds in rural land, in circumstances where YG and HA are both in their 70s and HA's emerging cognitive impairment was diagnosed in April 2022. Their business was sold four months later in August 2022 and the First Rural Property was purchased in August 2022 in YG's sole name.
Because HA's and YG's finances are joint, any decision to liquidate part of the rural land will impact on YG. I am not satisfied that YG will be able to make a decision that is solely in HA's best interests. The very real concern around having funds available to pay for HA's care has been raised at various times, including in the meeting with the Public Trustee. It was raised again in the hearing by YG when he stated that the children could contribute to her care because she is their mother and '… because we might keep the property'. It is therefore a live issue that YG may not prioritise HA's care by selling the rural land when necessary.
It is also of concern that YG does not seem to understand HA's limitations and the likely progression of her illness which makes it likely that he may not be able to recognise when she will require a change in accommodation. I am therefore not satisfied that YG is able to separate his interests in wanting to continue to own the rural land with HA's interests, which may require selling a significant portion of the rural land in order to fund appropriate care for her. It is also clear that HA wants to stay on the rural land with YG, so YG would have to act against HA's wishes if a decision like that was to be made.
Appointment of guardian
I will now turn to YG's suitability to act as HA's guardian. In relation to HA's medical treatment, it is clear on the evidence before the Tribunal that YG has not been proactive and has not pressed for HA to be assessed at the Memory Clinic. YG does not seem to understand the benefit of having a diagnosis for dementia in terms of the increased services and the priority that a diagnosis will afford. In addition, HA is not being treated for dementia and she is currently on anti-anxiety medication and pain medication for her hip, but is not receiving any dementia-specific treatment, medication or care.
YG said in the hearing that he did not advise the orthopaedic surgeon about the hearing of 26 October 2023, which is relevant to HA's ability to give informed consent to the hip surgery that is scheduled for 14 November 2023.
In relation to HA's medical issues, the evidence shows, and I find, that YG has not been adequately sharing information with HA's children. The evidence from the family is that their contact with HA has been limited since 21 July 2023 and almost non-existent since the application was filed on 4 September 2023. The conflict in the family was evident at the hearing and I am not satisfied that YG would facilitate contact between HA and her children if he was appointed as her guardian.
In my view a guardian appointed for HA needs to be able to communicate effectively with HA's family members. This is crucial in relation to her significant personal decisions which now need to be made in relation to her accommodation and services and also in relation to her medical treatment in the future. I am not satisfied that YG will be able to effectively communicate with HA's family and thus to act as guardian.
I am also not satisfied that YG will be able to make decisions in HA's best interests if those decisions are contrary to HA's own views about what should be done specifically in relation to services. YG does not believe that HA needs services currently and he has also communicated to the representative of the Public Advocate that a safety plan is not needed. YG stated at the hearing that he would not go to Centrelink to discuss the ACAT assessment or the provision of services and HA agreed that they would never go to Centrelink.
YG made comments at the hearing that revealed an inadequate appreciation of HA's present level of impairment. YG was asked if his view would change if HA was diagnosed with dementia. YG said that it is only a diagnosis and that her ability to do things is not recorded. He said he would take the diagnosis on board and act on, if necessary, but 'dementia is everywhere'. YG's comments in relation to accessing and paying for services demonstrate a failure to appreciate what decisions may need to be made, from where assistance might be found, the cost associated and what planning needs to occur now.
In addition, there is a clear conflict between YG's interests in wanting to remain on the rural land and move into the Second Rural Property at the end of December 2023, and HA's interests if part of the rural land needs to be sold to fund her care. It will be difficult for YG to separate out what is in HA's best interests to ensure that she has appropriate care, with his own personal interests.
The fact is that it is necessary right now that decisions be made in relation to HA's diagnosis, treatment, accommodation, services and how they will be paid for.
Conclusion of appointments
Section 44(5) of the GA Act provides that the Public Advocate should not be appointed unless there is no other person who is willing and suitable to act.
I am satisfied that there is no person who is suitable and willing to act. The Public Advocate will be appointed as HA's limited guardian.
In relation to administration, I am satisfied that it is in the best interests of HA for the Public Trustee to be appointed as her plenary administrator and that there is no one willing and suitable to act. I note that HA has a not insignificant estate involving some complexity. It is in her best interests that the administrator appointed have the knowledge and ability to make the necessary financial decisions to manage her estate to ensure that her care needs are provided for.
In my opinion, the appointment of the Public Advocate and the Public Trustee will result in the appointment of a guardian and administrator with the ability and the appropriate level of expertise to make the necessary decisions for HA that she requires in the foreseeable future.
Length of orders
Given the ongoing nature of HA's health challenges, I will make this order reviewable in two years' time because there does appear on the evidence to be a continuing need for HA to have a substitute decisionmaker. When the orders are reviewed in two years' time, the Tribunal can then examine whether it is appropriate for some or all of the roles and functions to come back to the family.
If anything changes in the meantime, anyone can apply to the Tribunal for a review or to change or amend the orders. But the orders that I make now will remain in force until that review hearing actually occurs.
Orders
1.Time for service of the notice of hearing is shortened to less than 14 days to all parties pursuant to s 41(3)(a) of the Guardianship and Administration Act 1990 (WA), as the Tribunal has determined that exceptional circumstances exist.
The Tribunal declares that the represented person, [HA], is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
2.The order made on 6 September 2023 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
3.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
4.The enduring power of attorney dated 30 November 2016 by which the presented person appointed [YG] to be their attorney, is revoked.
5.The administration order is to be reviewed by 31 October 2025.
Guardianship
6.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)to determine the services to which the represented person should have access.
7.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.
8.The guardianship order is to be reviewed by 31 October 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
27 DECEMBER 2023
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