HL and HS
[2012] WASAT 118
•5 JUNE 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: HL and HS [2012] WASAT 118
MEMBER: MR M ALLEN (SENIOR MEMBER)
MS S GILLETT (MEMBER)
MS D DEAN (SENIOR SESSIONAL MEMBER)
HEARD: 30 JANUARY 2011
DELIVERED : 5 JUNE 2012
FILE NO/S: GAA 3558 of 2011
GAA 3559 of 2011
GAA 3560 of 2011
BETWEEN: HL
Applicant
AND
HS
Represented Person
Catchwords:
Guardianship and administration - Application for guardianship and administration orders Application for declaration regarding validity of enduring power of guardianship - Need for administration order having regard to existence of enduring power of attorney - Formal deficiencies in enduring power of guardianship - Conflict between children of proposed represented person - Wishes of proposed represented person Directions to be given to limited guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 43, s 43(1)(b), s 64, s 104, s 104(1)(b)(i), s 104(2), s 110E, s 110J, s 110K, s 110L, s 110M, s 110N, s 110ZJ
Result:
Application for administration order dismissed
Declaration that enduring powers of guardianship invalid
Limited guardians appointed
Direction given to one of the limited guardians
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented Person : Ms L Hudson
Solicitors:
Applicant: N/A
Represented Person : Lynn Hudson Barrister & Solicitor
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
A social worker for a nursing home in which the proposed represented person, HS, an elderly widow diagnosed with dementia, resided applied for guardianship and administration orders and for orders concerning the validity of an enduring power of guardianship. Considerable conflict between HS's two daughters, AM and CH, was affecting the staff of the nursing home's ability to provide care for her and led to concerns as to whether HS's best interests were being served.
The Tribunal found that HS was a person for whom both guardianship and administration orders could be made. However, the Tribunal concluded that HS's needs in relation to the management of her financial affairs could be met in a less formal manner pursuant to an enduring power of attorney made in favour of AM some years ago. There was no reason to conclude that HS's affairs would be managed other than in her best interests pursuant to that authority.
The Tribunal considered whether an enduring power of guardianship (EPG) made in October 2011 in favour of AM would provide a less restrictive means for the making of decisions regarding HS's personal affairs. That EPG replaced an earlier EPG made in August 2011 which also appointed AM as the enduring guardian.
The Tribunal found that both EPGs suffered from formal deficiencies and, further, that there were doubts concerning HS's capacity to understand the nature of the documents. The Tribunal declared that both of the EPGs were invalid and could not be relied upon as a less restrictive alternative to a guardianship order.
However, the EPGs were taken as an expression of HS's wishes in relation to who made decisions on her behalf, and the Tribunal appointed AM as limited guardian for treatment decision-making. The Tribunal considered, however, that AM could not be relied upon to make decisions regarding contact that HS should have with old family friends, in view of the restrictive approach that AM had taken in the past. The Public Advocate was appointed as limited guardian to make such decisions.
The Tribunal considered that it would be in accordance with HS's wishes and in her best interests for CH, who lives in England, to be provided with information regarding HS's physical and mental health and general wellbeing. The Tribunal directed AM to authorise the nursing home to provide such information to CH, and that, if HS was hospitalised and away from the nursing home, then AM should herself provide CH with such information.
Introduction
These proceedings concern HS, an elderly widow who was born in September 1923. The proceedings involve three applications to the Tribunal under the Guardianship and Administration Act 1990 (WA) (GA Act), all of which were made by HL, who is a senior social worker at the nursing home where HS lives. The applications are for guardianship and administration orders to be made in respect of HS, and for orders relating to an enduring power of guardianship (EPG) made by HS on 14 August 2011.
The applications were heard by the Tribunal on 30 January 2012. At that hearing, the Tribunal was presented with another EPG, made by HS on 28 October 2011, and the hearing proceeded on the basis that both EPGs should be considered by the Tribunal. In these reasons, the earlier of the EPGs is referred to as the first EPG and the latter is referred to as the second EPG.
Background
Many of the facts involved in the applications were not in dispute and can be conveniently summarised as follows.
HS and her late husband have two daughters, CH born in 1944, and AM born in 1953.
In approximately 1994, HS and her husband came to live in Australia from England and, for much of the time up until the death of HS's husband in April 2011, the couple lived in their own home next door to the house in which AM and her husband and children lived. CH continued to live in England.
In May 2011, following the death of her husband, HS was admitted to the nursing home, which is low care dementiaspecific accommodation. She appears to have settled in well to that accommodation, but staff at the nursing home soon became aware of longstanding conflict between CH and AM, resulting in contradictory information being presented to the staff. The obvious lack of communication and distrust between CH and AM was such that the staff found it difficult to determine who should be the appropriate decisionmaker in relation to HS.
Over the course of a few months in mid2011, the staff established that HS had made an enduring power of attorney (EPA) on 5 July 2007, by which AM had been appointed as HS's attorney. As a result of ongoing difficulties in decisionmaking, the staff at the nursing home held a meeting with AM on 23 August 2011 to discuss these difficulties. Although the EPA was referred to in the course of those discussions, no mention was made of the existence of the first EPG, a copy of which was first provided to the nursing home by AM on 29 August 2011.
The staff at the nursing home were concerned about the validity of the first EPG, both as to whether it had been validly executed and because it had been witnessed by two persons who were employees of the nursing home. The staff continued to be concerned by the conflicting information they were receiving from CH and AM, and about the decisionmaking that was occurring in relation to HS, which led to making the applications to the Tribunal.
The hearing
The Tribunal's hearing to determine the applications was attended by HS and Ms Hudson, her legal representative, AM and members of her family, HL and KB (who is the manager of the nursing home), and a representative of the Public Advocate who had previously been asked to make certain inquiries into HS's circumstances and to report thereon to the Tribunal. CH and her husband participated in the hearing by telephone from their home in England.
Statutory framework
When dealing with proceedings of this kind the Tribunal is required, by s 4(2) of the GA Act, to have as its primary concern the best interests of HS. In addition, the Tribunal is required to observe the other principles set out in s 4 of the GA Act, namely, that HS is to be presumed capable of looking after her own health and safety, making reasonable judgments in respect of matters relating to her person and to her estate, and managing her own affairs until the contrary is proven to the Tribunal's satisfaction. Further, guardianship or administration orders should not be made if the needs of HS could be met by other means less restrictive of HS's freedom of decision and action, a plenary guardian should not be appointed if the appointment of a limited guardian would be sufficient to meet HS's needs, and limited guardianship or administration orders should impose the least restrictions possible in the circumstances on HS's freedom of decision and action.
Finally, the Tribunal must, as far as possible, seek to ascertain the views and wishes of HS as expressed by her, in whatever manner, at the time or as gathered from HS's previous actions.
Section 43 of the GA Act relevantly provides that a guardianship order can be made in respect of HS if the Tribunal is satisfied that she has attained the age of 18 years (as is obviously the case), is:
i)incapable of looking after her own health and safety;
ii)unable to make reasonable judgments in respect of matters relating to her person; or
iii)in need of oversight care or control in the interests of her own health and safety or for the protection of others,
and is in need of a guardian.
Section 64 of the GA Act relevantly provides that an administration order can be made in respect of HS if the Tribunal is satisfied that she is:
a)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
b)in need of an administrator of her estate.
Section 3 of the GA Act defines a mental disability to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
Part 9A of the GA Act deals with the making and operation of EPGs and the Tribunal's jurisdiction in relation thereto. Section 110J provides that a person who, in the opinion of the Tribunal, has a proper interest in the matter may apply to the Tribunal for a decision under Div 4 of Pt 9A. Section 110K, which is the section referred to in the application to the Tribunal, provides that the Tribunal may declare that an EPG is valid or invalid, but power is also conferred on the Tribunal to make declarations about whether the appointor under an EPG is unable to make reasonable judgments in respect of matters relating to his or her person (s 110L), to give directions as to matters connected with the exercise of, or the construction of the terms of, an EPG (s 110M), and the revocation of an EPG or the appointment of persons who are appointed as joint enduring guardians, or revoking or varying any of the terms of an EPG (s 110N).
HS's decisionmaking capacity
Before dealing with the individual applications before the Tribunal, it is convenient to set out the information that was available to the Tribunal regarding HS's capacity to make decisions or manage her personal or financial affairs.
Dr H, a specialist geriatrician, provided a report dated 25 January 2012, which noted that he had not seen HS since 2006, but that she was known to his Registrar until June 2011. Dr H signified that he thought HS was capable of making reasonable decisions about her financial affairs as at June 2011, but was not sure about her capacity in relation to other areas of decisionmaking. Dr H's report was accompanied by his reports made to HS's then general practitioner in July 2010, February 2011 and June 2011.
The July 2010 report indicated that HS's mini mental state examination (MMSE) score at that time was 26/30, being a reduction from the 29/30 that she had scored in January 2010. The report referred to HS suffering from mild to moderate Alzheimers disease, noting a CAMCOG score of 64/105 'consistent with Alzheimers disease September 2009', with MRI demonstrating 'generalised cerebral atrophy and small vessel ischemic changes'. The February 2011 report referred to HS's MMSE score being the same as six months previously and that her husband prompted her for her activities of daily living due to ongoing shortterm memory loss. The report noted that HS's husband needed to keep an eye on her when they were in a shopping centre, as HS may become disoriented easily. It was noted that, on examination, HS was poorly oriented.
The June 2011 report noted that HS had been seen for an assessment of her capacity to change her Will, following the death of her husband and the move to residential care. Her MMSE score was stable but she had obvious shortterm memory loss. The report refers to HS understanding that making a Will has legal implications, and that she was aware that she has memory problems and that her daughter had an EPA. HS was referred to another clinician for a second opinion because, although she explained that she wanted to change her Will, she was 'vague with the details'.
Dr S, a psychiatrist, provided a report to the Tribunal dated 15 November 2011, having last seen HS on 10 November 2011 when he witnessed her Will, after seeing her over a period of five months in order to assess her testamentary capacity. He thought HS was capable of making reasonable decisions about personal health care and her living situation, but was not sure about her capacity to make decisions about financial affairs. He noted that she had managed in circumstances where her husband had managed everything when he was alive, and HS had been happy to pass management of her financial affairs to AM. Dr S advised that HS had scored an MMSE of 22/30, where a score of 23 indicates cognitive impairment. He thought that HS showed fairly mild cognitive deficits and had the necessary testamentary capacity, although she could not identify the value of her assets. Dr S thought that the existing EPA may well be sufficient for the management of HS's affairs.
Dr M, a general practitioner, provided a report to the Tribunal dated 14 November 2011, noting that he had known HS since August 2011 and that he had recognised her mild dementia at their first meeting. Dr M was unsure whether HS had the capacity to make reasonable decisions about any matters at that time. He noted that she has mild dementia and that, although she scored reasonably well on an MMSE (24/30) and presented as quite plausible, 'nonetheless she is very accommodating/suggestible and would be easily manipulated/advised. Hence decisions would not necessarily be her own'.
In a comprehensive report provided by HL to the Tribunal in her capacity as a senior social worker for the nursing home, HL noted that HS was a person who enjoyed the company of others, could converse appropriately and had good social skills, but that she has poor shortterm memory. She found it difficult to recall recent specific events, both social and business, and did not always recall regular telephone calls from CH. She had been unable to understand the concept of an EPA or EPG, even when put to her in simple terms, and was unable to recall that she had made a Will. She had, at times, maintained that noone was needed to make decisions for her because she made her own decisions, but at other times, had always made it clear that she had handed over all her affairs to AM.
The staff of the nursing home considered that HS was, by the time of the hearing of the applications, lacking the capacity to donate or revoke EPAs or EPGs and was unable to make financial and lifestyle decisions. They considered that the indication of testamentary capacity as determined by Dr S did not demonstrate that HS had capacity in other spheres.
The Public Advocate provided a report to the Tribunal concerning discussions it had held with HS and with other parties. HS had a vague understanding of the nature of the proceedings in the Tribunal, but seemed to believe that they had been initiated by CH. She was not able to explain how her bills were being paid, assuming that AM dealt with all such matters. HS emphasised on several occasions that she wanted AM to be the person responsible for managing her financial and personal affairs. HS informed the representative of the Public Advocate that she thought her home had been transferred to AM, and she appeared to be under the impression that CH and her husband had travelled to Perth at the time of her husband's death (when neither of those things were the case). She could not remember signing the first EPG (the Public Advocate was, at the time of the interview, unaware of the existence of the second EPG). Overall, HS had noticeable problems with her shortterm memory.
Application for administration order
It is clear from the above, and the Tribunal finds, that HS suffers from a mental disability, being dementia with its associated cognitive impairment.
The Tribunal is satisfied that, as a consequence of that mental disability, HS is unable to make reasonable judgments in respect of all or part of her estate. Our reasons for this conclusion may be summarised as follows:
a)It is apparent that HS has suffered from memory problems and lack of orientation in all her daytoday affairs for some years, and that she was significantly dependent on her husband prior to his death, and on AM subsequently for the management of any financial matters.
b)Although assessed as having testamentary capacity in late 2011 by Dr S, it is apparent that, prior to that time and subsequently, HS has had little or no knowledge about the value of her assets.
c)HS appears, incorrectly, to believe that she has transferred her family home to AM.
We did not understand any of the parties to hold a different view about HS's current abilities.
The next question that must be addressed is whether HS has a need for an administrator in the sense that there are decisions or actions to be taken in relation to her estate that will need to be undertaken by somebody other than HS. HS's estate now appears to consist primarily of a house in her name (which is presently unoccupied and in respect of which decisions will need to be made regarding its sale or other utilisation during her lifetime) and a reasonably substantial amount of money in bank accounts. She appears to have pension entitlements from both Australia and the United Kingdom. We conclude that HS needs a person with appropriate authority to manage all of those affairs.
Less restrictive alternative to administration order
The question then arises as to whether HS's needs can be met in a less restrictive manner than by the making of an administration order and, in that context, the existence of the EPA becomes relevant.
As noted above, the EPA was executed by HS on 5 July 2007. It is in a form consistent with that required by s 104 of the GA Act. In particular, it is an EPA of the type referred to in s 104(1)(b)(i). HS's signing of the EPA was witnessed by her general practitioner at the time and another medical practitioner from the same practice. The only point that has been raised by any of the parties regarding the validity of this EPA is that the part of the document by which AM signified her acceptance of the appointment as attorney was not signed by AM until 6 February 2008.
Section 104(2) of the GA Act relevantly provides that an instrument is not effective to create an EPA unless the EPA has endorsed on it, or annexed to it, a statement of acceptance by the donee of the power. The provision does not specify when that acceptance must be signed by the donee, but it is apparent that the EPA does not come into effect until the donee has accepted the appointment. In our view, the passage of some time prior to acceptance by the donee will not prevent an instrument coming into effect as an EPA when it is ultimately accepted. We see no reason to doubt the validity of the EPA, although it is the case that the Tribunal has no power to declare an EPA to be valid or invalid unlike the position in relation to an EPG, reference to which will be made below in these reasons.
Although, as we have noted above, HS has suffered from memory problems for a number of years, we have no reason to conclude that the presumption of her capacity to make the EPA in 2007 should be questioned. Dr S considered HS to be capable of executing an EPA at the time of his report in November 2011, although Dr H and Dr McG were unsure about her capacity at that time. We note that, in Dr H's report to HS's general practitioner in July 2010, there is a reference to an MMSE score of 29/30 in February 2007, and to a similar score in January 2010. Such a score would not indicate significant cognitive impairment, notwithstanding HS's memory problems.
The EPA is not expressed to limit or restrict the authority of the donee and we see no reason to conclude that HS's financial affairs cannot be adequately dealt with by AM under the EPA. CH raised with staff of the nursing home, and again at the hearing, that she was concerned about the management of HS's financial affairs by AM. When pressed by the Tribunal to articulate the basis of these concerns, CH was able to say only that she had a 'gut feeling' about how her mother's affairs were being managed and that she considered AM to be 'immature'.
Nothing has been placed before us to indicate that decisions made by AM in relation to her mother's financial affairs have in any way been contrary to HS's best interests, and it seems that AM was able to deal with HS's jointlyowned interests with her husband upon his death. It is clear that HS has consistently asserted that she has trust in AM and wishes her to manage her financial affairs. Our conclusion is that HS has no need for an administrator because the management of her financial affairs can be satisfactorily achieved pursuant to the EPA and, accordingly, we will dismiss the application for an administration order.
Application for guardianship order
In terms of the requirements of s 43(1)(b) of the GA Act, we have concluded that HS is a person who is incapable of looking after her own health, is unable to make reasonable judgments in respect of matters relating to her person, and is in need of oversight care or control in the interests of her own health and safety. We arrived at that conclusion for the following reasons:
a)HS has been in need of close personal supervision for some years. We note Dr H's report of February 2011 that her husband prompted her for ADLs because of her shortterm memory problems and needed to keep an eye on her, as she became easily disoriented.
b)It is clear from HL's report that, at the nursing home, HS needs directing around the site and, although willing to comply with most staff requests, at times, is resistant to care (such as showering and changing clothes). It is also apparent from that report that HS is heavily dependent upon AM and finds it difficult to recall recent specific events. The nursing home staff also agree with the view of both AM and CH that HS is now vulnerable and suggestible and may lack initiative because of a history of dependence on others and cognitive loss.
c)At the hearing, HS exhibited considerable confusion regarding the nature of the proceedings and demonstrated her poor memory in a number of ways, the most striking of which was the inability to remember who her legal representative was, despite, we were told, having met that person on three or four occasions within the previous few months. In addition, HS was unable to recall, or at least state, where she now lives. These matters were, we considered, significant, even allowing for the unfamiliarity of the situation and anxiety exhibited by HS at the hearing.
As to whether or not HS has a need for a guardian, in the sense of there being a need for a person to have authority to make certain types of decisions on her behalf because of her inability to make such decisions for herself, we have concluded that there is a need in relation to medical treatment decisions, contact with other persons and the provision of information about her health and general wellbeing to CH.
As regards medical treatment, it is apparent from the reports of Dr H to HS's general practitioner that HS has a number of current and past medical conditions apart from her dementia, and receives a number of regular medications. She is also said to be at risk of having falls, with the consequential risks. All decisions relating to HS's ongoing medical care and treatment will need to be made by a substitute decisionmaker.
In relation to contact with other people, one of HL's stated reasons for making the application was that issues had arisen in relation to outings taken by HS in the company of persons other than members of AM's family. In particular, AM had instructed the care provider that HS was not to have outings without AM's consent. The application lodged by HL refers to AM requesting staff of the nursing home that HS should not be taken out by friends until after the finalisation of her husband's deceased estate, because she was concerned that CH had 'enlisted friends' who would take HS out to sign documents to which she could not consent whilst in a vulnerable state. At the hearing, AM told us that she considered the people concerned to have not been friends of her parents but were, rather, friends of CH. In relation to this matter, at the hearing, HS was able to inform us in clear terms that the people concerned were, indeed, old friends of her and her husband.
We were told at the hearing that the issue of contact with others had appeared to resolve itself prior to the hearing. However, after the hearing, we were advised by HL that issues had again arisen in relation to conflict between AM and the other people who had taken HS for an outing. We did not consider it necessary to obtain the views of all the parties about this later incident because it is not necessary to resolve any factual differences that there may be concerning the events in question. Rather, this new information tended only to confirm to us that the issue of when and on what terms HS was able to leave the care facility with people other than her extended family remained a live issue that would require decisions to be made on her behalf in future.
In relation to the issue of the provision of information to CH about her mother's ongoing welfare, one of the reasons advanced by HL for the making of the application was that issues had arisen between AM, CH and staff of the nursing home about what information could be given to CH. Issues had also arisen prior to HS moving into the care facility when AM had instructed the hospital in which her father was, shortly prior to his death, that no information was to be given about his welfare to CH. The nursing home staff had offered AM an email address for CH in England that could be used for AM to convey information to her sister about HS, but AM had declined to utilise this means of communication, because she thought it was inappropriate for personal information to be provided via a third party's email. CH told us at the hearing that she did not have an email facility and relied upon a friend for that purpose.
At the hearing, AM told us that she saw no reason why she should have to provide information to CH, because CH could speak directly to HS and obtain information from her in their regular telephone calls. We observe that, given our view and that of all of the parties concerning HS's very poor memory and limited understanding of her circumstances, this is not a particularly helpful suggestion by AM, and reinforced the view we formed that personal communication between AM and CH is unlikely to be a meaningful way of conveying information about HS to CH in the future. Significantly, HS told us that she had no objection to any information being provided to CH about her health and circumstances, but she also emphasised that she saw no reason why CH would need to be consulted before decisions were made about her personal affairs.
Less restrictive alternative to guardianship order
Having determined HS's needs as above, the next question must be whether those needs can be met in a less formal manner, short of the making of a guardianship order. In that context, the two EPGs must be considered, bearing in mind that one of the applications made by HL was for a declaration of the validity of the first EPG.
As an initial point, we consider that HL, as a representative of the nursing home that is responsible for HS's daily care, has a proper interest in having the issue of the validity of the EPGs resolved and can, therefore, be an applicant for orders in relation to the EPGs under s 110J of the GA Act. Some person must have authority to make decisions on behalf of HS, and it is appropriate and in HS's best interests that the nursing home have certainty about who that person is and what is the nature and extent of the authority.
The hearing proceeded on the basis that the parties assumed that the first EPG was not valid because it had not been properly executed or, alternatively, it had been revoked by the making of the second EPG.
It was not in dispute that the second EPG had been made because of those concerns regarding the possible invalidity of the first EPG. HS was not able to throw any light on the circumstances of the making of either EPG, but we understood AM to say, in effect, that she had assisted HS to make the second EPG and that the purpose of it was to replace the earlier one. That would seem to indicate that it was, at least, AM's intention that the second EPG would replace the first EPG, but we are in considerable doubt as to whether or not HS was capable of forming that intention or understood that to be the effect of the second document.
First EPG
It follows that, in light of such uncertainty, it would be unsafe to conclude that there was a clear intention on the part of HS to revoke the earlier EPG. In any event, we are satisfied that the first EPG was not validly made in accordance with Pt 9A of the GA Act. Apart from any issue relating to HS's mental capacity to make such an instrument, we consider the first EPG to be defective for the following reasons:
a)A substitute enduring guardian is appointed (AM's son) to be HS's enduring guardian in the following circumstances 'Overseas, ill health, hospitalisation'. This statement may have been intended to apply to the enduring guardian (AM) being unavailable for those specified reasons, but we consider that would be an unsafe conclusion in the absence of clear evidence to that effect.
b)On page 2 of the form, the initials of HS and the two witnesses are shown between a paragraph authorising the enduring guardian to perform all of the functions of an enduring guardian, including making all decisions about health care and lifestyle, and a paragraph authorising the enduring guardian to perform only the functions that are set out in that second paragraph. Neither of the paragraphs is expressly deleted and none of the specified functions are expressly included or excluded. A short line has been placed alongside the heading of the second paragraph, but it is by no means clear whether the inclusion of that line was intended to indicate that the whole of the paragraph was to be excluded. Accordingly, we are unable to conclude whether AM, as enduring guardian, was authorised to perform all the functions of an enduring guardian or only those specified in the second paragraph.
c)Neither HS nor the two witnesses signed the EPG at the execution section on page 3 of the form, although their initials appear on one paragraph (no 6) that appears to be deleted, but not on another paragraph (no 5) which appears also to be intended to be deleted (although that is not certain).
d)No evidence was provided to us as to the ages or occupations of the two witnesses and whether or not one or both of them are qualified to witness such documents as required by s 110E of the GA Act.
We conclude that the above deficiencies are such that the instrument should not be regarded as one that complies with Pt 9A of the GA Act and that we should, therefore, declare, under s 110K, that the EPG dated 14 August 2011 is not valid.
Second EPG
The question then arises as to whether the second EPG is valid.
We were told by AM that the document was prepared by her and had been executed by HS at the nursing home with AM and the two witnesses present at that time. One of the witnesses is shown as having the occupation of medical practitioner, but no information is available concerning the other witness' occupation or age. Both witnesses were said to be friends of AM, who said the witness who is a medical practitioner had explained the contents of the document to HS prior to the signing.
Apart from any issue relating to HS's capacity to make an EPG at that time, the following observations can be made about the second EPG:
a)On page 1, two paragraphs are deleted by a line being struck through them and HS and the two witnesses initialling the deletion. However, on page 2, two paragraphs have crosses placed alongside them and another paragraph has lines drawn through it, perhaps to signify their deletion, but none of the deletions are initialled. The same applies to two paragraphs on page 3.
b)On page 1, a substitute enduring guardian is appointed, who is said to be '… my enduring guardian in the following circumstances: if I am overseas for three months or longer'. On its face, this purports to apply if it is HS who is overseas for three months or longer, whereas AM said at the hearing that she had added the words in her own handwriting and that the 'I' who is referred to was intended to be herself. If those words were inserted into the second EPG at the time of its execution, then it is apparent that neither HS, AM nor the two witnesses noticed the inaccuracy.
c)On page 3, the printed form contains the following: 'I have made an advance health directive. If yes, tick or cross the box' with a box appearing at that point in the form. The second EPG has a cross in that box, signifying that HS has made an advance health directive (ADH), presumably in accordance with the provisions of Pt 9B of the GA Act. At the hearing, we drew attention to this statement in the form. Neither AM nor HS's legal representative could throw any light on when or why the cross had been placed in the form, and AM said that she had never noticed it before, even though she had prepared the second EPG, and she said that HS had not made an ADH.
Whether or not HS has made an ADH is a matter of considerable significance because, by virtue of s 110ZJ of the GA Act, subject to some exceptions that are not relevant in this case, an ADH takes priority over an enduring guardian or a guardian appointed under the GA Act for the purposes of making treatment decisions for a person such as HS. If the second EPG is correct on its face, then HS appears to have made an ADH, but we have no information about it. If the second EPG is not correct in this regard, then we find it difficult to see how we can conclude that HS understood the full nature of the document that she was signing, even if, as has been noted above, it was explained to her at the time. On AM's evidence, it would appear that HS, AM and the two witnesses did not fully understand the wording of the document in relation to the period when the substitute enduring guardian would act, and in relation to the existence of an ADH. Bearing in mind the evidence given by HL, AM and CH that HS is a vulnerable person who is susceptible to suggestion by others, an opinion that has been expressly supported by Dr McG in his report, we are not willing to conclude that, at the time of execution of the second EPG, HS understood the nature and effect of the formal document that she was signing, and the nature and extent of the powers she was entrusting to her enduring guardian or substitute guardian. At the very least, HS signed a document that was contradictory in its terms or did not state the true state of affairs in at least two respects. We conclude, therefore, that we should declare the second EPG to be invalid.
HS's wishes
We consider, however, that the two EPGs, plus the various statements made by HS to HL and others at the nursing home and to the Public Advocate's representative, constitute a meaningful expression of HS's wishes to the effect that she wants AM to be the person who makes decisions on her behalf. HS said as much at the hearing.
Who should be appointed guardian for HS?
Having concluded that the two EPGs are not valid, the need that we have identified that HS has in relation to personal decisionmaking can be met only by the making of a guardianship order conferring powers in relation to treatment decisions, contact with non-family members and the provision of information to CH. The question arises then as to who should be appointed guardian to perform those functions.
No evidence was presented to us to indicate that any treatment decisions that have already been made by AM have not been in HS's best interests. It is apparent, and we accept, that AM has been very heavily involved in all matters concerning her parents in recent years and that she has her mother's best interests at heart. We consider, also, that the same can be said for CH, but no question arises as to her possible appointment as guardian. We consider that AM should be appointed to make treatment decisions for HS, but the position is not as clear in relation to the other functions that we have identified.
In relation to decisions regarding contact with nonfamily members, we have noted above that issues have arisen in the relatively recent past. We accept HL's evidence that HS has enjoyed the company of, and outings with, the old friends of HS and her husband, and it was apparent from AM's evidence at the hearing that she has adopted a somewhat restrictive approach towards the need for her approval for such outings, and that she had suspicions regarding the motives of the friends concerned.
We consider that it is important and in HS's best interests that there be as few restrictions as possible imposed on her ability to enjoy outings with old friends whilst she is able to do so. We are not convinced that AM will have a sufficiently flexible approach in this regard and we are not confident that decisionmaking of this kind should be left in her hands. Regrettably, we consider that the Public Advocate should be appointed as HS's limited guardian to make decisions regarding contact with persons who are not part of HS's family.
In relation to providing information regarding HS's welfare to CH, we have observed above that AM's approach regarding CH getting information directly from her mother has not been terribly helpful. We consider that AM was entitled to be cautious about passing information to CH via the email of a third party, but it is clear that the two sisters find it very difficult to communicate directly with each other, and that AM has limited the information that CH was able to receive about their father prior to his death, and about HS more recently. HS has made it clear that she has no objection to CH being provided with information, but we are not confident that we should leave it up to AM to provide that information.
Rather, we conclude that we should direct AM, in her capacity as HS's limited guardian, to authorise the nursing home to provide information to CH about HS and to personally inform CH if HS is hospitalised or otherwise away from the nursing home for treatment. We appreciate that, if the latter direction is operative, it will require AM to communicate directly with CH. For that limited purpose, we see no reason why AM should not be required to take on that responsibility.
Length of order
We consider that the orders should be reviewed by the Tribunal after 12 months. That period should allow the contact and communication issues to be dealt with and any residual issues related to them to be identified. Any party can, of course, apply to the Tribunal for an earlier review should there be any change of circumstances or other reason to conduct an earlier review.
Orders
For the reasons set out above we make the following orders:
1.The application for an administration order is dismissed.
2.The Tribunal declares that the enduring powers of guardianship made by HS on 14 August 2011 and 28 October 2011 are invalid.
3.AM is appointed limited guardian of HS with the function and power to make, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), treatment decisions for HS.
4.The Public Advocate is appointed limited guardian of HS with the function and power to determine the extent and terms upon which HS should have contact with persons who are not members of HS's extended family.
5.AM is directed, in her capacity of limited guardian, as follows:
(i)to authorise the nursing home to provide to CH information in relation to HS's physical and mental health and general wellbeing upon reasonable request from CH or at any other time that the nursing home considers it appropriate to do so; and
(ii)if HS is absent from the nursing home for medical or other treatment for more than 24 hours, then AM is to communicate personally to CH information regarding HS's mental or physical health and general wellbeing related to that absence.
6.The Tribunal approves delegation by the Public Advocate of her function as limited guardian to an officer or employee employed in the Office of the Public Advocate.
7.Order to be reviewed by 5 June 2013.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M ALLEN, SENIOR MEMBER
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