JG
[2021] WASAT 83
•27 APRIL 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JG [2021] WASAT 83
MEMBER: DR E MARILLIER, MEMBER
HEARD: 18 MARCH 2021 AND 27 APRIL 2021
DELIVERED : 27 APRIL 2021
PUBLISHED : 14 JUNE 2021
FILE NO/S: GAA 474 of 2021
GAA 1173 of 2021
GAA 1624 of 2021
JG
Represented Person
M
Third Party
Catchwords:
Guardianship and administration - Paranoid schizophrenia - Enduring power of attorney - Conflict of interest - Transfer of land - Less restrictive alternative - Reasonable diligence - Vulnerability to not being believed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 40, s 44, s 44(1)(b), s 51(2), s 65, s 68, s 68(1), s 84, s 97(1), s 107, s 110H, s 110N
Result:
Enduring power of attorney revoked
Enduring power of guardianship revoked
Public Trustee appointed as administrator
Public Advocate appointed as guardian
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| Third Party | : | Elliot Ryan |
Solicitors:
| Represented Person | : | N/A |
| Third Party | : | Butlers Lawyers and Notaries |
Case(s) referred to in decision(s):
Calverley v Green [1984] HCA 81; (1984) 155 CLR 242; (1984) 59 ALJR 111; (1984) ALR 483
McGregor v Nicol [2003] NSWSC 332
Wirth v Wirth (1956) 98 CLR 228
REASONS FOR DECISION OF THE TRIBUNAL:
Background
JG is a lady in her early 60s who was diagnosed with paranoid schizophrenia when she was aged 18. She lives on her own (since the death of her mother MJG), with support from family members who live locally and support workers funded through the National Disability Insurance Scheme (NDIS), as well as the community mental health service.
JG has two brothers, M (married to B) and A (married to R), who both live interstate, and a sister K who lives locally.
JG and MJG moved to Perth in 1981 after the death of JG's father. This was so as to live closer to K and her daughter KS. JG's home was purchased in 2005. M says that the funds for this purchase were entirely provided by MJG, however the title was registered in JG's name solely.
In 2005 JG executed a will in which she appointed K and M as her executors and trustees. She gave lifetime rights to MJG to use and enjoy the property, should JG predecease MJG. The will empowered the trustees to sell the property if needed to provide alternative accommodation for MJG, with any residue thereafter to be divided equally between K, M and A, or their children should they predecease her.
JG executed an Enduring Power of Attorney (EPA) and Enduring Power of Guardianship (EPG) on 10 April 2012 appointing M with A as substitute. Both instruments were unconditional and witnessed by police officers. M's submissions state that MJG entered residential care in May 2012. MJG passed away in 2014.
An application was made to the Tribunal under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) by JG's support coordinator. JG had expressed concern and distress about the actions taken by her brother M as her enduring attorney and enduring guardian.
The application sought the appointment of the Public Advocate and the Public Trustee as the guardian and administrator for JG. Concerns were expressed that JG was experiencing intimidation and neglect, that pension and NDIS funds were being withheld, and that the title to the house in which JG lives had been altered to be in M's name, and that this was being used to threaten JG's accommodation stability if she upset him.
The Tribunal made orders on 11 February 2021 pursuant to s 65 of the GA Act giving the Public Trustee the authority of a plenary administrator for JG (s 65 order), and requesting that it provide a report. On 17 February 2021 orders were made pursuant to s 97(1) of the GA Act referring the matter for investigation by the Office of the Public Advocate (OPA).
An urgent hearing was held on 18 March 2021, as the support workers were not being paid. The Public Trustee as administrator is not able to control NDIS funds. This responsibility lies with a guardian or enduring guardian if the plan is self-managed, as JG's was. M had terminated the services of the support coordinator after learning of the application to the Tribunal.
At the urgent hearing the applicant confirmed that JG appeared to be being pressured by family members, that support worker visits had been cancelled, and that she had concerns for JG's welfare.
JG appeared fearful. She stated repeatedly that she was at fault and should not have made complaints. She said 'I'm the problem, not them. Everybody is paid, I have no friends. My family do everything, they are not paid'. JG said that support workers had lied about M's actions financially. I asked her if people had been speaking to her about these matters and she said 'Yes'.
The applicant stated that this was not reflective of what JG had expressed to her in previous times. She stated that the goals for NDIS funding were reasonable and good and in the best interests of JG. She sought to reassure JG that she and the support workers do care for her. The applicant supported the making of a short-term guardianship order to permit the ongoing provision of support via NDIS.
The representative from OPA supported the need for a guardian to be available to make decisions as and when required. She felt this needed to be an independent appointment. Evidence before the Tribunal was clear and cogent regarding JG's lack of capacity and I made orders appointing OPA as the limited guardian for accommodation, treatment, contact and services decisions for a period of three months to allow the full investigation to be completed without compromising JG's welfare in the interim.
M had been required to file a statement of income and expenses, assets and liabilities, and copies of the EPA and EPG. This did not include a discussion of the decisions taken in regard to the title of the house or what had happened to the trust funds established in MJG's will. There was also reference to a 'family loan account'.
The Public Trustee and OPA had provided information indicating that there were changes to the title of the house on 4 February 2020 from sole ownership resting with JG to her gifting 75% of the home to her siblings.
As JG's financial interests were now being protected through the s 65 order, the administration decision was adjourned to be reviewed along with the guardianship order. M was ordered to file a statement addressing how his actions as attorney had protected the interests of the donor with particular reference to:
a)the gift of quarter shares of ownership of the property to family members on 27 December 2019, this property having been originally purchased by JG solely on 14 January 2004;
b)the $60,000 JG Trust Fund established as part of the estate of the late MJG in 2014;
c)the family loan from M and B for $25,000 being paid off at $300 per fortnight since March 2019; and
d)the 'family loan account' referred to in the records of the attorney filed with the Tribunal on 2 March 2021.
The s 40 administration application, the review under s 84 of the guardianship order made on 18 March 2021, and an application under s 110N of the GA Act seeking revocation of the EPG were considered concurrently at a final hearing on 27 April 2021.
I made orders revoking the EPG, the s 65 order and the EPA. I appointed the Public Trustee as the plenary administrator with a $1,000 gifting authority and directed the administrator to investigate the actions of M and to take whatever actions were necessary to secure JG's interests. I appointed the Public Advocate as the limited guardian for JG with the authority to determine medical treatment, accommodation and services decisions for her. Those appointments are for review by 27 April 2022.
At the hearing I provided a brief explanation of why I found the EPA and EPG did not stand as less restrictive alternatives that would meet the needs of JG. I also explained why I found that the actions in regard to the title of the home had created an insurmountable conflict of interest which prevented any of the family members being found suitable for appointment as guardian or administrator for JG at this time. I am providing these more detailed reasons in writing to ensure the family clearly understand why I made these findings.
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 his or her own health and safety; making reasonable judgments in matters relating to his or her person; of managing his or her 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 his or her freedom of decision and action;[3] and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned and take them into account.[4]
The evidence before the Tribunal
[1] GA Act s 4(2).
[2] GA Act s 4(3).
[3] GA Act s 4(4).
[4] GA Act s 4(7).
The Tribunal had a letter and a medical report from psychiatry registrar Dr R, a medical report from General Practitioner Dr C, a copy of JG's NDIS plan, service provider reports from the applicant MT and community mental health nurse SW, reports from the Public Trustee and OPA and copies of the EPA, EPG, JG's will, MJG's will, transfer of land documents of 14 January 2005 and 5 February 2020 and a current certificate of title for JG's home.
M provided statements of assets and liabilities, personal references and documents relating to valuation and renovations to JG's home and dental treatment costs for JG, a spreadsheet regarding the amounts loaned to JG by M and B and a spreadsheet detailing NDIS fund utilisation.
The hearings were attended by JG, her siblings and their spouses, her niece KS (K's daughter), the applicant and colleagues from her organisation, representatives of the community mental health service, the legal representative for M, and the Investigator Advocate from OPA (Investigator).
Does JG have capacity to make reasonable decisions in her own best interests in regard to financial and personal decisions?
Dr R's report stated that JG suffers from treatment resistant schizophrenia. She was diagnosed at age 18 and is currently treated on clozapine, and despite this experiences chronic persecutory delusions, auditory hallucinations and mood fluctuations. Her condition is static and Dr R finds JG not capable of managing simple, or complex financial decisions or legal matters.
Dr R indicates that JG requires significant support to manage finances. JG is unaware of how much income she receives or how much money goes towards any mortgage or bills. She needs assistance to write out shopping lists, draw out money for food and support to shop. Dr R says JG reports the Holy Spirit is telling her to give her house away, and if she had access to her finances she would do so. In addition she displays poor memory, poor executive functioning and disorganisation. Dr R states that JG's persecutory and religious delusional beliefs impact on her behaviour and ability to make decisions.
Dr R also states that JG lacks capacity in all aspects of personal decision-making. She notes that JG is compliant with her current treatment and medications but that she displays limited insight into her illness and her delusional beliefs impact on her decision-making. JG requires significant assistance to set up appropriate supports and services, and expresses that she would give away her house indicating vulnerability in regard to accommodation decisions.
Dr R indicated that JG currently lacks capacity to execute or revoke an EPA or EPG.
Dr C indicated that he was predominantly involved in managing JG's medical conditions. He was aware of her mental health diagnosis but was unsure in regard to her level of capacity in all areas.
It was uncontentious at hearing that JG is unable to make reasonable judgments in respect of matters relating to her person and unable to make reasonable judgments in respect of matters relating to all or any part of her estate as a result of her mental illness. I am satisfied that JG is therefore a person for whom both guardianship and administration orders could be made.
Do the EPA and EPG stand as less restrictive alternatives that meet JG's needs?
The EPA and EPG do not stand as less restrictive alternatives that meet JG's needs for the following reasons.
M's role as the EPA for JG is set out in s 107 of the GA Act. It states:
(1)The donee of an enduring power of attorney
(a)shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure[.]
When MJG died, JG continued to enjoy sole ownership of the home in which she lives, as she had done since its purchase in 2005. She inherited a sum of $60,000 held in trust for her by M and A. As trustees they were to 'pay to, or apply for the benefit of JG so much of the income or capital, or both, of the fund as they at their absolute discretion deem advisable for her proper maintenance, education, advancement and benefit'. The remainder of MJG's real and personal estate was divided in equal shares between K, M and A.
M's submissions state that the siblings had mounting concerns during 2019 that JG would give the house away. They formed the view that they needed to protect JG's interests to ensure her long-term ownership and residence at the home.
M admits that he did not seek professional advice and decided that the title to the property should be adjusted. Documents signed by JG and her siblings and dated 27 December 2019 (witnessed by a pharmacist) led to M and B, A and R, and K and KS (each pair as joint tenants) being 'gifted' an undivided quarter share as tenants in common. JG retained a 25% interest in her home.
M's submissions state that 'whilst doing this to protect JG's interest during her lifetime and to ensure she is able to continue residing in the property this arrangement is consistent with the wishes expressed by JG in her will'. I note that taking possession of an asset in anticipation of inheritance deprives the owner of the opportunity to utilise that asset to meet their needs during his or her life. It is reasonably foreseeable that it might be necessary in the future for JG, or her substitute decisionmaker, to realise the value of that asset to secure appropriate alternative accommodation should her care needs escalate.
Alternative options to secure JG's interests in the property, at a time when she was sufficiently unwell that M and her siblings had concerns that she might gift the title inappropriately, include the placement of a caveat on the title. This would have continued JG's 100% ownership of her most valuable asset, while protecting it against transfer.
Given the acknowledged concern that JG was considering gifting the property in a way that was not in her best interests, it is inexplicable that M and his siblings could think that she was capable of making a reasonable judgment in signing the transfer of land documents in which she gifted them 75% of her most valuable asset.
Even if M felt she had capacity to make decisions in her own best interests in regard to the transfer of the property, given that he was one of the beneficiaries of this transfer, then it should have been evident to him that JG required independent advice to consider whether or not to undertake a transaction that appears to prejudice her interests and benefit her substitute decisionmaker.
If M was making this decision on JG's behalf because she was incapable of making reasonable judgments in regard to her estate, then he should have signed the document that effected the transfer.
M's submissions state that the new co-owners discussed with JG that she could continue to live at the house, that she would not need to pay rent and that in the event her health deteriorated and there needed to be a sale the co-owners would sell and use the proceeds toward JG's care. No legal document was executed to evidence that intent.
M's legal representative expressed the view that a resulting trust had occurred, the effect of which was that the new co-owners held their shares on trust for JG. He referred to Calverley v Green.[5] I note this decision makes it clear that the intention of the person making the gift is determinative.[6]
[5] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242; (1984) 59 ALJR 111; (1984) ALR 483 (Calverley v Green).
[6] Calverley v Green at 485 and 488.
I asked the case managers from the community health service if JG would have been in a position to make a decision like that and understand the potential ramifications for her in 2019 or early 2020.[7] They responded '[b]oth of us are shaking our heads here. Both of us say no'.
[7] ts 7, 27 April 2021.
The transfer of 75% of JG's interest in the property immediately placed M in an untenable conflict of interest. The submission that a resultant trust was created seems to me on its face to be an attempted justification for the transaction well after the event.
When MJG purchased the house in 2005 and registered the title in JG's name, JG became the legal owner of the property. There is no evidence before the Tribunal to indicate a contrary intention of MJG than that the property belonged to JG.
When the 'gift' of 75% of the value of the house was made in 2019, JG was so unwell that her siblings believed she was at risk of making decisions that were not in her own best interests. As already stated there were means available to M as JG's attorney to protect the property such as a caveat and in my view M was obligated to seek legal advice on how best to protect JG's interests.
M's submissions go on to cite McGregor v Nicol[8] and state that the siblings do not suggest that JG intended for them to receive beneficial title, and that their relationship with JG does not give rise to the presumption of advancement. I note the point in Wirth v Wirth[9] that 'counsel [were] content to treat the dealing as a voluntary transfer and it was this circumstance which gave rise to a discussion whether the presumption of advancement operated'. I am not satisfied that the transfer of title in JG's case can be seen as voluntary.
[8] McGregor v Nicol [2003] NSWSC 332.
[9] Wirth v Wirth (1956) 98 CLR 228.
It is not necessary for me to resolve this matter to determine whether JG is in need of an administrator.
M's submission does not deal adequately with the failure to seek independent legal advice, or to utilise the less costly protection without diminution in JG's interest that could have been achieved through the lodging of a caveat on the property.
The application and the service provider report from MT, and the medical report from Dr R indicate that JG had expressed concerns about the decisions M was making for her. Dr R's letter to the Tribunal of 9 March 2021 states '[JG's] current EPA/EPG arrangements are causing her significant distress. She believes her brother is mismanaging her affairs'. Dr R also notes that JG does not have capacity to revoke the existing EPA/EPG or execute new authorities. MT's report of 3 February 2021 states '[M] has placed the family home in his name which leaves [JG] very anxious about upsetting him for fear that he will "kick her out on the streets"'.
This evidence makes it clear that JG had some understanding of the potential effect of the change in title. It caused her distress and anxiety regarding the security of her accommodation.
I find the decision in regard to the title of the property shows that M has not fulfilled his obligations under s107 of the GA act. He has not acted with reasonable diligence (in that he did not seek independent advice either for himself or JG) and he has made a decision that does not necessarily protect the interests of JG and has caused her distress. Additionally the decision appears to convey a benefit to himself and has in effect created an insurmountable conflict of interest for himself, his siblings, and his niece in regard to JG's finances and accommodation decisions.
I also have concerns about the effect of the decisions by M as attorney which have led to renovations being undertaken on the property which have left JG in debt to M and B for a sum of $26,880 on top of expenditure of all of her inheritance under the trust fund ($60,000) and $15,000 of her personal savings. In addition, a further $15,164 of 'loans' have been made from M and B to JG to cover dental work, purchases of furniture and a television as well as the cost of attending a wedding in Townsville. M took $24,000 of this money out of his superannuation and is charging JG 6% per annum interest on this amount as 'lost income on super'. The consequence of these decisions is that repayments set by M of $400 a month[10] along with regular expenses leave JG with between $60 and $180 per month for discretionary spending. It is not clear to me that JG had any say in this. M has also in 2019 (without obtaining professional advice) registered a mortgage in JG's name on her remaining 25% of the property, and in his submissions says this was to protect her interests given the concerns about her mental health.
[10] Exhibit F - M submissions - Cash Flow Budget - JG – 1/6/2021 to 31/5/2022, dated 18/4/2021.
Section 110H of the GA Act states that an enduring guardian must act in the best interests of a person as described in s 51(2) of the GA Act. I am not satisfied that M has done this, particularly with respect to acting:
…
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person[.]
Given the conflict of interest that has been created in regard to accommodation, the EPG cannot stand as an adequate protection for JG in regard to personal decisions.
I note that the community mental health team and JG's dentist stated that they had no difficulties liaising with M, and that they felt he made health decisions in the best interests of JG.
I also note the evidence of the applicant and the Investigator that M did not appear to understand aspects of the NDIS plan or the role of the service co-ordinator, and that he had terminated contracts rather than engaging constructively around concerns raised. The applicant also indicated that M refused requests by JG for funds to be applied in ways that were reasonable and in her best interests, when there were sufficient funds available (some 30% of the NDIS plan).
I note the evidence of M and the community mental health team that as a result of her illness, JG suffers from persecutory delusions, and can at time make accusations against family members, health professionals and support workers that are not based in reality.
However, in this case, there is documentary evidence that shows that decisions have been made that are not in her best interests (however good the intentions may have been), and that JG's concerns regarding M's decisionmaking are not delusional.
JG is vulnerable because of her illness, not only to experiencing persecutory delusions, but also to not being believed when in fact she is experiencing neglect, abuse or exploitation.
My observation of JG in the two hearings also leads me to be highly concerned about her ongoing vulnerability to influence, with statements such as:
…
The [name] family have got something to lose.
…
… I don't trust anybody. I don't even trust myself. … I can't have children. That has been said, and I've done all the rules, and that's - I haven't been involved with men … And I do know my place, and it has been pointed out to me by [M], and that's correct.
…
[A] is the same.
…
My place is to stay out[.]
…
Stay out of the marriages, and I've stayed out because this complaint – it brings the whole family down. And whoever was behind this – I've made an enemy in Perth[.]
…
There have been lies told.
…
Well [M] is in my best interests. He might be rough. But he is a very, very good man.[11]
…
I'm the problem.[12]
…
[11] ts 43-45, 27 April 2021.
[12] ts 48, 27 April 2021.
Noting the requirements of s 4(2) that my primary concern must be the best interests of the person in respect of whom an application is made, but also s 4(4) that an order shall not be made if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action, I am comfortably satisfied that the EPA and EPG cannot meet JG's needs for the reasons above, and therefore both those instruments should be revoked. This would leave JG vulnerable as she cannot make reasonable judgments in regard to her person or her estate, and I therefore find she is in need of both an administrator and a guardian.
Who should be appointed?
Section 44 and s 68 of the GA Act set out what the Tribunal must consider when appointing a guardian and an administrator respectively. I cannot appoint a person as guardian whose interests conflict or may conflict with the represented person.[13] This precludes the appointment of any of the family members who were all recipients of an interest in the house through the property transfer.
[13] GA Act s 44(1)(b).
An administrator must be a person I am satisfied will act in the best interests of the represented person,[14] and the transfer of property to themselves, without seeking independent legal advice either for themselves or JG, means similarly that I cannot find any of the family members suitable for appointment.
[14] GA Act s 68(1).
I will therefore afford JG the protection of the appointment of the Public Advocate as guardian and the Public Trustee as administrator.
What should the scope and the term of the orders be?
JG's disability affects even day to day budgeting, and she therefore requires a plenary administrator. She enjoys a close relationship with her family, so I will include a gifting authority.
JG is a client of NDIS with complex needs; she clearly needs an advocate in regard to accommodation, and requires ongoing medical and dental treatment decisions. I will therefore include authorities to permit the guardian to make decisions in these areas.
The need for a contact authority was discussed at hearing - the Investigator stated that as no individual had been identified from whom JG needed protection, there was no clear live issue. If such an authority becomes required, the matter can return to the Tribunal.
Given the family's keenness to be considered for appointment, and my concerns for JG's welfare, I will make these orders reviewable in one year's time. This affords them the opportunity to resolve the conflict of interest and take other actions as necessary to demonstrate their suitability for appointment with reference to the relevant sections of the GA Act. It affords me the opportunity to assess whether JG's wishes for a family appointment as expressed at hearing are still her wishes, and if such an appointment may be in her best interests for some or any of the authorities required.
Orders
On 27 April 2021 I made the following orders:
GAA 474 of 2021
The Tribunal declares that the represented person, JG is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
The Tribunal orders:
Administration
1.The order made on 11 February 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 $1,000 per annum on gifts on behalf of the represented person.
4.The enduring power of attorney dated 10 April 2012 by which the represented person appointed M to be their attorney, is revoked.
5.The Public Trustee is directed to investigate the actions of M as enduring attorney for the represented person, including (but not exclusive to) the transfer of three quarters of her interest in [residential address details] registered at Landgate on 5 February 2020 and to take whatever actions are necessary to secure the represented person's interest in the property.
6.The administration order is to be reviewed by 27 April 2022[.]
GAA 1173 of 2021
The Tribunal declares that the represented person, JG 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;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
The Tribunal orders:
Guardianship
The guardianship order dated 31 March 2021 is amended so that it now reads:
1.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;
2.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.
3. The guardianship order is to be reviewed by 27 April 2022[.]
GAA 1624 of 2021
The Tribunal notes:
JG made an enduring power of guardianship on 10 April 2012 appointing M.
The Tribunal orders:
1.The enduring power of guardianship is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
14 JUNE 2021
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