JF
[2021] WASAT 59
•30 MARCH 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JF [2021] WASAT 59
MEMBER: DR E MARILLIER, MEMBER
HEARD: 30 MARCH 2021
DELIVERED : 30 MARCH 2021
PUBLISHED : 28 APRIL 2021
FILE NO/S: GAA 61 of 2021
GAA 63 of 2021
GAA 73 of 2021
JF
Represented Person
G
J
Applicants
Catchwords:
Nil
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(7), s 40, s 44, s 51, s 65, s 68, s 109(1)(c), s 110N, s 110ZD, Pt 5, Div 3
Result:
Public Trustee appointed plenary administrator
Enduring power of attorney revoked
Public Advocate appointed limited guardian
Enduring power of guardianship revoked
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| Applicants | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicants | : | In Person |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard and determined on 9 March 2021 and oral reasons delivered on 30 March 2021. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and set out)
Background
JF is an 87-year-old man who lives in his own home with his wife AF. His daughter S and son-in-law W live at the rear of the property in their own caravan, and provide daily support to AF and JF. JF and AF are both diagnosed with dementia. I note that AF's diagnosis is more recent than that of JF.
JF executed an enduring Power of Attorney and an enduring power of guardianship on 23 May 2019 appointing S as his enduring attorney and enduring guardian and in both cases with G (his son) as the substitute appointee. I note that AF and JF have a third child, their daughter J.
Applications were received by the Tribunal under s 40, s 109(1)(c), and s 110N of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking appointment of a guardian and administrator and revocation of the EPA and EPG. The application was made by G and J, expressing concern regarding the actions of S and W and alleging that they were exploiting AF and JF financially.
Events leading up to the making of the application on 6 January 2021 included G and J taking AF and JF to stay at J's property, visiting the bank and arranging for their parents to revoke S's authorities over their accounts, a return home by AF and JF, and the making of a new EPA and EPG on 1 December 2020 by JF appointing S solely as his attorney and guardian.
The information in the application regarding the actions taken by all of the children of JF led to the making of an order on 22 January 2021 appointing the Public Trustee as his plenary administrator under s 65 of the GA Act to make immediate provision for the protection of his estate. The matter was heard and determined on 9 March 2021 and orders were made appointing the Public Advocate as the limited guardian for accommodation, treatment and services decisions, and the Public Trustee as the plenary administrator.
My reasons for making those orders follow.
The principles to be observed
In making a decision the Tribunal must observe the following principles:
•the Tribunal's primary concern is the best interests of the person concerned ;[1]
•every person is presumed to be capable of looking after their own health and safety; making reasonable judgements in matters relating to their person; of managing their own affairs; and of making reasonable judgments in respect of matters relating to the estate; until the contrary is proven to the satisfaction of the Tribunal;[2]
•orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;[3]
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned and take them into account.[4]
[1] GA Act s 4(2).
[2] GA Act s 4(3).
[3] GA Act s 4(4).
[4] GA Act s 4(7).
If the Tribunal determines that a person is in need of a guardian, then s 44 of the GA Act explains how the decision about who may be appointed shall be determined. The Tribunal must appoint a person who is of or over the age of 18, who has consented to act, and who in the opinion of the Tribunal will act in the best interests of the person. They must not be in a position where their interests may conflict with that person, and be otherwise suitable to act as the guardian. In assessing suitability the Tribunal shall take into account as far as is possible the desirability of preserving existing relationships within the family, the compatibility of the proposed appointee with the person and their administrator, the wishes of the person, and whether the proposed appointee will be able to perform the functions vested in him or her.
In assessing how a person acts in the best interests of a represented person, the Tribunal is guided by s 51 of the GA Act. This includes a requirement that the guardian act in such a way as to maintain any supportive relationships that the represented person has. They must also work in consultation with the represented person, taking into account as far as possible their wishes, as expressed in whatever manner and as gathered from their previous actions, and act in a manner that is least restrictive of their rights while still consistent with their proper protection. They must protect the represented person from neglect, abuse or exploitation.
In assessing who may be appointed as the administrator, the Tribunal is guided by s 68 of the GA Act. There are similar provisions to those regarding guardians as described above, including that the Tribunal be satisfied an appointee will act in the best interests of the represented person, consider the wishes of that person regarding who should be appointed and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
The evidence before the Tribunal
The Tribunal received reports from JF's general practitioner, Dr D, his geriatrician, Dr H, and case manager at Amana Living, JC. Submissions were received from G (including bank statements from August 2017 to October 2020), S (including explanations of her actions under the EPA and EPG, lists of appointments and assistance that she provides to her parents, and the financial costs involved) and W (describing his role and denying allegations that he has acted in any way contrary to their best interests). Copies of the EPA and EPG of 2019 and 2020 were filed with the Tribunal. I was also assisted by reports by the trust manager and the investigator of the Public Trustee, and a report by the investigator from the office of the Public Advocate, Mr S.
In attendance at the hearing, and providing oral submissions were Mr S, G, J, S and W. The Trust Manager was also contacted by telephone for additional input during the hearing.
Capacity
Dr D stated that JF has advanced Alzheimer's disease and attached a letter to that effect from Dr H of 11 February 2021 which indicated that JF scored 11/24 on a Mini Mental State Examination (MMSE) on that date. Dr D indicated that JF is no longer capable of making any financial, legal or personal decision in his own best interests. He indicated he was unsure regarding his capacity to execute a valid EPA or EPG.
Geriatrician Dr H stated that JF has Alzheimer's dementia, that it is progressive, and that he is incapable of making decisions simple or complex financial, legal or medical treatment, accommodation or services decisions. He stated he was unsure regarding capacity for EPA/EPG. Dr H attached correspondence dating back to 2 April 2019. At that time JF was noted to have difficulty remembering the names of his children, had trouble recalling attending the day centre and had experienced one episode of wandering.
Ms C from Amana Living, indicated that her agency is aware of the conflict between the siblings in regard to financial and care decisions. She noted that financial decisions are made by S, and that JF would not be able to make financial decisions and has not done so for some time. Ms C reported JF has trouble with recall and requires support with organising and attending appointments, and orientation outside the home.
W explained that at times now, JF has trouble remembering his own name, and this causes distress. He stated that AF and JF 'were like children'.
It was uncontentious that JF lacks capacity to make decisions in his own best interests as a result of dementia, and I am satisfied that he is a person for whom orders can be made.
Need
JF and AF receive support both from family members and the aged care system. The Public Advocate was requested to perform an investigation addressing whether JF was in need of a guardian and an administrator, whether the existing EPA and EPG provided a less restrictive alternative to the making of such orders, who would be suitable and willing to be appointed as a guardian or administrator, what functions should be conferred on a guardian if an order were made, and what were the views of and wishes of the proposed represented person.
The investigator from the Public Advocate's office, Mr S expressed concerns regarding the validity of the EPAs and EPGs both of 2019 and 2020. I note that JF was reported to have difficulty remembering the names of his children prior to the making of the EPA in May 2019. On review, this instrument is invalid in form due to no election being made at point 4 regarding the circumstances in which it would be active.
Dementia is progressive in nature. Given the previous EPA was invalid, the medical evidence and the observations of W regarding JF's current state, I am satisfied that the EPA and EPG of 1 December 2020 are invalid due to a lack of capacity.
The EPA and EPG of 2019 were completed without the assistance of a doctor or a lawyer. They were witnessed by staff at the school where S is employed.
The investigator's report from the Public Trustee raised concerns regarding a number of transactions on JF's accounts. S advised that her parents had indicated their willingness to provide financial assistance to her and W, as a recognition of their support at home. This included items such as contributing to the cost of surgery for W, and educational expenses of W's grandchild in the United States. The trust manager also noted an abrupt change in the pattern of expenditure on the credit card of AF from November 2019. This included a total of nearly $3,500 at lotteries and newsagents, and $3,400 for purchases at cafés or bars ranging from $5 to $125 per transaction. S and W indicated that some of this expenditure was due to AF wanting to pay for meals for S and W. S also noted that during covid lockdown she would purchase the weekly shopping for her parents, utilising their credit card. S indicated that she was surprised by the total amount of money that had been spent on 'scratchies' from lottery outlets.
The trust manager's report also raised concerns regarding S and W's lack of contribution to property costs and utilities, and the running costs and repairs of a vehicle that is owned and used by S and W.
At the hearing S explained that car insurance and repair costs in 2019 predated the sale of her parents' car.
The concerns of the trust manager and investigator from the Public Trustee regarding the propriety of the financial management of AF and JF's affairs under the EPA persuades me that even if they were valid, the EPA and EPG are not serving as less restrictive alternatives that will suffice to ensure JF's well-being.
Personal decisions include those regarding medical treatment, accommodation and support services. Submissions from S indicate the extensive number of medical and personal appointments that she and W arrange for AF and JF. I note that the applicants feel they have been excluded from medical treatment and support service decisions for their parents. Mr S notes the ongoing distrust and difficulties in communication between the siblings, and suggests that this indicates the need for an independent party to be appointed for personal decisions. I am satisfied that the EPG cannot serve as a less restrictive alternative, and note that the current arrangements lead to a potential conflict of interest for S and W regarding decisions about where and with whom AF and JF should live, and the support services to which they should have access.
I am therefore satisfied that there is a need for me to appoint an administrator and a guardian for JF and AF. Revocation of the existing EPAs and EPGs is required to clarify the authority of the administrator and the guardian.
Who should be appointed
In the initial application, G and J sought their appointment jointly as both guardians and administrators for their parents. Prior to the hearing they recognised that their appointment as administrators would be problematic and increase tension in family, and instead proposed that the Public Trustee be appointed.
G provided the Tribunal with explanations of the actions that he and J had taken regarding their parents' finances between 29 November and 3 December 2020. They took their parents to J's house in Dongara. The following day they attended a BankWest branch in Geraldton and were told that an EPA had been lodged on the accounts on 3 December. JF and AF wrote out and signed letters stating that they revoked that EPA and the bank accepted that. The accounts were then secured by closing the credit card and blocking the savings account. J and G then arranged to move JF and AF's money to a different bank. Three days later they opened a joint account in their own names at National Australia Bank (NAB). They attended Centrelink in Dongara and made arrangements to have their parents' pension payments paid into that joint account. This required the opening of a new account in AF and JF's names and J and G were listed as signatories on that account. They then transferred money from the Bankwest savings account into the NAB account. From 8 January aged care payments to Amana were made through this new account, as were reimbursements to J and to S for out-of-pocket expenses. Subsequent to those payments being made on the 13 January $22,500 was withdrawn or transferred from that account by people other than J and G. G noted that it was something that JF and AF were not capable of doing. Further transfers were made in mid January to try to secure their parents funds. By 22 January G had in his words 'no idea now where all mum and dad's money is'. This was the date on which the Tribunal made orders appointing the Public Trustee as the plenary administrator under s 65 of the GA Act.
Amongst extensive written submissions from S she stated that 'her EPA was redone on 1 December 2020' and accepted by Bankwest on 3 December 2020. She stated that J 'had mum and dad revoke her power of attorney on 4 December'. She also stated that Dr H had told her in October that neither her mother nor her father had the capacity to make any financial decisions. She explains the distress and confusion that the events of this time caused for her parents and for S and W.
Both G and S's submissions demonstrate that reckless and inappropriate actions have been taken by all three siblings. They have all sought to have their parents take actions in regard to revoking or executing EPAs and EPGs at a time where they did not have capacity to make such decisions.
The Tribunal has also received numerous written submissions from S and W explaining the amount of time and assistance that they provide to AF and JF. In none of these have they acknowledged that in circumstances where people suffer from a progressive cognitive impairment, there is enormous risk for those empowered under an EPA if they engage in transactions that benefit themselves in ways that are not clearly for the benefit of the donor. At the hearing S acknowledged this, however, and indicated that she would now support the appointment of the Public Trustee as administrator. She was concerned though about how the appointment of an independent guardian would work. She and W expressed their commitment and desire to keep caring for AF and JF, to permit them to live at home for as long as possible.
Although I am satisfied that all parties genuinely believed that they were acting to protect and assist their parents, their actions have caused confusion and distress.
For that reason I am not satisfied that any of the children are suitable for appointment in accordance with s 44 of the GA Act. Specifically, I lack confidence that they will be able to act in the best interests of their parents as articulated in s 51 of the Act. In particular, I am not satisfied that they can act in a way that maintains supportive relationships.
S proposed herself as guardian and administrator. I find that her actions in regard to financial decision-making demonstrate that she is not suitable to be appointed as administrator. I acknowledge the deep commitment she and W have demonstrated in caring for AF and JF but all acknowledge that the family relationships are fractured to a level where S's appointment as guardian is not supported by her siblings.
I am also deeply concerned by the submission purportedly authored by AF sent to the Public Trustee by S. This is a typed document dated 4 March 2021 and signed by AF that included detailed historical and financial information regarding the timing and thoughts of AF when instructing S to take certain actions. Contrasted with this are the findings of Mr S in his investigation. He interviewed AF and JF on 26 February 2021 in their home. Neither JF nor AF could recall making an EPA in December 2020. AF observed to Mr S 'The one who does the most for us is S but all hell would break loose if she was in control'. It is inconsistent with this conversation with Mr S that AF could have authored the document of 4 March 2021. I note that the investigator of the Public Trustee shares my concerns regarding the validity of this document.
Both the investigators of the Public Trustee and the Public Advocate recommend that independent parties be appointed in the best interests of AF and JF. I am persuaded that this is the appropriate action to take.
The views and wishes of JF and AF
When Mr S interviewed AF and JF he asked if the appointment of S as EPA and EPG represented their wishes. They both indicated that they did not wish to upset any of their children and did not want to rely on one over the others. They both indicated that they believe they could rely on all three of the children. JF noted that it would be better to have someone independent so there would be no bias in decision-making, and for family harmony.
In regard to their living arrangements, AF noted that she was happy living at home and believed that without the assistance of S and W residing in the caravan at their property and helping them out they would not be able to stay at home.
I note that amongst the numerous submissions received by the Tribunal were included hand written notes from AF and JF including the phrase 'We could not survive without S and W staying with us' and expressing their wish to remain in their own home. JF writes 'We are happy as a family together'.
I rely entirely on the version of the views and wishes of AF and JF expressed in Mr S's independent report. For this reason, I will make orders within administration to support the current domestic arrangements so long as it is consistent with the decisions of the guardian and able to be accommodated within the represented person's estate without negatively impacting on the ability to meet their own care and maintenance needs.
Scope of the order
It is apparent from the medical evidence that JF is not capable of making simple or complex financial decisions in his own best interests, and he is therefore in need of a plenary administrator.
In regard to guardianship functions, medical treatment decisions need to be included in the guardianship order. Due to the level of conflict between the siblings and the incapacity of their spouse, neither AF, and JF has a family member appropriate to take on the role under s 110ZD of the GA Act. I will therefore include this amongst the responsibilities of the Public Advocate as guardian.
Foreseeable decisions exist in regard to where and with whom AF and JF should live, either permanently or temporarily, given that even if they remain at home with assistance from S, W, and support services, there may be situations in which respite care is required. Ongoing decisions are required regarding the support services available to AF and JF.
In his report Mr S recommends that due to the level of conflict in the family a contact authority may also be required. Given my belief that the expressed wish of AF and JF to see and be able to rely on all three of their children will be respected by their family members, I have not included that function at this time. I am confident that the delegated guardian from the Public Advocate's office will alert the Tribunal if that function is required within the authority of the order.
Term of the order
JF has a progressive condition and in these circumstances a five year order would be reasonable. However, given that he has three children who care about him and have at times during this proceeding indicated that they would be willing to serve as substitute decision-makers for him, but noting the high level of conflict and the deep concerns regarding their actions prior to this application, I will make a three year order. I hope that it may be possible after that time to consider appointing a family member for at least some of the authorities required.
The decision of the Tribunal
For the reasons above on 9 March I made the following orders:
The Tribunal declares that the represented person, JF is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
1.The order made on 22 January 2021 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 $500 per annum on gifts on behalf of the represented person.
4.The enduring power of attorney dated 23 May 2019 and 1 December 2020 by which the represented person appointed S to be their attorney, is revoked.
5.The administrator is authorised to continue with the long standing practice of the represented person to permit S and W to live in their caravan at his property at Clarkson, Western Australia and for the represented person to continue to meet the costs of the rates (council and water) and utilities. The administrator is to take into account any decision of the guardian regarding where and with whom the represented person should live and the value of the estate.
6.In addition to the gifting authority at order 3, the administrator is authorised to take into account in the determination of any allowance for discretionary spending by the represented person, his desire to pay for other family members' refreshments on social outings, taking into account the value of the estate.
7.The administrator is directed to seek a review if the administrator forms the view that orders 5 and 6 affect the ability of the represented person's estate to meet the care and maintenance needs of the represented person.
8.The administration order is to be reviewed by 9 March 2024.
Guardianship
9.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); and
(d)to determine the services to which the represented person should have access.
10.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.
11.The guardianship order is to be reviewed by 9 March 2024.
The Tribunal notes:
JF made enduring powers of attorney on 23 May 2019 and 1 December 2020 appointing S (with GJF as substitute attorney in the enduring power of attorney dated 23 May 2019).
The Tribunal orders:
1.The enduring powers of attorney dated 23 May 2019 and 1 December 2020 by which the represented party appointed S and G to be their attorney are revoked.
The Tribunal notes:
JF made enduring powers of guardianship on 23 May 2019 and 1 December 2020 appointing S (with G as joint enduring guardian in the enduring power of guardianship dated 23 May 2019).
The Tribunal orders:
1.The enduring powers of guardianship dated 23 May 2019 and 1 December 2020 by which the represented party appointed S and G to be their guardian, are revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
28 APRIL 2021
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