JJ
[2025] WASAT 48
•4 JUNE 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JJ [2025] WASAT 48
MEMBER: MS F CHILD, MEMBER
HEARD: 12 FEBRUARY AND 19 MARCH 2025
DELIVERED : 19 MARCH 2025
PUBLISHED : 4 JUNE 2025
FILE NO/S: GAA 6408 of 2024
GAA 6410 of 2024
GAA 840 of 2025
JJ
Represented Person
Catchwords:
Guardianship and administration - Application for the appointment of a guardian and administrator - Represented person with complex chronic health problems and progressive cognitive impairment - Whether existing enduring powers of attorney and guardianship can operate as less restrictive alternatives to orders being made - Enduring power of guardianship invalid as purporting to appoint joint and several enduring guardians - Wishes of represented person including as to future treatment - Enduring attorneys appointed jointly and severally in conflict - Refusal by attorney to share financial information with the other attorney - Obligations of donee of enduring power of attorney to act with reasonable diligence - Liability for failure to do so - Donee unable to renounce during incapacity of the donor - Whether a need for orders - Ongoing conflict - Public Advocate and Public Trustee appointed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 40, s 43(1)(b), s 43(1)(c), s 44, s 64(1), s 68, s 102, s 107, s 107(1), s 107(1)(a), s 107(1)(c), s 108(1a), Pt 9A, s 110B, s 110B(b), s 110E, s 110J, s 110K, s 110N, s 110ZD, s 110ZD(3), s 110ZD(4)
Result:
Public Advocate appointed limited guardian
Public Trustee appointed plenary administrator
Enduring power of attorney revoked
Enduring power of guardianship declared invalid and revoked
Category: B
Representation:
Counsel:
| Represented Person | : | In Person - by Videolink |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
EW [2010] WASAT 91
EW [2021] WASAT 111
FY [2019] WASAT 118
FY [2019] WASAT 118
GC and PC [2014] WASAT 10
GG [2021] WASAT 133
KS [2008] WASAT 29
MBC [2016] NSWCATGD 36
Parker v Higgins [2021] NSW SC 1516
Re C [2012] WASAT 50
SAL and JGL [2016] WASAT 63
Szozda v Szozda [2010] NSWSC 804
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These are the reasons of the Tribunal on applications made under the Guardianship and Administration Act1990 (WA) (GA Act) in respect of JJ (represented person).
The represented person is a 79-year-old woman who has lived in a residential aged care facility (RACF) since 18 October 2024. She was widowed as a young woman and has two adult daughters MGB and MJ.
On 6 November 2024 the represented person appointed both her daughters as enduring attorneys and enduring guardians in enduring powers of attorney and guardianship (2024 EPA and 2024 EPG) both of which were prepared by the represented person's solicitor and witnessed by him.
Applications before the Tribunal
An application was filed with the Tribunal on 5 December 2024 by MGB (the applicant) seeking the appointment of a guardian and an administrator of the estate of the represented person pursuant to s 40 of the GA Act.
The applicant said that although she had been appointed under the 2024 EPA and 2024 EPG, she did not have a copy of the documents and could not obtain information from her sister, MJ, (the other appointed enduring guardian and attorney) about the management of their mother's affairs.
The applicant said she was not advised of what was happening with the represented person and had concerns about how the represented person's finances were being managed. The applicant proposed herself for appointment as administrator but in the alternative suggested the Public Trustee could be appointed for the protection of the represented person's assets.
The applicant asserted that the represented person had multiple health problems and a need for clear decision-making about medical treatment for her and that a guardian should be appointed.
In case management orders made on 6 December 2024 the application was also treated as an application pursuant to s 110N of the GA Act to revoke or vary an EPG.
The case management orders referred the applications for investigation and report by the Office of the Public Advocate. MJ was ordered to file the 2024 EPA and 2024 EPG and statements about the operation of those powers including financial information.
In her report and in the first hearing the Public Advocate's investigator (investigator) questioned whether the 2024 EPG was validly made, and I invited the applicant to make an oral application pursuant to s 110K of the GA Act for a declaration of validity or invalidity of the 2024 EPG.
Hearings
There were two hearings of the applications, the first on 12 February 2025 which was adjourned for a specialist capacity assessment of the represented person.
All the applications were determined at the second hearing on 19 March 2025 and orders made appointing the Public Advocate as limited guardian of the represented person and the Public Trustee as the plenary administrator of her estate. I advised I would provide written reasons for the decisions made.
Legislation and principles to be observed
To appoint an administrator of the represented person's estate I must be satisfied that she is unable by reason of a mental disability to make reasonable judgments about all or any part of her estate and that she is in need of an administrator of her estate.[1]
[1] GA Act, s 64(1).
To appoint a guardian for the represented person I must be satisfied that she is:[2]
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments about her person; or
(c)is in need of oversight care or control in the interests of her own health and safety and is in need of a guardian.
[2] GA Act, s 43(1)(b) and s 43(1)(c).
If satisfied that a represented person is a person for whom orders can and should be made, I must then consider who should be appointed[3] and other matters such as the scope of the authority and the duration of any orders made.
[3] GA Act, s 68 and s 44.
In respect of the applications in respect of the 2024 EPG, the GA Act has the following provisions:
Part 9A of the GA Act includes the formal requirements for execution of an EPG, the operation of EPG's and the Tribunal's jurisdiction to declare the validity or invalidity of an EPG and to intervene in an EPG to revoke or vary it.
Specifically, s 110B and s 110E sets out the formal requirements for making an EPG:
110B.Appointing enduring guardian
A person who has reached 18 years of age and has full legal capacity may make an enduring power of guardianship appointing —
(a)a person as the enduring guardian of the person; or
(b)2 or more persons as the joint enduring guardians of the person.(emphasis added)
110E.Formal requirements
(1)An enduring power of guardianship is not valid unless —
(a)it is in the form or substantially in the form prescribed by the regulations; and
(b)it is signed by the appointor or by another person in the presence of, and at the direction of, the appointor; and
(c)the signature referred to in paragraph (b) is witnessed by 2 persons —
(i)both of whom are authorised by law to take declarations; or
(ii)of whom —
(I)one is authorised by law to take declarations; and
(II)the other has the qualifications specified in subsection (2);
and
(d)it is signed by the witnesses referred to in paragraph (c) in the presence of —
(i)the appointor; and
(ii)the person who signed it at the appointor's direction (if applicable); and
(iii)each other;
and
(e)it is signed by each person being appointed as an enduring guardian or substitute enduring guardian (an appointee) to indicate the appointee's acceptance of the appointment; and
(f)the signature of the appointee is witnessed by 2 persons —
(i)both of whom are authorised by law to take declarations; or
(ii)of whom —
(I)one is authorised by law to take declarations; and
(II)the other has the qualifications specified in subsection (2);
and
(g)it is signed by the witnesses referred to in paragraph (f) in the presence of the appointee and each other.
(2)A witness referred to in subsection (1)(c)(ii)(II) or (f)(ii)(II) must be a person —
(a)who has reached 18 years of age; and
(b)who is not —
(i)the appointor; or
(ii)the person who signed the enduring power of guardianship at the appointor's direction (if applicable); or
(iii)an appointee.
….
The jurisdiction of the Tribunal to intervene in an EPG is as follows:
110J.Who may apply
A person who, in the opinion of the State Administrative Tribunal, has a proper interest in the matter may apply to the Tribunal for a decision under this Division.
110K.Declaration about validity of enduring power of guardianship
(1)The State Administrative Tribunal may declare that an enduring power of guardianship is valid or invalid.
(2)A declaration made under subsection (1) has effect according to its terms.
…
110N.Revocation or variation of enduring power of guardianship
(1)The State Administrative Tribunal may make an order —
(a)revoking an enduring power of guardianship; or
(b)revoking the appointment of one or some of the persons who are joint enduring guardians under an enduring power of guardianship if the person or each of the persons —
(i)wishes to be discharged; or
(ii)has been guilty of such neglect or misconduct or of such default as, in the opinion of the Tribunal, renders the person unfit to continue as an enduring guardian; or
(iii)appears to the Tribunal to be incapable by reason of mental or physical incapacity of carrying out the person's duties;
or
(c)revoking or varying any of the terms of an enduring power of guardianship.
(2)If the Tribunal makes an order under subsection (1)(b), subject to the terms of the enduring power of guardianship, the remaining enduring guardian or guardians may act under the power.
(3)An order made under subsection (1) may be expressed to come into effect at a time earlier than immediately after it is made.
In all proceedings brought under the GA Act the Tribunal must observe the principles as set out in s 4 of the GA Act.
The principles provide that the primary concern of the Tribunal is the best interests of the represented person or person for whom an application is made.
The principles also provide that the represented person is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.[4]
[4] GA Act, s 4(3).
The principles also say that orders should not be made unless they are needed; if the needs of the person can be met by less restrictive means then orders should not be made for her.[5] If an order is made it should be in the least restrictive terms possible.[6] A plenary guardian should not be appointed if a limited order will meet the needs of the represented person.[7] Finally, the principles require that in considering any matter relating to a represented person, the Tribunal should seek to ascertain her wishes as expressed at the time or gathered from her previous actions.[8]
[5] GA Act, s 4(4).
[6] GA Act, s 4(6).
[7] GA Act, s 4(5).
[8] GA Act, s 4(7).
The questions to be decided in the present applications are:
(a)Is the presumption of capacity set aside and is the represented person a person for whom a guardian and administrator may be appointed?
(b)If so, is she in need of those orders or are there less restrictive means by which her needs may be met?
(c)Do the 2024 EPA and 2024 EPG provide effective means by which financial and personal decisions may be made for the represented person?
(d)If the represented person is in need of guardianship and administration orders, who should be appointed in those roles?
(e)What are the wishes of the represented person?
(f)In respect of the applications pursuant to s 110N and s 110K of the GA Act in respect of the 2024 EPG, does the applicant have a proper interest in bringing the applications and should orders be made to declare the EPG valid or invalid and/or to revoke it?
Evidence and material before the Tribunal
A number of documents were filed including:
(a)the application;
(b)the 2024 EPA made by the represented person on 6 November 2024 which appoints MJ and the applicant jointly and severally as attorneys. The 2024 EPA is unrestricted and is styled to continue in force notwithstanding the subsequent legal incapacity of the donor. It was prepared and witnessed by the represented person's solicitor[9] and the acceptance was signed by MJ on 6 November 2024 and by the applicant on 7 November 2024;
(c)the 2024 EPG made by the represented person on 6 November 2024. The 2024 EPG appoints MJ and the applicant as enduring guardians. Although clause 1 of the document has the heading 'joint enduring guardians' the words following the names of the two appointees states they are 'to be my joint and several enduring guardians'. At clause 5 the following directions are given to the guardians: '[my] enduring guardians are to perform their functions in accordance with the following directions': Directions are then given in the following terms 'I direct my medical providers not to resuscitate me from any deteriorated health condition due to the following circumstances:
(ii)if I am in the terminal phase of a terminal illness; or
(ii)if I am ever suffering from a neurological illness or injury from which I am unlikely to have a functional recovery, I am not able to recognise my family and need a high level of nursing care; or
(iii)if I am so seriously ill or injured that I am unlikely to recover to the extent that I cannot live without the use of life-sustaining measures; or
(iv)if I am a permanent unconscious (in a coma); or
(v)if I am in a persistent vegetative state; or
(vi)if I am so seriously ill that if I am unlikely to recover to the extent that I cannot live without the use of lifesustaining measures or 24-hour full-time care;
nor provide life-support apart from ongoing pain relief and I hereby authorise my guardians herein to act in accordance with my directions'.
[9] The other witness was a law clerk.
Earlier in the document the guardians are authorised to decide on any medical issues including admission into and out of hospital, admission into and out of a full-time residential nursing facility or nursing hospital or hospital annex.
A letter addressed to 'whom it may concern' regarding the represented person from Dr KS, a general practitioner, states:
I am writing to inform I have examined [the represented person] and I can assure she has no cognitive impairment and she has full mental capacity to make her own decision.
A standard medical guide completed by Dr KS dated 21 February 2025 reports he has known the represented person for three months and had seen her on seven occasions and conducted cognitive assessments. Dr KS reports the represented person has a diagnosis of schizophrenia which is described as 'stable'. Dr KS reports that MJ accompanies the represented person and provides support and assists in communication. The represented person's condition is said to be static. Dr KS gives the opinion that the represented person is capable of simple financial matters. He is unsure of her capacity for complex financial matters but states the represented person is capable of legal matters and capable of medical treatment decisions. He is unsure of her capacity to make decisions about her accommodation, but states the represented person is capable of making decisions about services and capable of executing an EPA, an EPG and an Advance Health Directive.
An Aged Care Assessment of the represented person dated 23 February 2022 refers to longstanding mental health diagnoses experienced by her with a number of acute inpatient admissions to mental health units. Regular short-term memory problems are reported. The represented person's home was reported by MJ to the assessor as having 'hoarding and squalor issues'. At the time of the assessment the represented person was reported to have 'reasonable insight' and appeared logical and sequential with 'cognition intact'.
A discharge summary from a regional hospital dated 6 August 2024 reports on an admission from 25 July 2024 to 6 August 2024 noting that '[the represented person] is a 78-year-old lady from home, alone who was admitted with slowly progressive functional and cognitive decline'. The medical history recorded includes 'diagnoses of: bipolar disorder, heart block pacemaker inserted in August 2017, diabetes myelitis Type II CKD [chronic kidney disease] stage V and hypertension'. Progressive functional and cognitive decline is reported with the comment 'not able to cope at home-for discharge planning'. An incidental finding of 'cerebellum meningioma' is also reported.
A discharge summary from a hospital in November 2024 reports an attendance by the represented person at the emergency department for shortness of breath and that it was '[d]ifficult to elicit full history from patient' … 'collateral [was] given by her daughter' who referred to planning for dialysis and occasional periods of confusion.
A service provider report from the facility manager at the RACF reports the represented person was admitted on 18 October 2024 and is a permanent resident receiving high care support. She is frequently visited by daughter MJ who supports her with outings for social engagement and medical appointments. Multiple health problems are reported including cognitive impairment. A Montréal Cognitive Assessment of the represented person completed on 24 June 2024 with a score of 16/30 is attached to the report. That score reportedly indicates a moderate cognitive impairment. A Mini-Mental State Examination (MMSE) conducted on 28 October 2024 by an occupational therapist at the facility reports the represented person scored 16/30.
A letter dated 7 January 2025 to MJ from the represented person's solicitor encloses the original signed 2024 EPA and 2024 EPG advising they provide sufficient authority to act on the represented person's behalf. The letter goes on to say 'I do not have any other signed attorney documents on my file. The single appointment of yourself as the attorney was in draft and was never signed by your mother'.
Submissions from the parties
MJ advises she is the younger daughter of the represented person and returned to Western Australia in 2020, as the represented person's health was declining, and MJ believed the represented person was not receiving the amount of care she required. MJ refers to the represented person's health problems and describes her health as declining over the decade. The submission refers to the represented person asking MJ to be her guardian and her enduring attorney and to help her organise her finances. MJ reports that 'we filled in the Public Advocate's forms in June 2024 however [the represented person] wanted to see her lawyer [name deleted] and have these matters drawn up and filed along with the slight alteration to her will'. In her submissions MJ makes allegations about the historical conduct of the applicant including in childhood and asserts that the applicant has had 'nothing to do with [the represented person's] everyday living and welfare and never has'. The submission goes on to say, 'mum thought it may be a good idea to have [the applicant] included as a 'joint' guardian and EPA. Only for the simple fact of the "rage that [the applicant] gets in when she doesn't get her own way" '.
The submissions from MJ also include copies of text messages between MJ and the applicant which relate to the will of the represented person and the proposed distributions under it. The applicant questions the validity of the will. Copies of email correspondence from 2017 and 2020 also refer to financial matters between the applicant and MJ.
A statutory declaration made by the represented person on 23 January 2025, filed with other documents by MJ states in part:[10]
I would like my daughter [MJ] to continue as my sole guardian and in enduring power-of-attorney …
I am very satisfied with the work she has been doing over the past decade.
It has enabled me to live a good life with the care that I need. With respect and dignity.
[10] Statutory Declaration of JJ dated 23 January 2025 (Folio 13).
A statement of assets and expenses dated 16 January 2025 filed by MJ. A statement of Centrelink aged pension bank statements including a retirement saving accounts of the represented person. Receipts for chemist accounts and garden cleanup and tree removal in the amount of $7,000 and other financial records.
A submission from a friend of the represented person, SR, states that the represented person told her she 'was happy with the current situation and does not want (the applicant) having any power or authority over her or her affairs and supports the continuation of the status quo.
A submission from a former neighbour of the represented person states that '[MJ] was acting on [the represented person's] wishes to be her guardian and EPA'. That MJ had always been there for her and that the represented person has always and still is of sound mind. The neighbour states she had rarely seen the applicant.
A report of the investigation conducted by the investigator
The investigator reports interviews with the parties including the represented person and her solicitor. The solicitor who drew the 2024 EPA and 2024 EPG advised the investigator that he had known the represented person since the 1980s as she had worked in his practice as a secretary. He said he had undertaken his own assessment (of her capacity to execute the documents) prior to their execution and considered that the represented person was capable of making them.
The investigator reported that MJ had advised that the represented person had recently seen a private renal specialist and was to commence dialysis and had signed the documents and consents for a preliminary procedure without the specialist raising any concern about her capacity.
The investigator noted that the represented person was initially seeing the general practitioner at the RACF however after a dispute between the doctor and MJ about medications, the doctor declined to see the represented person until the outcome of the Tribunal's hearing. MJ had taken the represented person to another doctor.
The investigator reported that when interviewed the represented person had presented with short-term memory impairment: she had advised the investigator that she had been in the facility for two weeks only and could not recall why she had attended at the hospital the previous week. The represented person had told the investigator during the interview that she wanted MJ only to act for her.
The investigator's submission was that the 2024 EPG was not valid as it contained directions which might be made in an Advance Health Directive not in an EPG. In addition, MJ had indicated to the investigator that the represented person wished to be resuscitated but this was contrary to the directions recorded in the 2024 EPG.
More fundamentally the investigator argued that the appointments of enduring guardians made in the 2024 EPG were jointly and severally which is not consistent with the provisions in the GA Act which provides only for the joint appointment of enduring guardians. Further, she submitted that there was no election as to what was to happen in the event of the death of the joint enduring guardian.
Documents filed by the applicant including a note and card from the represented person to her which the applicant asserts demonstrates that she and the represented person are not estranged
A report dated 13 March 2025 from Dr PL, a consultant geriatrician. Dr PL had assessed the represented person following the adjournment of the first hearing.
Dr PL reports the represented person has diagnoses of 'schizophrenia, Bipolar Affective Disorder and neurocognitive disorder with mixed aetiology such as Alzheimer's and vascular brain disease'. He reports a 'PET brain scan had been ordered to investigate'. An MMSE score of 17/30 with serial sevens and 20/30 with spelling is reported.
Dr PL describes the represented person's condition is a progressive one: he states he is unsure of her capacity regarding simple financial matters as she does not purchase discretionary or personal items relying on staff and family for these. He gives the opinion that the represented person is incapable in the sphere of complex decisions and is unaware of her financial circumstances unaware of her superannuation et cetera. He reports that the represented person advised that in respect of legal matters and medical decision-making she would need her daughter to help her. In respect of accommodation and services decision-making, Dr PL's opinion is that the represented person is incapable as she is unaware of how she would do this and indicated she would need her daughter to help her. The doctor was unsure if the represented person now has capacity to execute an EPA and EPG.
The referral of the represented person for the PET scan made by Dr PL was also submitted. The referral states 'MMSE 20/30 increased tone with cog wheeling, history of schizophrenia, bipolar affective disorder on paliperidone depot. She may have developed Alzheimer's disease'.
Other documents were filed including a 2019 will of the represented person and medical records referring to another person but I do not consider these relevant to the decisions to be made on these applications.
Proceedings in the Tribunal
First hearing
The applications were first heard on 12 February 2025. The represented person and her daughter, MJ, attended by video link from the residential aged care facility. The applicant, her spouse (the son-in-law of the represented person) and the investigator all attended in person.
The applicant said that although she had been appointed under the 2024 EPA and 2024 EPG, she was receiving no information about her mother's affairs from MJ. MJ had not replied to requests for information, and she had been blocked on Facebook by MJ. The applicant said she was concerned that the represented person's house would be sold, the money would disappear and the represented person would be left with no money and end up in a terrible nursing home.[11] The applicant said that the represented person's term deposit had been 'broken open', 'a lot of money had been spent' on fixing up the represented person's house including landscaping which the applicant said was unnecessary. The applicant said that MJ had to borrow money from her as she had insufficient funds to pay a tradesperson for work on the represented person's house, but this had not been paid back. The applicant said that MJ could not manage money. She said she had given MJ $2,000 for medical treatment as she had no funds herself. The applicant asserted that MJ had lost money on an ill-advised investment 20 years ago and had told her that she had gone bankrupt.[12] The applicant said that in the past the represented person had told her that MJ's son, who has a brain injury, had threatened her with a knife, had taken her credit card and was aggressive to her and had financially exploited her.[13]
[11] ts 7, 12 February 2025.
[12] ts 37, 12 February 2025.
[13] ts 19, 12 February 2025.
The applicant said she was unsure whether the represented person needed a guardian or whether the 2024 EPG was in force. She said she had not been consulted about the represented person having an MRI which she, as a registered nurse, considered was not medically justified and likely made the represented person anxious and distressed. She said she was not sure whether the represented person was having dialysis as she had not been included in those conversations.[14]
[14] ts 17, 12 February 2025.
The applicant said that MJ had told her (through her sons, as MJ refused to contact her) that she should not visit the represented person as she had initiated the Tribunal proceedings.[15]
[15] ts 22, 12 February 2025.
MJ said that the represented person's current position was that she did not want the applicant to be her attorney or enduring guardian since the application had been filed in the Tribunal.[16] Although MJ said she had kept records of all receipts for expenditure made on behalf of the represented person, she agreed she had not provided them to the applicant and said she did not want to communicate with her since the application had been made to the Tribunal.[17] She described the application as 'her mother being taken to court'.[18]
[16] ts 27, 12 February 2025.
[17] ts 25, 12 February 2025.
[18] ts 28, 12 February 2025.
MJ confirmed that she had borrowed from the applicant and had in the past lost money on an investment in a business, but denied she was ever bankrupt. She proposed that she be the administrator.
MJ said she should also be the guardian of the represented person as she had been acting in that role for 10 years. The applicant disputed this saying that MJ had only returned to live in Western Australia in 2020.
In the hearing I asked the represented person for her comments or to respond to questions however she did not respond to questions. With prompting she said, '[MJ] has always been good to me'.[19] MJ said that the represented person was making her own decisions but advised that the represented person 'takes a while to process matters'[20] and 'was hard of hearing'.
[19] ts 39, 12 February 2025.
[20] ts 28, 12 February 2025.
It was clear from the evidence filed prior and that given by the applicant and by MJ in the first hearing that there was significant conflict and a lack of trust between them. The investigator submitted that the conflict between them meant that it was unlikely they could work together as attorneys.
The investigator submitted that as the available medical evidence regarding the represented person's capacity was in conflict the presumption of capacity in s 4 of the GA Act was not displaced and that either the applications should be dismissed or adjourned for further investigation.
Given the presentation of the represented person in the hearing and the reports of cognitive and functional decline recorded in the hospital records, together with the investigator's report of the represented person's apparent short-term memory loss I considered that it was in the represented person's best interests that a specialist assessment of the represented person's capacity to make reasonable judgments about her person and her estate was obtained before the applications were determined.
The hearing of the applications was adjourned to a date in May 2025 for the filing of a specialist assessment of the capacity of the represented person by a geriatrician.
The Tribunal received a letter dated 24 February 2025 from the facility manager of the RACF advising that a referral had been made for a capacity assessment of the represented person to a geriatrician, but the facility manager had concerns regarding clinical decisions for the represented person while awaiting the outcome (of the Tribunal's process). The letter advised as follows:[21]
[21] Letter from RACF dated 24 February 2025 (Folio 3 on GAA 840/2025).
[Represented person's] [general practitioner] have been requested to make a referral for a geriatrician … to assess [her] decision-making abilities however in the meantime the [eldest daughter] and [next of kin] [applicant] and [MJ] aren't supporting [the represented person] with clinical decisions rather being conflicting.
Clinical staff have had the [general practitioner] and [next of kin] [applicant] and [the represented person's] decisions overridden by the youngest daughter [MJ] in the two below situations.
•Injection (referral via [orthopaedic surgeon] not supported by GP or wanted by resident or [next of kin].
•Daughter [MJ] took resident to appointment for injection instead advising staff they were just going for coffee.
•Resident reporting on return to RACF of having the injection however was confused when it was done.
•Resident [JJ] has been recommended via a speech therapist to be on level 6 diet, daughter [MJ] is not adhering to this and [supplying] resident with normal textured diet with visiting.
Following receiving the applications, the hearing was brought forward to 19 March 2025.
Second hearing
At the reconvened hearing the facility manager advised that the represented person had been admitted to hospital on the previous weekend, was being investigated for prolonged vomiting with a query regarding aspiration pneumonia and was on oxygen.
In respect of her request for an urgent hearing because of conflict about medical procedures for the represented person, the facility manager confirmed that she had spoken to the represented person about the injection proposed and she had declined it - she did not want it.[22] The facility manager said she had also spoken to the general practitioner who did not recommend the injection and the applicant (who she described as the next of kin) agreed with this. She said that MJ had been informed of the decision by email[23] and when she had attended at the facility on the scheduled date, she had advised her that 'we're just going for coffee' when asked if she was taking the represented person for the injection. The facility manager said that the represented person had been returned to the facility confused and not orientated and without a proper handover.[24]
[22] ts 5 and 8, 19 March 2025.
[23] ts 9,19 March 2025.
[24] ts 6, 19 March 2025.
The facility manager said that the speech therapist had changed the represented person to a level 6 diet to avoid her choking or aspiration, but that staff had reported that MJ had been observed giving the represented person food in her room, which was a normal textured diet.
In relation to the injection MJ agreed she had taken the represented person for the injection and that she had told the facility manager that she and the represented person were going for coffee. She said she did not tell the facility manager that she was taking the represented person for an injection. She said she had received an email from the applicant advising her that the represented person did not want the injection and that it does not work and was too expensive.[25] MJ said she did not believe the facility manager that the represented person did not want the injection[26] and asserted that it was the represented person's choice (to have the injection) to treat pain and she had signed the consent form herself for the procedure. MJ said she had heard of an injection called Synvisc and had suggested this to the orthopaedic surgeon who agreed that it would be good for the represented person.[27] The letter from the orthopaedic surgeon filed by MJ refers to '[h]er daughter is requesting the injection of a joint lubricant into [the represented person's] right knee'.[28] MJ said that considering the represented person was going to require dialysis three times per week that this was important to her mobility.[29] MJ insisted that it was the represented person's decision.
[25] ts 9, 19 March 2025.
[26] ts 11, 19 March 2025.
[27] ts 8, 19 March 2025.
[28] GAA 6408/2025, letter dated 18 February 2025, filed 18 March 2025 by MJ.
[29] ts 9, 19 March 2025.
In respect of the level 6 diet MJ denied that she had ever been advised that the represented person was on a modified diet.[30] (It appeared to me that there may have been a breakdown in the communication of this to MJ when the RACF recognised the applicant rather than MJ as the next of kin of the represented person following the first hearing).
[30] ts 13, 19 March 2025.
In respect of the allegation that the general practitioner visiting the facility would not attend the represented person, MJ agreed she had taken the represented person to another doctor following a dispute with the general practitioner visiting the facility. MJ said the dispute involved the refusal by the doctor to prescribe the medication Ozempic for the represented person as it had been discontinued during the represented person's previous hospital admission as it was said to be unnecessary. MJ said that she had raised the issue with the general practitioners at the RACF and had sought a letter from the represented person's previous doctor. MJ said the doctors had confirmed that the medication was not needed by the represented person.[31] The facility manager confirmed that the represented person had been discharged from hospital, not charted for the medication as it was thought not to be needed and two doctors Dr J and Dr L who had seen her at the facility did not support its use by her.[32] MJ said the medication had previously been prescribed 2 years before by the represented person's former renal specialist but agreed the represented person had since been referred to another specialist.[33] MJ said that she had been upset about the refusal by the doctors to prescribe the medication and so had taken the represented person to another doctor. She said she had been 'quite blunt' with the doctor but denied reports by the facility manager that the doctor had refused to see the represented person at the facility because of 'threatening emails'.[34]
[31] ts 16, 19 March 2025.
[32] ts 17, 19 March 2025.
[33] ts 34, 19 March 2025.
[34] ts 17, 19 March 2025.
MJ asserted that there had been a delay in treating a urinary tract infection suffered by the represented person which had been detected by the new general practitioner prior to the first hearing but reported after that hearing. MJ said that the represented person 'went a few days without receiving medication from [the RACF] staff'. Subsequently her UTI worsened. So 'hence we have these problems'.[35] The facility manager said she did not believe that there had been a delay in treating the represented person but confirmed that the facility followed a process where medications had to be prescribed and charted and could not simply be accepted from a next of kin.[36] She also confirmed that the represented person's hospitalisation was not because of a UTI.[37]
[35] ts 13, 19 March 2025.
[36] ts 14, 19 March 2025.
[37] ts 15, 19 March 2025.
The applicant advised that the represented person was formally discharged from hospital two days prior to the hearing but before she could leave the premises, she had had an episode and had been readmitted and had a CT scan. The represented person had experienced two further episodes, but the applicant said she had not been told any details.[38] When the applicant had attended the hospital the kidney specialist nurse had advised her that the represented person did not require dialysis at the present time, as her kidneys were functioning and had been stable for 18 months. If dialysis was necessary, a fistula would be required but the applicant had queried whether there was a less invasive option of which she was aware from her work as a nurse.[39] This information had been given to the applicant the day before the hearing, but she advised that she had not yet advised MJ of it and agreed that MJ was learning of this information for the first time in the hearing.[40]
[38] ts 27, 19 March 2025.
[39] ts 29, 19 March 2025.
[40] ts 30, 19 March 2025.
MJ initially asserted that the applicant had not provided information about the represented person's hospitalisation, saying she had only learnt of it the day before the hearing. MJ had not advised the investigator of any communications she had received from the applicant.[41] MJ later agreed that she had in fact been advised of the presentation of the represented person to the emergency department on the day that it occurred and had been updated by the applicant.[42]
Is the represented person a person for whom orders may be made?
[41] ts 39, 19 March 2025.
[42] ts 40, 19 March 2025.
As can be seen from the principles set out in s 4 of the GA Act, the starting position, on an application for the appointment of a guardian or an administrator is that the person concerned is presumed to have capacity to make reasonable judgments about their person, their estate and to manage their own affairs.
The presumption of capacity in the GA Act, can only be displaced by clear and cogent evidence of incapacity of that person the subject of the proceeding and findings that the person is a person for whom a guardianship order can be made (pursuant to s 43(1) of GA Act) or for whom an administration order can be made (pursuant to s 64(1) of the GA Act).[43]
[43] GC and PC [2014] WASAT 10[36].
In respect of the appointment of a guardian, the Full Tribunal considered the nature and operation of s 43(1)(b) generally in EW[2021] WASAT 111 [39] - [40], stating in that case:
39The absence of capacity to make decisions, as a prerequisite for the appointment of a guardian, underlies s 43(1)(b) of the GA Act. The proposed represented person must be incapable of looking after their own health and safety, unable to make reasonable judgments in respect of matters relating to their person, or in need of oversight care or control in their own health and safety or for the protection of others. The inability to do any or all of these things may flow from a limitation or deficit in the person's cognitive functioning, whether that limitation is permanent or temporary in nature.
40Section 43(1)(b) of the GA Act thus deals with the question of capacity in a global sense - for example, by reference to whether the person is unable to make reasonable judgments about personal matters generally - rather than by reference to the question of capacity to make particular kinds of decisions. That reflects the approach taken to capacity in the GA Act as a whole. By way of example, s 4 of the GA Act refers to the presumption that a person is capable of looking after their own health and safety, and of making reasonable judgments in respect of matters relating to their person, rather than to whether they are able to make particular kinds of decisions. Similarly, in relation to administration, the question of capacity is judged by reference to whether the person is, by reason of a mental disability, unable to make reasonable judgments in respect of matters relating to all or any part of their estate. (Footnotes omitted).
In GG [2021] WASAT 133 the Tribunal when considering s 43(1)(b) of the GA Act said at [60 c)]:
Read together, it is apparent that each of the three limbs of s 43(1)(b), in the context of the GA Act (including the presumptions in s 4), is directed to the inability of a person to make and execute decisions about matters relevant to their personal welfare.
In respect of the appointment of an administrator of her estate, s 64 of the GA Act requires that the represented person be found to have an incapacity by reason of a mental disability to make reasonable judgments about any or all of her estate. This provision was considered in FY [2019] WASAT 118:
In that case it was recognised that the definition of mental disability is an inclusive one [at 26]. There is no requirement of a precise degree of mental disability, for the purposes of s 64 of the GA Act the only relevant measure in relation to a person with mental disability is whether that person is unable by reason of that disability of making reasonable judgments in respect of matters relating to all or any part of their estate [at 31].
A person's ability to make reasonable judgments involves both subjective and objective tests: as a person's capacity is to be assessed in relation to their actual estate. At the same time the Tribunal must consider whether the person has the ability to engage in the particular mental process required to make that judgment [at 52].
An estate is a reference to the 'aggregate of a person's property their assets and liabilities and in practice encompasses the entirety of their real and personal property and all of their financial affairs'.[44]
[44] SAL and JGL [2016] WASAT 63 at [22].
As held by the Full Tribunal in FY:[45]
An individual's ability to make reasonable judgments in respect of their estate requires that they have, amongst other things the ability to understand the need for, and sources of, income available to them, to understand the value of any income received relative to items of expenditure, to identify and calculate necessary expenditure for day-to-day living together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their; means to a identify and assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into a contract such as those for the purchase of a phone household items a car or a house); to organise their affairs to be able to meet debts as they fall due; and to identify and implement problem-solving strategies for resolving any unexpected financial issues.
[45] FY [2019] WASAT 118 at [53].
In considering whether the presumption of capacity of the represented person is displaced and the represented person is a person for whom a guardian and administrator may be appointed I have had regard to the health professionals' evidence and that of the daughters of the represented person and the represented person's presentation in the first hearing.
The applicant asserts that the represented person's capacity is impaired.
This is challenged by MJ who says that the represented person does not lack capacity, is making her own decisions[46] and is lucid.[47] MJ said she had been acting as the represented person's guardian for 10 years.[48] From MJ's submissions at least since 2020 (when she returned to Western Australia) it appears the represented person has relied on MJ to make arrangements for services and accompany her to the doctor and to manage her affairs. MJ provided information to the doctor[49] and to the hospital when the represented person could not give her medical history.[50] These observations do not lead to a conclusion that the represented person lacks capacity, but they do emphasise her reliance on MJ.
[46] ts 9, 19 March 2025.
[47] ts 13, 19 March 2025.
[48] ts 27, 12 February 2025.
[49] Dr SK states daughter assists with communication.
[50] ACAT Hospital discharge summary collateral provided by daughter.
In his brief letter dated 20 January 2025, Dr KS, the general practitioner states the represented person has no cognitive impairment and full mental capacity to make her own decisions. MJ reports that in a cognitive assessment conducted by Dr KS the represented person scored 27/30.[51] In a note attached to the standard medical guide filed by him, the score of a MMSE conducted on 20 January 2025 is reported as 25/30 which is said to 'indicate no cognitive impairment'. This finding is inconsistent with the cognitive assessments conducted by the occupational therapist (in October 2024) and the geriatrician (in March 2025) both of which indicate the represented person experiences moderate cognitive impairment. Both cognitive impairment and functional decline are also reported in the hospital discharge summary relying on collateral provided by MJ at least on one occasion as the represented person could not provide her medical history.
[51] ts 27, 12 February 2025.
Historically the represented person has experienced decades long mental health diagnoses and a number of admissions for treatment of schizophrenia and bipolar affective disorder which according to the material was treated with electro convulsive therapy. It is asserted that this treatment may have contributed to the represented person's demonstrated memory impairment. The represented person also suffers significant illnesses include stage 5 chronic kidney disease and hypertension which it is said may also impact on her cognitive functioning. Short-term memory impairment experienced by the represented person and acknowledged by her is reported in the Aged Care Assessment from 2022.
The assessment by the geriatrician reports that the represented person was unaware of the details of her financial circumstances and reliant on others for expenditure. He gives the opinion that she is incapable of complex decisions and incapable in the spheres of personal decision-making of accommodation and services. He states he is unsure regarding medical treatment decision-making but notes that the represented person said she needed her daughter to help her with this.
In the assessment by the geriatrician, the represented person acknowledges that she needs assistance in spheres of decision-making including her health care, legal matters, accommodation and services.
The facility manager in the second hearing related how the represented person had told her that she did not want to have the injection in her shoulder, and this was supported by her general practitioner at the RACF. Despite this, MJ took her to a doctor for the injection. When the represented person returned to the RACF she was unable to provide details of what had occurred. I accept the evidence of the facility manager regarding these events.
I am satisfied that the evidence; including the medical evidence, the cognitive assessments, the evidence of the facility manager, the applicant and MJ (regarding the represented person's reliance on her) that the presumption of capacity is displaced.
I am satisfied that the represented person does have a mental disability being the psychiatric conditions of schizophrenia and bipolar disorder with which she is diagnosed, and the cognitive impairment described in reports and assessments. I accept the evidence of the geriatrician that the represented person was unaware of the details of her financial circumstances. I am satisfied that the represented person is unable by reason of her mental disability to make reasonable judgments about her estate because she cannot recall necessary information to inform her decision-making to enable her to make such judgments.
I am also satisfied that the represented person lacks capacity in respect of personal decision-making. The represented person has complex health problems and a memory impairment. The material before me indicates her past reliance on MJ to provide the medical history to health professionals, to initiate treatment and to accompany the represented person to appointments to assist with communication. More recently the applicant has been involved in discussions with health professionals including the renal specialist nurse when information was being given to the represented person about whether she needed dialysis or not.
The represented person's presentation at the first hearing and the more recent deterioration in her physical health together with the evidence regarding the represented person's cognitive impairment to which I have referred, supports the finding that she lacks capacity to independently make judgments about her personal matters, including her health care or to make and execute decisions relevant to her personal welfare.
For these reasons I am satisfied that the represented person is a person for whom both a guardian and an administrator may be appointed.
Wishes of the represented person
Documents have been filed referring to the wishes of the represented person including a statutory declaration by the represented person stating that it is her wish that MJ continue to act as her sole guardian and enduring power of attorney. The language of the statutory declaration in my assessment closely follows the language in MJ's submission with reference to decade long support from MJ to the represented person. The friend and neighbour refer to support for MJ to maintain her roles as guardian or to the continuation of the status quo.
When interviewed the represented person advised the investigator that she had appointed MJ as her sole attorney, and she reportedly confirmed several times she wanted MJ in this role and as her enduring guardian.
The 2024 EPA (and the 2024 EPG) however do not appoint MJ solely as attorney or as enduring guardian. The 2024 EPA appoints MJ jointly and severally with the applicant. In respect of the 2024 EPG, it purportedly appoints MJ and the applicant jointly and severally. These appointments were made following the documents being drawn by the represented person's solicitor.
In her submission MJ refers to the represented person requesting that she be taken to her solicitor to prepare these documents despite an EPG being made on the Public Advocate's standard EPG form.
The represented person's solicitor, who is an experienced practitioner, and I accept familiar with the represented person, advised the investigator that he assessed the represented person's capacity to execute the documents, took instructions from her when MJ was not in the room and the documents were then executed. I accept that the documents signed reflected the represented person's wishes given to the solicitor at the time.
In MJ's submission and in text messages from the applicant to MJ, the applicant appears to be highly critical of the represented person, challenges the validity of her will and takes issue with what are understood to be proposed distributions to be made in the will dated 4 February 2019 to the son of MJ rather than to her own children. Some of the emails predate the execution of the 2024 EPA and 2024 EPG. The applicant makes negative statements about the represented person and appears at times antagonistic to her. If the represented person was in fact aware of the comments made, it may be that she changed her mind about the 2024 EPA and 2024 EPG, but they remained unrevoked at the time the application was made to the Tribunal.
In the hearing MJ said that the represented person had changed her mind following the application being made to the Tribunal by the applicant. The application was, I accept, made prompted by a lack of information provided to the applicant by MJ and potentially the conflict about the represented person's will. The communication problems between the applicant and MJ appear to predate the application to the Tribunal.
The directions included in the 2024 EPG which are more in the nature of wishes for care at the end of life regarding resuscitation are also said to be inconsistent with the wishes of the represented person as reported by MJ to the investigator. However, it may be that the directions included in the 2024 EPG do reflect the wishes of the represented person about these matters as expressed to her solicitor at that time. This may require further exploration by an appointed guardian so the wishes of the represented person in this regard can be properly understood. Although not effective as an EPG, the matters set out may reflect the represented person's decisions in respect of future treatment. I note here s 110ZB of the GA Act which provides:
110ZB.Common law preserved
This Part does not affect the common law relating to a person's entitlement to make treatment decisions in respect of the person's future treatment.
Is the represented person in need of a guardianship and administration order or are there less restrictive alternatives to those orders
I am satisfied that the represented person lacks capacity and is dependent on others for decision-making both in respect of her personal and her financial matters. The question is whether she needs a guardian and administrator or are there less restrictive means to meet that need.
2024 EPA
Generally, an EPA which is operating effectively to meet the needs of the donor may be considered a less restrictive alternative to the appointment of an administrator of that person's estate.
Part 9 of the GA Act deals with the creation of an EPA. Section 102 of the GA Act defines a donee of an EPA as 'includes 2 persons appointed, whether jointly or severally to act under the power'. This provision clearly enables the donor of an EPA to appoint attorneys either jointly or severally as has occurred here.
Section 107 of the GA Act sets out the obligations on attorneys appointed under an EPA:
(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;
(b)shall keep and preserve accurate records and accounts of all dealings and transactions made under the power;
(c)subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and
(d)shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal.
Penalty applicable to paragraph (b): $2 000.
(2)In relation to an enduring power of attorney recognised by the State Administrative Tribunal under section 104A(2), subsection (1)(a) and (b) only apply to the donor's estate within Western Australia and subsection (1)(c) does not apply.
MJ operated under the 2024 EPA and has paid the represented person's accounts and apparently managed her property to prepare it to be tenanted but would not provide information about expenditure or those arrangements to the applicant who was also appointed under the 2024 EPA jointly with her.
As the 2024 EPA appoints the attorneys jointly and severally, the attorneys, MJ and the applicant, may act independently of each other under a power styled in those terms. It is the case that the 2024 EPA could be operated by either attorney and therefore could continue to operate but it is not, in my judgment, in the best interests of the represented person that it does so for the following reasons.
As can be seen from s 107(1)(a) of the GA Act a donee of an EPA 'shall exercise his powers as attorney with reasonable diligence to protect the interest of the donor and if the donee fails to do so, is liable to the donor for any loss occasioned by that failure'.
An attorney who is appointed jointly and severally and is refused information or is not aware of financial decisions made by the other appointed attorney is not, in my view, able to exercise reasonable diligence or provide oversight.
Parker v Higgins [2021] NSW SC 1516 is a case which dealt with sisters who were joint and several attorneys in conflict. Although the application was ultimately dismissed as it was held that an attorney was not required to provide accounts to the standard required of trustees, the case appears to have proceeded on the assumption that both attorneys were entitled to information about the estate, including from the other.[52] The attorney who was defending the action had in fact provided documents and bank details to enable the other attorney to log in and access and have oversight of their parent's bank accounts [at 74].
[52] Referred to in MBC [2016] NSWCATGD 36.
It is arguable, in my view, that an attorney appointed jointly and severally, could be liable for any loss occasioned to the estate of the donor by the negligence or misconduct of the other attorney. This can be seen from the definition of 'donee' in s 102 of the GA Act which provides that a 'donee includes 2 persons appointed, whether jointly or severally, to act under a power of attorney …' and the liability of the donee in s 107(1) of the GA Act. This is particularly so if they, themselves failed to take steps to protect the donor.
MJ continues to refuse to communicate with the applicant about the financial affairs of the represented person, in that sense not acknowledging that the represented person appointed the applicant jointly as an attorney with herself.
As noted above, the reason given by MJ for her refusal to provide information to the applicant was because the application had been filed with the Tribunal.[53] Having regard to the general supervisory role over the conduct of enduring attorneys played by the Tribunal[54] and the provisions in the GA Act dealing with EPAs which are largely to do with the protection of vulnerable people,[55] which operate to scrutinise what would otherwise be a private arrangement[56] between the donor and her attorneys, MJ's approach is of some concern.
[53] ts 25, 12 February 2025.
[54] KS [2008] WASAT 29 [47].
[55] KS [2008] WASAT 29 [46].
[56] EW [2010] WASAT 91 [94].
I am satisfied that due to her cognitive impairment that the represented person no longer has capacity[57] to make a new EPA and so is not able to resolve the issue of the conflict between her attorneys herself by the execution of a new EPA.[58]
[57] As to capacity to execute an enduring power of attorney see Szozda v Szozda [2010] NSWSC 804 at [34].
[58] cf Parker v Higgins where the donor father was said to be capable and able to resolve the conflict between his daughters.
The applicant had doubts about the financial decision-making capabilities of MJ and the refusal of MJ to provide information about the management of the represented person's estate increased her concern. The applicant's concerns and her lack of information of the represented person's finances, in my view placed her in a difficult position. Her only recourse was to bring the application to the Tribunal since she could not simply renounce the power to act as an attorney as this would be a breach of s 107(1)(c) of the GA Act as the applicant regarded the represented person as unable to manage her own financial affairs.
For these reasons I am not satisfied that the 2024 EPA is an appropriate vehicle by which the represented person's estate should be managed. I am satisfied and I find the represented person is in need of an administrator of her estate. As it is inconsistent with the administration order made, the 2024 EPA is revoked.[59]
2024 EPG
[59] GA Act, s 108(1a).
The investigator's submission is that the 2024 EPG is invalid. I accept this submission. The 2024 EPG purports to appoint the enduring guardians jointly and severally. This is not permissible under s 110B(b) of GA Act as set out above.
Section 110K of the GA Act gives the Tribunal power to declare an EPG valid or invalid. A clear basis upon which such a declaration can be made would be that the document does not meet the formal requirements for the making of an EPG.[60]
[60] See Re C [2012] WASAT 50 at [55] per Justice Chaney President, Ms S Gillett (Member) Dr A McCutcheon (Senior Sessional Member).
To intervene in an EPG to revoke or vary it pursuant to s 110N of the GA Act or to declare its validity or invalidity pursuant to s 110K of the GA Act. I must be satisfied that the applicant has a proper interest in bringing the application.[61]
[61] Pursuant to s 110J of the GA Act.
I am satisfied the applicant has a proper interest because of the circumstances which existed at the time. As one of the enduring guardians purportedly appointed under the 2024 EPG, the applicant was aware that the represented person had significant and chronic health problems and MJ did not communicate with her about these matters.
As I am satisfied that the 2024 EPG is invalid, I will make the declaration to that effect.
In the absence of a valid EPG, I must consider whether there is a less restrictive alternative to the appointment of a guardian to meet the needs of the represented person.
The applicant is the elder daughter of the represented person, and the facility manager refers to her as the represented person's next of kin.
Section 110ZD of the GA Act provides for 'a person responsible' to make treatment decisions for a patient unable to make reasonable judgments about treatment. Pursuant to s 110ZD(3) of the GA Act the nearest relative of the patient who maintains a close personal relationship may be identified as the person responsible. As the represented person is a widow pursuant to s 110ZD(4) of the GA Act the nearest relative of the represented person is the elder of her children.
There is some doubt as to whether the applicant could be said to have maintained a close personal relationship as it is defined in the GA Act. Although I accept the applicant takes a genuine interest in the represented person's welfare and was involved in the arrangements for the represented person's entry into aged care, the applicant does not have frequent contact of a personal nature with the represented person as required by the definition. The service providers report notes that '[u]nfortunately daughter [applicant] isn't able to visit often due to other commitments and not living local'.[62]
[62] Service Provider Report (Folio 14) dated 28 January 2025.
MJ does have frequent contact with the represented person and has at least in the past, accompanied the represented person to her medical appointments. The represented person referred to her reliance on MJ in the assessment conducted by the geriatrician. However, the most recent submission from the facility manager is that MJ acted against the expressed wishes of the represented person to facilitate an injection of the represented person and misrepresented that activity to the care staff at the RACF. MJ maintained that it was the represented person's wish to have the injection, however this evidence conflicts with that of the facility manager who says she spoke to the represented person who did not wish to have it. Although MJ may have had a genuine belief that the injection would relieve the represented person's pain, where their evidence is in conflict about this issue I prefer the evidence of the facility manager. MJ later conceded she misrepresented the position about the purpose of her taking the represented person from the facility. MJ also gave evidence about the contact made with her by the applicant when the represented person was hospitalised just prior to the second hearing initially asserting that there was a delay in contacting her only later conceding that this was inaccurate.
MJ had a disagreement with the visiting doctor to the RACF about a medication which was discontinued as deemed unnecessary when the represented person was reviewed in hospital. This was supported by the general practitioners who later saw the represented person. The disagreement was such that the doctor would no longer attend the represented person at the RACF. While another general practitioner was arranged by MJ, and the represented person taken to appointments, there was some concern about continuity of care for the represented person in this arrangement which was expressed by both MJ and the facility manager.
It is clear that the daughters of the represented person disagree about healthcare matters for her and their sharing of information has been inconsistent. The applicant says that she is a nurse and has appropriate knowledge to interact effectively with health professionals, however she is not in regular contact with the represented person because of her own work and family commitments. She did however consult the renal specialist nurse when the represented person was in hospital and was advised that the represented person does not require dialysis at present. This is in contrast to the advice MJ says she was given by a private renal specialist that dialysis is required.
Prior to these proceedings I accept that the applicant was not advised by MJ about treatment decisions when she accompanied the represented person to the specialist which included the plan for dialysis. The applicant had not advised MJ of the significant information about the hospital assessment that dialysis was not required until the hearing.
The represented person may face complex decisions into the future to treat her chronic health problems. Any lack of continuity of medical care, inconsistency or lack of reliability in the handover of information or health professionals having an incomplete history regarding her medical care is not in the represented person's best interests.
Because of her memory impairment and her admitted reliance on others in relation to health care there is a need for certainty and consistency in personal decision-making for her. I am satisfied that the represented person is in need of a guardian.
Who should be appointed as administrator and guardian?
Although initially proposing themselves, the investigator advised at the second hearing that both the applicant and MJ had advised her that they preferred the appointment of the Public Trustee and the Public Advocate as administrator and guardian to the other being appointed in these roles. They confirmed this in the hearing.
In these circumstances I am satisfied that there is no one else suitable or willing to be appointed guardian of the represented person and will appoint the Public Advocate as the represented person's guardian. I will also appoint the Public Trustee as administrator.
Given the manifest level of conflict between the applicant and MJ, I am satisfied that it is in the best interests of the represented person that independent appointments are made. The ongoing conflict between her daughters is not in the best interests of the represented person. Both appeared to acknowledge the conflict between them as impacting adversely on the represented person.[63]
[63] ts 41, 19 March 2025.
With independent appointments each can be confident that the represented person's interests will be protected and their own views regarding the needs and wishes of the represented person will be considered.
Scope and duration of orders
I am satisfied that a plenary administration order is appropriate considering the estate of the represented person to be managed and the range of decisions which may be required, including the payment of her aged care fees and the management of her property and the potential sale of that property to meet her assessed care fees.
I am satisfied that a limited guardianship order will meet the current needs of the represented person such that a plenary order is not required. I accept the submission of the investigator that in addition to treatment decisions the functions to be exercised by the guardian should include services and accommodation as those type of decisions may be required to be made for the represented person within the RACF.
According to the medical evidence the represented person has a progressive condition. Considering this I am satisfied that she will need substitute decision-makers in the longer term. Unfortunately, it appears at present that there is an intractable conflict and poor communication between her daughters. Because of this I am satisfied that orders should be made for the maximum period.
For these reasons I make the following declarations and orders.
Orders
GAA 6408/2024
1.The Tribunal declares that the represented person, [JJ] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
Administration
2.The order made on 12 February 2025 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
3.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).
4.The enduring power of attorney dated 6 November 2024 by which the represented person appointed [MJ] and [MGB] to be her attorneys, is revoked.
5.The administration order is to be reviewed before 18 March 2030.
Guardianship
6.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 what contact, if any, the represented person should have with others and the extent of that contact; and
(e)to determine the services to which the represented person should have access.
7.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.
8.The guardianship order is to be reviewed before 18 March 2030.
GAA 840/2025
1.On an application by [MGB] pursuant to s 110K of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of guardianship dated 6 November 2024 by which [the represented person] appointed [MJ] and [MGB] as her enduring guardians
The Tribunal declares:
2.The enduring power of guardianship is invalid.
GAA 6410/2024
1.On an application by [MGB] pursuant to s 110N of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of guardianship dated 6 November 2024 by which [the represented person] appointed [MJ] and [MGB] as her enduring guardians
The Tribunal orders:
2.The enduring power of guardianship is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
4 JUNE 2025