JAB - [2010] WASAT 97

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JAB [2010] WASAT 97

MEMBER: MS F CHILD (MEMBER)
MR J MANSVELD (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)

HEARD: 11 AUGUST 2009 AND 20 NOVEMBER 2009
20 JANUARY 2010 AND 25 MARCH 2010

DELIVERED : 8 JULY 2010

FILE NO/S: GAA 1615 of 2009

BETWEEN: JAB
Represented Person

Catchwords:

Guardianship and administration - Periodic review of an administration order - Whether the represented person remains a person for whom an administration order can be made - Whether she is in need of an administrator - Suitability of the administrator for appointment - Conduct of the proceedings before the Tribunal relevant to the question of suitability Whether the administrator able to perform the functions - Direction to the administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 68, s 68(3), s 70, s 70(2)(c), s 70(2)(f), s 80, s 84, s 90
State Administrative Tribunal Act 2004 (WA), s 76

Result:

Administrator reappointed with direction

Category: B

Representation:

Counsel:

Represented Person : Self-represented

Solicitors:

Represented Person : N/A

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

MO and JB [2008] WASAT 228
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Following a review, the Tribunal confirmed the appointment of the partner of a woman with a diagnosis of dementia as the administrator of her estate. The reappointment followed protracted proceedings for review of an order made by the Tribunal in May 2008. The order was initially due for review in August 2009; however, the review was not concluded until March 2010.
In the course of the review, the administrator rejected specialist medical evidence and asserted that the represented person made her own decisions and did not need an administrator of her estate. The administrator maintained this position despite the represented person having a diagnosis of dementia made some years before. The administrator produced no new medical evidence. The administrator conceded in March 2010 that the represented person needed an administrator of her estate only when alerted to the possibility of the appointment of an alternative administrator who recognised the protective nature of that role.
The correspondence submitted to the Tribunal by the administrator and the way in which she conducted the review before the Tribunal raised the question of whether she was suitable for reappointment. It appeared to the Tribunal that she was unable to deal with the review in a reasonable and measured way. The Tribunal considered that this may impact on her management of the estate if she conducted other legal proceedings on behalf of the represented person. As the accounts submitted by the administrator had been allowed by the Public Trustee, the Tribunal concluded that the financial management of the estate had been satisfactory. The Tribunal decided to reappoint the administrator, but without the authority to conduct legal proceedings on behalf of the represented person without further order of the Tribunal.

Reasons

These written reasons relate to the periodic review of an administration order dated 12 May 2008 by which AS was reappointed the plenary administrator of the estate of JAB (represented person).
As with all written reasons produced of proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act) names and identifying information have been removed consistent with the requirements of the legislation and to protect the privacy of the represented person.

Background

In May 2008, AS consented to act and was appointed the administrator of the estate of the represented person. Written reasons of the Tribunal on cost applications which followed that decision were published as MO and JB [2008] WASAT 228. The Tribunal summarises the history from [7]:
In July 2005, JB appointed PS her attorney under an enduring power of attorney (EPA). In March 2007, JB executed a second EPA appointing her niece, MO, her attorney. In January 2008, JB revoked the second EPA and made a third, appointing her partner, AS, her attorney.
In July 2007, AS applied for orders under s 109 of the GA Act for PS to file records and accounts of her dealings as donee of the EPA and for the records and accounts to be audited. The Tribunal ordered PS to file and serve the documents but declined to order they be audited. After considerable delays, PS complied with the order. Other than some formalities, that completed those proceedings.
On 26 February 2008, JB applied for an order revoking the EPA she had made in favour of her niece, MO. Documents lodged with the application indicated that JB had in fact revoked the second EPA in January 2008 and registered the revocation with Landgate, but she wanted an order that MO return the copy still in her possession.
On 28 February 2008, MO lodged applications for the appointment of an administrator for JB and for orders revoking the EPA in favour of AS, requiring AS to file records of her dealings under it, and for the records to be audited.
In documents filed in support of their applications, JB and AS on the one hand, and MO on the other, made claims and counterclaims about JB's capacity to make reasonable judgments about her relatively large and complex estate. Some submissions were in JB's name only and some in AS's name only; most were in their joint names.
AS and MO each alleged financial exploitation and abuse of JB by the other, and medical reports submitted with their applications were at odds. JB and AS maintained that she was capable of managing her financial affairs. They disputed reports, including one from JB's former general practitioner, indicating that she had been diagnosed with moderate Alzheimer'stype dementia and was not capable of managing her financial affairs.
Numerous documents were lodged by JB and AS including Family Court proceedings in which JB had been involved with a former partner, and AS regularly sent lengthy correspondence about the applications and JB's financial affairs, much of it alleging serious wrongdoing by doctors, Tribunal staff and others in terms that could only be described as inflammatory and frequently defamatory.
In late March 2008, at the instigation of JB and AS, JB attended on Dr RC, Consultant Geriatrician, for an assessment of her cognitive capacity. Dr RC saw JB on two occasions. He reported that she was not able to give clear responses about her financial affairs; her level of cognition had declined and her symptoms were consistent with degenerative brain disease; he did not believe she had the capacity to execute an EPA at that time.
…
Solicitor acting on instructions from AS, attended the directions hearing on 3 April [2008] and handed the Tribunal a lengthy email he had received that morning from AS which she had asked him to present to the Tribunal. The email advised that AS and JB would not be attending the hearing. It conceded, in light of Dr RC's report, the possibility that JB had, in fact, lost capacity regarding her finances; further, that the EPA appointing AS might not be valid and the revocation of the EPA appointing MO must also be 'in question'. It referred to 'the need urgently to finalise outstanding legal matters and the extreme urgency relating to recent unaccounted losses from [JB's] superannuation fund' and asked for the appointment of an administrator 'to be expedited'.
On 1 May 2008, the Tribunal received a faxed letter from AS making what can only be described as wild allegations against Dr RC and various allegations about Tribunal officers and others. It concluded by stating that AS and JB had decided to move to another State where they have property 'beyond the jurisdiction' of the Tribunal.
The final hearing proceeded on 12 May 2008 and, despite their email, AS and JB attended. JB continued to insist that she was capable of making reasonable judgments about her financial affairs but AS conceded that she was in need of an administrator.
The periodic review of the order was set in May 2008 to occur by 12 August 2009. This date was set to allow for accounts to be submitted by the administrator and examined by the Public Trustee.

Legislative framework

All administration orders must be reviewed (s 84 of the GA Act). On review, an order may be confirmed, amended or revoked or revoked and another order substituted for it (s 90).
When making an order to appoint an administrator, or on review of that order, the Tribunal must be satisfied pursuant to s 64 of the GA Act that the represented person 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 and in need of an administrator of her estate.
A mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
If the Tribunal declares a person to be in need of an administrator, it shall appoint an administrator.
Section 68 provides:
(1)An administrator (including a joint administrator) shall be
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
In determining who should be appointed, the Tribunal shall take into account as far as possible the compatibility of the proposed appointee with the represented person, the wishes of the represented person and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator (s 68(3)).
These provisions are subject to principles set out in s 4 of the GA Act which the Tribunal is required to observe in all proceedings commenced under the GA Act.
The principles in s 4 of the GA Act provide that the primary concern of the Tribunal must be the best interests of the represented person. The principles also state that every person shall be 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 of making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal. If the contrary is proved, any order made should be in terms that impose the least restrictions possible, in the circumstances, on the person's freedom of decision and action.
In considering any matter, the Tribunal is bound to attempt to ascertain the wishes of the represented person as expressed or if necessary, as gathered from the person's previous actions.
The legislative intent of the GA Act was considered by EM Heenan J in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268. Heenan J said at para [43]:
…
In this regard it seems essential to appreciate that the Guardianship and Administration Act is intended to 'provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs ... and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes' (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or illconsidered personal decisions or action, or by unscrupulous or illadvised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.

The review proceedings

The periodic review of the order made on 12 May 2008 was first listed for hearing on 11 August 2009. At that hearing, the administrator challenged the existing medical evidence before the Tribunal and sought an adjournment so that the represented person could be assessed by Dr PP, a neurologist, with whom she said the represented person had an appointment. The administrator gave the date of the appointment in the hearing and raised no objection to the proposal to provide medical reports held by the Tribunal to Dr PP prior to the assessment.
Following the matter being adjourned, and the Tribunal staff being advised that the represented person did not have an appointment with Dr PP on the date given by the administrator, the administrator advised a Tribunal staff member that she intended to seek an injunction in the Supreme Court to restrain the Tribunal contacting medical practitioners and in particular Dr PP in respect of the represented person.
In a letter dated 25 August 2009, addressed to the Executive Officer of the Tribunal, the administrator said:
Public officers at both the State Administrative Tribunal and the officers of the Public Advocate including you, are not judicial officers and therefore are not exempt from the CCC Act, and have been included in my complaint to the CCC by virtue of their misconduct in that I believe they corruptly acted and corruptly failed to act in the performance of their duties. A CCC investigation commenced last year had been pending additional advice from me, which I am in the process of providing to them. Would you therefore desist from harassing and threatening me and allow the investigation to proceed unhindered.
At the conclusion of the review, the Tribunal had not received a report from Dr PP, and is unclear if Dr PP has assessed the represented person or not.
At the hearing of 20 November 2009, the administrator was legally represented and her correspondence of 25 August 2009 was put to her. She did not respond to that material but through counsel submitted that the report of Dr JC, combined with the other reports which the Tribunal had on its file, supported the need for an administrator to be appointed for the represented person. Further, there would be no opposition to the Tribunal extending the appointment of the administrator for a further five years. Counsel said that the administrator 'accepts this after having read the report of Dr JC on whom the administrator and represented person placed a lot of reliance'.
The hearing was adjourned to allow the Public Trustee to conclude the examination of the annual accounts submitted by the administrator to the Public Trustee pursuant to s 80 of the GA Act.
At the resumed hearing on 20 January 2010, the Public Trustee's representative reported that the examination of the accounts had been completed and the accounts allowed. Some minor issues raised in the examination had been addressed by the administrator to the satisfaction of the Public Trustee.
The administrator appeared unrepresented at the January 2010 hearing and reverted to her formerly expressed view that the represented person did not need an administrator of her estate and that she made her own financial decisions.
The Tribunal alerted the administrator to the medical evidence before it and to the earlier findings made by the former Tribunal. It also confirmed to the administrator the protective nature of the legislation; that once the represented person is found not to be capable of making reasonable decisions about any or all of her estate, the role of the administrator is to act to protect the interests of that person, which involves an understanding of the vulnerability of that person and the need for substituted decision making.
Having raised these issues and the possibility of the appointment of another administrator who would act to protect the represented person's estate, the Tribunal adjourned to allow the administrator to consider her position and to seek further legal advice if she wished to do so. Orders were made for the filing by the administrator of a statement as to whether she considered the represented person to be in need of an administrator and, if so, did she consent to her appointment. The Tribunal also sought further information regarding the management of the estate, in particular, in relation to current or proposed legal proceedings involving the represented person, a reverse mortgage facility which had been negotiated and the status of the represented person's superannuation fund.
The administrator was asked to provide a written submission regarding these matters by 5 February 2010.
The administrator made three further submissions to the Tribunal, on 3 February, 15 February and 8 March 2010.
In her submission of 3 February 2010, the administrator reasserted her expressed opinion that the represented person does not have dementia and that:
Given that it now appears that the represented person's cognitive difficulties emanated from the fall with head injury she incurred on 25 December 2004, while in the company of her (now estranged) family, it would account for the entirely plausible scenario that the represented person's condition has not significantly deteriorated which accords with my observations.
In the submission dated 15 February 2010, the administrator again took issue with the assessments undertaken by a general practitioner in 2007, which had been before the Tribunal for the original applications, and with the specialist assessments by geriatricians Dr JC and Dr RC.
A further submission from the administrator, dated 8 March 2010, states the following regarding the represented person:
Her observed pattern over recent years leaves me in little doubt that [the represented person's] cognitive ability has undergone a number of stepwise regressions, after which she has rallied, and then remained relatively stable for a period of several months. Given such a pattern, it was perhaps inevitable that [the represented person] would eventually decline to a level where she was unable to demonstrate capacity. It appears that such an eventuality has recently occurred, that is, in the period between the previous SAT hearing of 20 January 2010 and the adjourned date of 25 March 2010. Whilst I may have previously been of the view that [the represented person] may have been able to demonstrate capacity, provided she was appropriately educated, I am no longer confident that this is the case. Whatever the cause, I am now personally satisfied that [the represented person] is unable, by reason of mental disability, to make reasonable judgments in respect of matters concerning all of her estate and, having had her lawfully given EPA (revoked) is in need of an administrator. I am also of the view that assistance is required in relation to lifestyle, medical and other personal decisions. As spouse to the represented person, and in accordance with her wishes, I seek to be appointed as both her administrator and her guardian.
No application was made for the appointment of a guardian for the represented person in the current proceeding and the administrator did not pursue this at the final hearing.
Following a further hearing on 25 March 2010, the Tribunal reserved the decision on the review of the administration order. These reasons for that decision are produced pursuant to s 76 of the State Administrative Tribunal Act 2004 (WA) which provides for a decision and reasons to be produced 90 days after the day of a reserved decision or an extension of that period given by the President.

Is the represented person unable to make reasonable judgments about her estate?

There are a number of medical reports before the Tribunal, submitted for this review with the original applications and to support an application for leave referred to above made by the administrator in 2009.
For the purposes of the review the Tribunal reviewed all the medical evidence submitted.
The report of Dr HP, consultant psychiatrist, dated 15 March 2006 states:
I have no doubt that [the represented person] does present with Dementia.
In a later letter dated 5 April 2006 to solicitors then acting for the represented person, Dr HP reports:
… there is no denying the history of [the represented person's] developing chronic and significant Anxiety and Depression. However of more concern were significant cognitive deficits which were readily apparent. I feel it was almost certainly Organic, with a contribution from her Anxiety and Depression.
[The represented person] does not consider she requires any further psychiatric input. She attributes all of her problems to stress. She considers all she needs is to have her case settled. [The represented person] has no understanding or appreciation of the extent of her cognitive difficulties. She has minimal insight. At times her judgement is quite impaired. It is almost certain [the represented person's] cognitive deficits are irreversible.
A medical report of Dr AT, general practitioner, dated 5 February 2008 notes that she had been the represented person's doctor for over 11 years at the time of the report. She reports a diagnosis of:
… moderate Alzheimer's dementia'. Assessment 2004 and a progressive condition. Steady deterioration since diagnosis in 2004 despite taking Aricept 10 mg daily.
The report states that the represented person is 'incapable' in the sphere of personal health care decision making; 'Confused about context and choice. She does not understand consequences'. Dr AT stated the represented person was 'Incapable' in the spheres of decision-making about her living situation and financial affairs.
The doctor goes on to say:
Has trusted others partners and carers and signed documents which have resulted in loss of large sums of money. [The represented person] is very trusting and generous. She does not appreciate that her actions have in the past and currently seriously depleted her finances.
Dr RC, a consultant geriatrician from whom the administrator and the represented person sought an opinion in 2008 gave evidence relied on by the former Tribunal that the represented person was not capable of making reasonable judgments about her estate.
His report, dated 29 March 2008, as noted by the former Tribunal, followed two assessments, one at the represented person's home. His conclusions following the assessments were that:
The signs and symptoms she displays are consistent with degenerative brain disease. There is nearly a five year history of deteriorating memory function that has clearly been accompanied by a deficit in occupational and social functioning. The CAMCOG score from 2007 is significantly below the performance that one would expect from a person of her educational and academic background. It is clear that she is very reliant on others to assist her with instrumental activities of daily living. An example of this is the fact that [the administrator] has written much of the correspondence signed by [the represented person] recently. She has a clear deficit in episodic memory. Although I have no other test of episodic memory to compare to the current test, it is inconceivable that she would have performed so poorly when she was working as [deleted]. The performance now therefore, is most certainly a decline from a prior level of cognition. Along with the psychological and emotional symptoms documented over the past four years this is the behavioural phenotype of Alzheimer's disease. There is a degree of medial temporal atrophy on the brain scan and this is supportive…
With respect to her capacity to make decisions, based on my two consultations with her I don't believe she has the capacity to execute an enduring power of attorney at the present time. She generally gave very vague responses to a lot of questions. She had only a marginal grasp of her assets.
The former Tribunal preferred the evidence of Dr RC to that of Dr C, a general practitioner who, although giving a diagnosis of 'Posttraumatic stress disorder Dementia? Alzheimer's type' in a report dated 16 April 2008, said that the represented person was, in his opinion, capable of making reasonable decisions about her estate.
The report of Dr RC, with which the administrator has taken the strongest objection, refers to the report from Dr HP, the psychiatrist, and notes her report 'does not specifically mention Alzheimer's disease as the cause of the dementia but presumably, given the prescription of Aricept, this was the presumptive diagnosis'.
A report from Dr JC, a consultant geriatrician, was submitted in 2009 by the administrator when seeking leave to apply for review of the order in the months prior to the statutory review. The report was of an assessment of the represented person's capacity to execute a will undertaken in August 2008. Dr JC reported she had not assessed the represented person's capacity to manage her own affairs at that time.
For the review the Tribunal heard evidence from Dr JC at the first hearing on 11 August 2009 during which time she traced the history of her contact with the represented person from 2004, including an assessment of her capacity to give an enduring power of attorney (EPA) in 2007, and in 2008 in respect of an execution of a will. Dr JC noted that at the time the represented person was receiving an anticholinesterase inhibitor (Aricept), a medication used in Alzheimer's disease which according to Dr JC can only be prescribed for that purpose. The administrator disputed this. Dr JC noted that the administrator and the represented person were questioning the diagnosis and a review was being sought from Dr PP, a neurologist who had, according to Dr JC, accepted expertise in dementia in younger patients. She noted that the report of Dr RC, given in the previous proceedings that the represented person has the label of Alzheimer's disease, as 'probably correct'. She said:
There is no doubt on the information I have obtained myself as opposed to what other people have done over the years that she does have some problems which impact on her ability but when she was when I saw her in 2004, I did not have enough information to make a diagnosis of dementia. When she came back to see me she had been labelled as having Alzheimer's disease and started on the Aricept by someone else and that is a point of some contention because it's not completely clear who did that.
Later, she went on to say:
She has got some cognitive problems but I understand that they were told that she would deteriorate very rapidly and whatever whereas in fact although she has some mild dementia, I had her tested by a person qualified to do a CAMCOG in 2007, Dr MW and she came out with a mild dementia and her MMSE [Mini Mental State Examination Score] at that stage was 22.
Dr JC described the CAMCOG as a neuropsychological test which assesses memory in more detail than the Mini Mental State Examination.
In a later report, dated 18 November 2009, Dr JC notes:
…
I arranged for a repeat MR of the brain to be performed as it was two years since her last scan. This was performed by the same company and reported by Dr MF who had reported her scans in 2004 and 2007. His conclusion reads 'Generalised supratentorial and infratentorial involutional change. This appears slightly more prominent involving the anterior and mesial temporal region and has progressed slightly in comparison to the study from 18 July 2007. There is no evidence for accelerated small vessel ischaemic changes or remote infarction'. This study would indicate that there has been slight progression in the areas of the brain that are specifically involved in Alzheimer's disease, that is, the anterior and mesial temporal regions and slight deterioration overall. It would not support a diagnosis of accelerated small vessel ischaemia leading to a vascular dementia.
The doctor goes on to say:
…
With respect to the current functioning it is apparent that the represented person relies on [the administrator] for a lot of prompting and with more complex day to day tasks as well as for emotional support. It is however, apparent that in other areas she has stabilised.
Dr JC notes that she had not performed a MMSE as the represented person 'had recently had extensive testing which I understand will be available by the time of the hearing'.
No further reports other than the report of Dr JC were made available to the Tribunal for the review.
Returning to the report, Dr JC summarises the position as follows:
1)[The represented person] does suffer a mild dementing illness. Whilst I initially [sic] understood she had been diagnosed with Alzheimer's disease I see from Dr [HP's] letter that she diagnosed only a dementing illness. It is still completely unclear to me who commenced the Aricept which is only available on the PBS for Alzheimer's disease, however, it will be quite clear to you from my previous letters and this letter that she is currently stable and it is my considered opinion she should stay on this medication at this stage. I will of course review this situation after we have obtained a second opinion from Dr PP.
2)Currently, [the represented person], benefits from having an administrator to manage her financial affairs. While she certainly still understands some aspects of her financial affairs, I do not think she is capable of managing the day to day fine details. Further to this I believe that it is very important she have the protection of having an administrator appointed by the State Administrative Tribunal given the events of the last few years. Were anything to happen to [the administrator] I would feel that [the represented person] be very vulnerable and I consider that the protection afforded to her by being under review of the State Administrative Tribunal is necessary. I have explained to [the represented person] and to [the administrator] that regardless of the underlying aetiology of her mild dementia, that given she currently needs an administrator, it is highly unlikely she will improve and that in practical terms it is my view that she should continue to have an administrator indefinitely.
In the course of her submissions for the review, both orally and in writing, the administrator denies the represented person's diagnosis of dementia and specifically the diagnosis of Alzheimer's disease. She variously describes the represented person's difficulties as posttraumatic stress disorder, hearing loss, visual impairment, distrust of the medical profession, vascular dementia, (which was specifically excluded by Dr JC), panic attacks, adverse reactions to medications and stress. In later correspondence she refers to a head injury allegedly suffered by the represented person. Although a fall with head injuries is noted in a report of Dr AT in 2004 (when the represented person is said to have been too unwell to attend court), and a later fall in 2008 is reported by the administrator in her correspondence, none of the medical reports refer to this as a cause of the cognitive impairment suffered by the represented person.
Despite assurances given by the administrator in a letter to the Tribunal dated 24 August 2009 that medical reports from 'eminently qualified medical practitioners' would be submitted to the Tribunal 'or to the Supreme Court in due course', no further opinions were provided (other than a report from Dr JC, which was sought by the Tribunal).
In the course of the whole proceeding the administrator has not submitted any new professional evidence on which the Tribunal can rely which support her assertions.
The administrator takes issue with the analysis and interpretation of testing undertaken by health professionals. The Tribunal prefers the evidence of the health professionals, especially Dr RC and Dr JC, who have specialist qualifications in this field. We acknowledge the administrator's role as the carer for the represented person and note that she assumed this role in 2007. The Tribunal regularly hears evidence from family members and direct carers, both paid and unpaid, about the day to day functioning of the proposed or represented person which supports that carer's genuine belief that the capacity of the person is preserved and which challenges medical opinion. The Tribunal can prefer such evidence particularly when the medical opinion does not appear to be based on a full assessment of the represented person's capacity. This is not the case here. There is reliable capacity assessment evidence before the Tribunal made by professionals qualified to give those opinions. The administrator's assertions about the preserved capacity of the represented person made up until March 2010 are not consistent with her actions. Material before the Tribunal shows that the administrator gave up fulltime work in 2007 to assume the role of carer for the represented person. This is noted in a financial agreement between them which provided that the represented person advance a loan to the administrator on the basis that the administrator was giving up fulltime work and an income to provide fulltime care to the represented person. An application to Centrelink for a carer's payment in 2008 was made by the administrator and refers to the represented person's memory difficulties. The latest report of Dr JC refers to the dependence of the represented person on the administrator for prompting. This dependence was apparent in all the hearings attended by the represented person. At the first hearing the represented person made some comments, prompting herself from a piece of paper. Although she attended all but the last of the hearings she played little active part in the proceedings. On all occasions the administrator spoke for her. The administrator asks that correspondence not be sent to their home address to prevent the represented person becoming distressed by it. All the written submissions received by the Tribunal for the review have been prepared by the administrator on behalf of the represented person. In this sense the administrator is a strong advocate for the represented person.
We accept the evidence of Dr JC that the represented person is not able to deal with the day to day fine detail (of financial matters) and Dr RC's opinion given in 2008 that the represented person had only a marginal grasp of her assets. We find that the represented person is dependent on the administrator for financial and other decision making.
The Tribunal is satisfied that the medical evidence supports the finding that the represented person has dementia and by reason of that mental disability is unable to make reasonable judgments about her estate. The medical evidence refers to a progressive condition or an irreversible condition. Although the diagnosis of Alzheimer's disease is challenged by the administrator this does not change the conclusion we have reached. We consider that, taking the medical evidence as a whole, the represented person's incapacity to make reasonable judgments about her estate has existed at least from date of the order of the Tribunal in May 2008 which appointed the plenary administrator. We specifically reject the assertion made by the administrator that the represented person lost capacity between January and March 2010 as this is not supported by the evidence before us.

Is the represented person in need of an administrator of her estate?

Accounts submitted by the administrator in September 2009 to the Public Trustee for the period 12 May 2008 to 30 June 2009 identify the estate of the represented person as the unencumbered property in which the represented person and the administrator live valued at $1.2 million, personal property of $28,000, vehicles (total value $45,000), just over $100,000 in bank accounts, shares valued at just over $5,000, superannuation and a loan owed by the administrator of $8,000. The income of the represented person is reported as sourced from a part Centrelink pension, interest, superannuation and other receipts. The only liability is a credit card debt of $533.96. The Public Trustee raised some matters in relation to the accounts: the need to separately report the different categories of income and the inability of the administrator to report regarding superannuation receipts and transfer as these were subject to litigation.
In the final hearing, the administrator said that in October 2009 she had sought an ex gratia payment for the represented person from the parent company associated with the represented person's losses from her superannuation fund. At the time of the hearing in March 2010 she had not yet had a response.
It is suggested that there are outstanding legal matters in some of the correspondence before the Tribunal. The Tribunal sought more information about this because of the potential impact this might have on the estate. In response to queries raised in the Tribunal's order of 20 January 2010, the administrator stated by letter dated 15 February 2010:
It had previously been established that due to an oversight or omission by lawyers involved in Family Court consent orders, the represented persons significant intellectual property rights was not adequately dealt with in the May 2006 Family Court Consent Orders. Payment of royalties from the Copyright Agency limited (CAL) has been suspended to all parties pending a Court Order or an agreed resolution.
In an effort to minimise any further strain on the represented person's estate, I have been personally financing the activities of lawyers involved in investigations. An an examination of Family Court documents, including a recently obtained transcript of the May 2006 trial, has confirmed our suspicions that there was neither full nor frank disclosure to the Court by either side, including evidence provided by lawyers, case guardian and doctors. As previously advised, it has been conclusively demonstrated that the represented person has not assigned her copyright, and she is, in all probability, entitled to royalties, and backdated to when they ceased in 2004.
However, as also previously stated, I am fully cognisant that the costs involved in litigation have the potential [sic] outweigh the possible returns. Notwithstanding, the fact remains that no royalties are currently being paid, and a decision will have to be made at some stage as to how resolve the matter. We now have the added absurdity where belligerent parties are obfuscating on the outcome of this State Administrative Tribunal (SAT) review of my administration order, i.e., inferring that I may not have the authority to act for the represented person, or to appoint a substitute case guardian.
At the final hearing the administrator agreed that there were no outstanding proceedings in the Family Court, other than an application made by her for the removal of the former attorney as case guardian which had been adjourned in May 2009.
In respect of the intellectual property in the writings of the represented person, this matter was still outstanding but no legal proceedings were on foot. The administrator explained that the represented person had potentially forgone $50,000 per year in royalties from sales of works jointly authored with her former partner since their separation in 2004. Having spent some $20,000 in legal fees between October 2009 and February 2010 investigating this matter, the administrator reported that the legal advice was that, if the disputing parties agreed, the issue could be resolved through a determination of the appropriate distribution of royalties by the Copyright Agency Limited (CAL) without cost to the parties. Although only dealing with the royalties associated with photocopying (not sales or library lending), the administrator said that, once a determination had been made by CAL, the former partner of the represented person would be hard pressed to continue the dispute about the royalties from sales. She said she was awaiting advice from the solicitors dealing with the matter as to whether the former partner had agreed to the determination by CAL.

The Tribunal finds that the represented person needs assistance with all aspects of her estate; from the fine detail, as described in Dr JC's report, which might include the payment of her accounts and management of her various forms of income, to the overall planning and management of her estate including representing her interests regarding any unpaid royalties.
We find there are no less restrictive means by which the financial affairs of the represented person may be managed other than the appointment of an administrator of her estate; the Tribunal formerly dealing with this matter revoked EPAs made by the represented person in favour of her niece in 2007 and of the administrator in 2008. It is not possible that the finances of the represented person can be managed through an EPA now since we prefer the opinion of Dr RC expressed in 2008 that the represented person was no longer capable of executing an EPA. Submissions made by the administrator that the EPA made in favour of her be reinstated by the Tribunal are misconceived and contrary to the concession made by her in 2008 that the EPA appointing her might not be valid.
We also accept the view expressed by Dr JC that, because of the represented person's vulnerability, she needs the formality of an administration order with the associated review mechanisms and which provides for examination of annual accounts by the Public Trustee.

Suitability for appointment

When deciding on the suitability for appointment of a proposed administrator, the Tribunal must consider whether that person will act in the best interests of the represented person and is otherwise suitable for appointment.
The Tribunal, which first appointed the administrator, considered the submission regarding the potential conflict which arose from the loan made to the administrator from the represented person. The Tribunal decided that this did not exclude the administrator from appointment because of the oversight provided by the examination of accounts submitted by the administrator and undertaken by the Public Trustee. The accounts show that the administrator has repaid part of this loan.
The Tribunal cannot appoint an administrator who does not appreciate the need for an appointed administrator to act protectively in respect of the represented person's estate. Although s 70 of the GA Act requires an administrator to encourage and assist the represented person to became capable of caring for herself and in a manner least restrictive of her rights, this is while acting consistently with the represented person's proper protection (s 70(2)(c) and (f)). Although throughout much of the review the administrator actively asserted that the represented person was capable and did not need an administrator of her estate, we do consider that her correspondence and her submissions to the Tribunal show that she has acted for the represented person as a substitute decision maker.
When considering suitability, the ability of the administrator to perform the functions and role is required. This involves consideration of the nature of the estate to be managed. The estate of the represented person itself is not large and, although there is some complexity, we consider that the administrator has the requisite financial skills to manage such an estate. The Public Trustee has allowed the accounts submitted and will continue to scrutinise the financial management of the estate through this process each year. It is the administrator's conduct of proceedings before the Tribunal which raises, for us, a question of her suitability for appointment, particularly if in the future the estate is engaged in legal proceedings.
In the course of this proceeding and the previous matters heard by the Tribunal, the administrator submitted numerous lengthy written submissions of a wide ranging nature. The general position taken by the administrator in her correspondence with the Tribunal could be described as combative or even aggressive. A common element to most of the submissions is her attack on other persons, often made in the strongest terms. She makes serious and farfetched allegations about individuals and organisations. See, for example, the extract at para [20].
Some of the very serious allegations made in the strongest terms by the administrator are about events prior to 2007, and cannot be within the direct knowledge of the administrator since on her own evidence she came back into the represented person's life only in 2007.
In a jurisdiction where parties are often unrepresented and inexperienced in making submissions in legal proceedings and where intense interpersonal conflict is common, we consider the nature of the material put before the Tribunal was unhelpful at best, was lacking any sense of balance and unnecessarily prolonged the proceeding.
Most of the allegations made by the administrator are not credible or relevant to the findings this Tribunal needs to make in this proceeding, but the nature of the material called into question the administrator's ability to consider matters in a measured and reasonable way. Such an ability must be a requirement of any appointed administrator entrusted with managing the legal affairs of another. The administrator appeared not to have any appreciation of how her correspondence might be perceived by others.
During the course of the review proceedings, the administrator terminated the services of a solicitor acting for her, engaged the day before the hearing at which he appeared and, following that, changed the position put to the Tribunal in relation to the represented person's need for an administrator. When it was suggested to the administrator that she might wish to seek some legal advice about her position and the possible consequences of holding such a position, she responded in a letter dated 3 February 2010 that she:
'presum[ed] the recommendation to seek legal advice was not in a veiled attempt to bankrupt me, and thereby render me ineligible to operate as Administrator.'
Clearly, parties appearing before the Tribunal are entitled to be represented and to choose that representation, but the former Tribunal noted in its reasons, changes of representation in the course of that proceeding as well. This was a matter considered when the Tribunal made a costs order against the represented person's estate. This, taken together with the administrator's conduct of the proceedings when unrepresented, is of concern as to whether the administrator is able to perform the function to conduct legal proceedings on behalf of the represented person or the estate if called on to do so. The way the administrator conducted herself in respect of this proceeding gives us no confidence that she would conduct any litigation on behalf of the estate in a careful, considered way. For this reason we consider it is appropriate to exclude this power from the functions of the administrator until further order of the Tribunal.

Wishes of the represented person

At the first review hearing, the represented person denied she needed the assistance of an administrator and said that if she was unsure of something she would ask the administrator and if they were both unsure that they would ask their financial advisor. The represented person has in the past expressed the wish that the administrator assist her with her finances; she did this when she executed an EPA in 2008 which we accept as an expression of her wish at that time. We also consider that this wish is likely to have remained since the represented person is dependent on the administrator as her partner, carer and the administrator of her estate.
We note that the represented person is now estranged from her niece who she appointed as her attorney under an EPA in 2007. The administrator has sought to exclude the niece from proceedings before the Tribunal. Given this estrangement, were we to revoke the appointment of the present administrator, there would be no one in her life easily able to play that role and the only option then available would be the appointment of the Public Trustee. We consider this would not be the wish of the represented person and not necessary at this time given the direction we give to the present administrator.

Length of the order

In light of the medical evidence that the represented person's condition is a progressive or irreversible one, a five year order is appropriate.

Conclusion

The Tribunal reappoints the administrator as the plenary administrator for a five year term and directs that she not act as next friend or guardian ad litem on behalf of the represented person until further order of the Tribunal. For the reasons we have given, we consider this order is consistent with the expressed wishes of the represented person and the least restrictive possible in the circumstances of the represented person.

Orders

On review of an order dated 12 May 2008 it is ordered that:
1.AS is appointed the plenary administrator of the estate of JAB and directed not to act as next friend or guardian ad litem in any legal proceedings on behalf of the represented person or the estate until further order of the Tribunal.
2.The order is to be reviewed by 28 June 2015.

I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER