IG - [2020] WASAT 164

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   IG [2020] WASAT 164
MEMBER:   MS F CHILD, MEMBER
HEARD:   1 OCTOBER 2020
DELIVERED          :   1 OCTOBER 2020
FILE NO/S:   GAA 3387 of 2020

IG
Represented Person

Catchwords:

Guardianship and administration - Applications for the appointment of guardian and administrator - Represented person in hospital and experiencing cognitive impairment - Conflicting enduring powers of attorney executed within weeks of the other - Need for decisions about residential care and services - Need for certainty of authority for financial decisions - Enduring powers of attorney revoked - Enduring power of guardianship not operating in best interests - Enduring power of guardianship revoked - Appointment of Public Trustee and Public Advocate supported by attorneys

Legislation:

Guardianship and Adminstration Act 1990 (WA), s 51, s 64(1)(a), s 65, s 97(1), s 110ZD

Result:

EPA revoked
EPG revoked
Public Advocate appointed guardian
Public Trustee appointed plenary administrator

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The nieces of IG (JA and VA), and her nephew (RA), (the applicants) applied to the Tribunal for orders appointing a guardian and an administrator of her estate under the Guardianship and Administration Act (1990) (WA) (GA Act).
At the time of the application to the Tribunal, IG was a patient in a hospital having been admitted following a fall while in another hospital for unrelated treatment which resulted in a fractured neck of femur. IG was transferred to a major hospital to undergo medical treatment and at the time of the hearing remained in hospital.
Because of the matters raised, the Tribunal referred the application to the Public Advocate for investigation pursuant to s 97(1) of the GA Act.
An order pursuant to s 65 of the GA Act was made on 4 September 2020, which appointed the Public Trustee to exercise the functions of a plenary administrator to protect the estate, pending the determination of the question of whether IG was a person for whom an administration order may be made.
Prior to the hearing, other case management orders were also made including the filing of two copies of enduring powers of attorney (EPAs) made by IG, one of which had reportedly been made by IG in favour of JA and RA (jointly) and one which had been made in favour of GH, a friend of IG.
In the course of the hearing of that application on 1 October 2020 , the applicants made an oral application for intervention in an enduring power of guardianship (EPG) made by IG by which she had appointed GH as her enduring guardian.

Evidence and material before the Tribunal

In addition to the application filed on 27 August 2020 following evidence and material is before the Tribunal:
A report from Dr MK, a hospital doctor dated 8 September 2020, reports that IG had a Mini Mental State Examination (MMSE) score of 12/30 on 26 August 2020. It was reported that this score was likely not her baseline since IG was in hospital with delirium following the post neck of femur fracture only a week prior. The report notes that IG's diagnosis was unclear but went on to say 'the history is suggestive of an underlying cognitive impairment'; copies of cognitive assessments were submitted by the treating hospital; a Montréal cognitive assessment (MoCA) dated 30 January 2019 with a score of 24 /30; a MoCA with a score of 17/30 dated 26 August 2020; and an MMSE dated 30 September 2020 with a score of 18/30.
Due to her medical condition IG was reported to have fluctuating cognition with superimposed delirium. Dr MK reports that IG's capacity was unable to be assessed due to her medical condition and delirium.
Dr MK reports she was unsure regarding IG's capacity in respect of the management of her financial and personal affairs but stated that she was incapable of giving an EPA and EPG.
A report was received from the service provider who provided IG with personal care services in her home prior to her admission to hospital. The care team leader reported that there was conflict between JA and IG as JA wanted IG to transfer into residential care and GH was encouraging IG to remain at home with her cats. This was causing conflict with IG's friends and family due to the high care needs of IG. The report notes multiple physical health problems and IG's difficulty with mobility and cognitive impairment. The report notes that IG had not been observed to make financial decisions as GH had been making them on her behalf. IG had stated to the service providers that GH was taking responsibility for this. IG was reported to be resistant to having more complex care for her needs. It was reported that IG appeared not to understand the complexities of her medical conditions or that her mobility was unlikely to improve, and her care and support needs needed to be substantially increased above and beyond her current funding program.
The report provides specific details about the demonstrated inability of IG to meet her own personal care needs. The report notes that the service provider had given ongoing feedback of concerns to IG's main contact (being GH) and that no change in IG's living situation was observed.
An EPA was filed dated 27 April 2019 by which IG appointed GH as her sole attorney witnessed by a medical practitioner, Dr BM. A copy of a letter dated 21 September 2020 from Dr BM to GH notes that she was IG's general practitioner for 10 years and had witnessed the EPA on 27 April 2019 and would not have done so had she not been satisfied that IG was of 'sound and discriminatory mind'.
An EPA was filed dated 15 May 2019 by which IG appointed JA and RA jointly as attorneys witnessed by IG's regular general practitioner.
Both EPAs were styled to be in effect from execution.
An EPG was filed dated 23 July 2020 by which IG appointed GH as the sole enduring guardian.
A report from a hospital social worker reports allegations about financial decisions made by IG some years before and concerns about the conduct of IG's affairs by GH. The social worker reports that in the handover following IG's transfer from another hospital that the previous social worker had reported that GH had asked IG to sign a typed document which had been dated one month in advance of the date presented. This incident according to the report had raised suspicion in the mind of that social worker who had advised GH that it was not in IG's best interests to sign the document. The document purported to instruct JA to have no further input into decision-making about IG's care and not to contact IG's doctor, the hospital or her carers.
In response to case management orders, GH and JA, (the attorneys appointed under the two separate EPAs made by IG) filed documents setting out her financial circumstances.
GH, also filed a written submission setting out the history of his relationship with IG, which he stated had existed for 33 years when he became friendly with IG and her live-in friend DF. GH sets out the role he had played in supporting DF and IG, after DF's death in 2003 he was the executor of DF's estate. GH said he would always support IG due to her failing health in later years. This included assisting with IG's attendance at medical and other appointments. GH explained the circumstances of the execution of the EPA and EPG by IG. GH reports that payment of IG's personal bills was always done together by them and paid accounts were filed.
The Public Advocate was requested to investigate the applications and report to the Tribunal.
The Public Advocate's investigator (investigator) reported on his contact with the parties and with IG who was interviewed by the investigator at the hospital where she was a patient. The investigator reports that IG had indicated that she would only ever want two people to look after her finances, as one person would be able to do whatever he or she wanted. She was reported not to trust JA or RA and suspected that JA was trying to access her inheritance early. IG could not recall signing any EPA and was unable to say why she had appointed GH solely. IG was strongly of the view that she did not wish to live in a nursing home and that her relationship with JA and RA had suffered because this was what they wanted her to do.
The investigator reported that the service provider who had provided in-home services to IG had indicated to him that IG's care needs were too great for her to safely remain living independently and she was in need of permanent residential care for some time because of an inability to manage her double incontinence. The service provider indicated that the concern about the need for residential care had been referred to GH. The service provider advised the investigator that on one occasion the carers had attended IG's home and had found her on the floor and had called an ambulance as GH had not done so as he considered it was not necessary. GH had advised the service provider and the investigator that he felt IG could be managed at home on discharge from hospital and that she did not need to be placed in permanent care. GH is reported to have said he had bad experiences with aged care facilities in the past and had shared those experiences with IG. He was adamant according to the investigator, that IG, when discharged from hospital, would be able to return to living independently which the investigator submitted was against the medical and professional advice received.
The investigator reported that medical decisions were being made in consultation between the hospital and JA. Previously, GH was the contact person as the medical decisionmaker but this was changed due to concerns about GH's motivations and decision-making. Medical treatment for IG was now managed under s 110 ZD of the GA Act.
The investigator submitted that the EPG made in favour of GH should be revoked as it had not operated in IG's best interests.
In respect of the EPAs the investigator submitted that the EPAs executed by IG were made within weeks of each other and were in conflict. The investigator reported that IG had a complex estate owning several commercial properties as well as a residential property where she and her brother reside (her brother residing in a cottage at the rear of her property). IG also has approximately $500,000 in bank accounts and a small portfolio of shares.
The investigator reported that in the course of the investigation he had heard several family and friends of IG make allegations about the motivations of GH in respect of the management of IG's finances. The investigator submitted there was no concrete evidence to suggest GH had exploited IG financially but this concern had been expressed from multiple sources.
In the hearing the investigator reported that IG likely had an interest in a property of her late husband's which remained in his name for 35 years after his death.
Finally the investigator noted that IG had been the founder of two charities in Western Australia and had a close connection with these organisations and had given donations, as well as gifts to friends and relatives and he submitted that a gifting authority should be included in any orders made.
The investigator submitted that the EPAs should be revoked and the Public Trustee appointed the plenary administrator of IG's estate. He also submitted the EPG should be revoked and the Public Advocate appointed as guardian for IG. There was a need for orders for IG and there was now a tense relationship between the parties.
The applicants and GH were legally represented prior to the hearing and access was granted to all the materials filed. At the hearing conducted on 20 October 2020 GH was not represented. IG did not attend the hearing.

Principles to be observed

In making decisions on the applications Tribunal must observe the following principles:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person’s previous actions.
To appoint an administrator, the Tribunal must first be satisfied that the person for whom the order is sought is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate (s 64(1)(a) of the GA Act).
To appoint a guardian the Tribunal must be satisfied that the person for whom the order is sought is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person; or
(c)in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
Before making orders the Tribunal must be satisfied that the person is in need of a guardian and an administrator.

Decisions of the Tribunal

At the conclusion of the hearing the Tribunal gave brief oral reasons for the decisions made.
The following are the reasons given amended for clarity and to delete identifying information and any repetition.

The need for an administrator

I am satisfied on the material before me, including the most recent report of Dr MK, the consultant geriatrician, dated 8 September 2020, that the presumption of capacity of IG to manage her own affairs is displaced. Although Dr MK is not sure about the diagnosis, a recent MMSE which is a cognitive assessment of IG produced a result of 12/30. The report says this is not likely IG's baseline. IG is in hospital with a delirium post neck of femur fracture. Her diagnosis is unclear but a previous assessment, conducted when IG attended the memory clinic in January 2019, produced a MMSE score of 17/30, which also indicates a cognitive impairment. In her recent report Dr MK describes IG's fluctuating cognition, superimposed on a delirium. A further cognitive assessment of IG on the day before the hearing reported by the investigator produced a score of 18/30 which submitted by the investigator is consistent with the previous score of 17/30 and which could be argued is IG's baseline.
It is unclear whether IG will continue to recover, but I am satisfied that there is an objective assessment of impaired cognition, both in the January report and this most recent assessment conducted later in September 2020, that IG does have a cognitive impairment.
The fact that IG has a cognitive impairment is not challenged by the parties. When asked whether IG could make her own decisions GH acknowledged that IG could not.
The Tribunal is satisfied that the cognitive impairment described by the geriatrician in her recent report and documented in the previous assessments of IG, is a mental disability for the purposes of the GA Act.
IG has not been managing her estate herself. She has had the assistance and support of GH according to his evidence for at least the last two years, whereby he would write out cheques and IG would sign them. IG has been reliant on GH for that assistance and she has not managed her estate herself.
When the service provider recommended that IG needed to purchase additional assistance, GH's evidence was that IG did not want to purchase those private services which she was assessed as requiring. Had they had been in place, perhaps, they may have protected her from the very significant deterioration that she experienced, particularly the breakdown in her skin integrity which required medical treatment.
Having regard to all to the evidence, I am satisfied and find that IG is unable, by reason of a mental disability to make reasonable judgments about her estate.
IG has a complex estate. She owns residential and commercial property. Her estate is extensive and the Tribunal is satisfied that she is not able given her cognitive impairment of making reasonable judgments about her estate.
I find that she is in need of an administrator of her estate.
It is the case that IG has made two EPAs that, all parties agree, are inconsistent: On 27 April 2019 IG appointed GH, as her sole attorney, and on 15 May 2019 IG appointed JA and RA, her niece and nephew, as her joint attorneys. When she made the later EPA she did not revoke the earlier EPA.
The documents are completely inconsistent. All of the attorneys appointed under these instruments support the revocation of the EPAs and the appointment of the Public Trustee as an independent, neutral, professional administrator to manage the affairs of IG, as recommended by the investigator.
The Tribunal is satisfied that there is a need for an administrator and that the inconsistent EPAs do not represent a less restrictive alternative to the appointment of an administrator. Essentially, this is because of their inconsistent nature and also because of the lack of trust that has arisen between the attorneys and the parties generally and the concern that has been expressed in relation to the management of IG's affairs. I am satisfied that the EPAs should be revoked.
The Public Trustee, is appointed the plenary administrator of the estate.
The EPA dated 15 May 2019 by which IG appointed JA and RA is revoked and the EPA dated 27 April 2019, by which IG appointed, GH, as her attorney, is also revoked.
The investigator notes that IG was instrumental in the establishment of the non-government organisations to which she has given donations from time to time, and recommends that gifting be authorised in any administration order made.
An administrator cannot make gifts on behalf of the represented person unless authorised by the Tribunal. I accept this has been the past practice of IG, and it is likely she would want this to continue. The administrator is authorised to expend up to $1,000 per annum on gifts on behalf of IG.

The need for a guardian

In the most recent medical report, the opinion is that IG is now unable to give an EPG.
The report notes that IG is likely unable to make complex financial or lifestyle decisions. The decisions to return home, to go to transitional care or to go into residential care, are complex decisions facing IG.

The Tribunal satisfied that IG is a person, for whom a guardianship order may be made.
The service provider indicates that IG was not able to manage her very high level of personal care needs at home. There was clearly concern, raised in the report, of IG's ability to make an assessment of her own care needs. GH does take some issue with that opinion. He also says he doubts the assessment by the service provider that IG had suffered falls - GH takes a different view.
The service provider reported that IG was assessed as able to make her own decisions. It was also reported that she was unable to appreciate and was resistant to having more complex care for her needs. IG had exhausted the Commonwealth Home Support Program. She appeared not to understand the complexity of her medical condition, appeared not to understand that her mobility was unlikely to improve and that her support needs would be substantially increased. IG demonstrated an inability to attend to her personal care needs independently and she suffered severe incontinence with resultant skin irritation which required medical treatment. I am satisfied that IG is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of her medical treatment, her care needs and her service requirements.
IG wishes to return home. Both her brother and GH support that. However, that is a complex decision facing IG. The applicants consider that IG requires nursing home care. Both sides of the argument have already formed their views. I consider there is a need for a guardian to properly assess the needs of IG and to determine whether her needs can be met in a home care setting.
When acting in the best interests of the represented person as set out in s 51of the GA Act, there is an obligation on a guardian to encourage the represented person to live in the general community and participate as much as possible in the life of the community. That obligation has to be considered consistent with the other obligation to: protect the represented person from neglect, abuse or exploitation including selfneglect. This is a difficult issue, and there needs to be a balance of the needs of IG by the guardian.
IG has expressed her own wish that she wishes to return home, and that is, obviously, another consideration for any guardian.
IG also expressed her wish, through her execution of an EPG that GH make decisions for her.
The investigator raises concerns about IG's capacity to execute this document.
The presumption of capacity goes with IG, that is, that she was capable of making that choice. The issue of capacity (of IG to execute such a document) is properly raised, as there is a concern because, doctors were asking GH for consent about non-resuscitation of IG prior to the execution of the EPG. The presumption of capacity goes with IG but there was already some doubt about her appreciation of her healthcare needs, even at that point.
The real issue in respect of the EPG relates to the failure of GH as the enduring guardian to fully appreciate the care needs of IG; to not independently assess her needs; not to place weight on the advice of the professional service provider, preferring his own assessment, and, essentially, acting on the wishes of IG, when the obligation of an enduring guardian, is to make a decision in the best interests of the person concerned. To comply with the wishes of a person, if that is inconsistent with his or her care needs, is not an appropriate exercise of a guardian's function.
It is the submission of the investigator that GH has not developed any plan to support IG in the home despite that being her very clear wish.
I am satisfied that there is a need for a guardian, that IG is in need of oversight, care or control in the interest of her own health and safety. I am not satisfied that the EPG has been effective to meet the needs of IG in these complex decisions about her care needs, residential care status, whether she goes home or whether she goes into transitional care or to residential care.
The submission of the investigator is that there is now some uncertainty about the operation of the EPG and the hospital staff are now not acting on it, in any event, preferring to rely on another part of the legislation, s 110ZD of the GA Act where the nearest relative of a person can make treatment decisions for an incapable patient. JA has been identified as the nearest relative. This approach is inconsistent with the legislation, and needs to be clarified. There needs to be certainty on the part of healthcare professionals and those dealing with IG as to who has the lawful authority to make decisions on her behalf.
On the oral application of the applicants I revoke the EPG, dated the 23 July 2020 which appoints GH as enduring guardian.
I revoke the EPG despite the wish of GH that this not be done. His preference is that he continue under the EPG, because it is the wish of IG.
I acknowledge that IG has expressed strong wishes to the investigator. She has demonstrated that wish through that EPG, but her wishes have been inconsistent, and that is reflected in the execution of two inconsistent EPAs.
I accept the submission of the investigator that the EPG should be revoked and Public Advocate should be appointed the guardian of IG.
It is difficult for the Tribunal to ascertain IG's wishes at this point, and it is clear, from the material before me, that it is in the best interests of IG that the EPG be revoked.
I am not going to make an electoral declaration, as the evidence about that issue is too uncertain.
I make the following orders.

Orders

The Tribunal declares that the represented person, IG 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:
1.The order made on 4 September 2020 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
2.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).
3.The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.
4.The enduring power of attorney dated 15 May 2019 by which the represented person appointed JA and RA to be her attorney, is revoked.
5.The enduring power of attorney dated 27 April 2019 by which the represented person appointed GH to be her attorney, is revoked.
6.The administration order is to be reviewed by 1 October 2021.

Guardianship
7.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 the services to which the represented person should have access;

8.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.
9.The guardianship order is to be reviewed by 1 October 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
24 DECEMBER 2020