JS
[2018] WASAT 120
•7 NOVEMBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JS [2018] WASAT 120
MEMBER: MS F CHILD (MEMBER)
HEARD: 3 AUGUST 2018, 4 SEPTEMBER 2018 AND 7 SEPTEMBER 2018
DELIVERED : 7 NOVEMBER 2018
FILE NO/S: GAA 795 of 2018
GAA 796 of 2018
JS
Represented Person
JNS
Applicant
L
Interested Party
Catchwords:
Guardianship and Administration Applications for the appointment of guardian and administrator and for intervention in enduring power of guardianship and enduring power of attorney - Evidence of incapacity at time instruments made - Dementia Capacity - Need for orders - Informal arrangements insufficient to meet needs - Suitability for appointment Need for independent oversight of care needs and of the estate - Enduring powers of attorney and guardianship revoked - Public Advocate appointed limited guardian - Public Trustee appointed plenary administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(4), s 40, s 43(1), s 44, s 44(1)(b), s 51(2)(d), s 51(2)(g), s 64(1), s 68, s 76, s 97(1)(a), s 104, s 104(1)(a), s 107, s 107(1), s 108, s 109, s 109(1)(c), s 110B, s 110E, s 110E(1)(c), s 110H(a), s 110J, s 110K, s 110N, s 110ZD, Pt 9, Pt 9A
Result:
Public Trustee appointed administrator
Public Advocate appointed limited guardian
Enduring power of attorney revoked
Enduring power of guardianship revoked
Category: B
Representation:
Counsel:
| Represented Person | : | Ms Taylor |
| Applicant | : | In Person |
| Interested Party | : | Mr Hedges |
Solicitors:
| Represented Person | : | Lavan Legal |
| Applicant | : | N/A |
| Interested Party | : | Kavanagh Legal |
Case(s) referred to in decision(s):
Burns v Corbett [2018] HCA 15
GS [2018] WASAT 72
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
JS is an 85-year-old woman with a diagnosis of a dementia. On 6 March 2018, JNS, the sister of JS, (the applicant) filed applications with the Tribunal seeking the appointment of a guardian and administrator for JS (the represented person) pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (the GA Act) and pursuant to s 110N and s 109(1)(c)of the GA Act for revocation or variation of an enduring power of guardianship (EPG) and an enduring power of attorney (EPA).
The applicant is a resident of New South Wales and had been appointed by the represented person together with the represented person's daughter, L, as the represented person's joint and several attorney under an EPA dated 29 November 2013 and together with L as her joint enduring guardian under an EPG dated 28 March 2016.
Although initially proposing herself for appointment, by email dated 14 March 2018, the applicant proposes the Public Advocate be appointed as the guardian of the represented person and confirmed in the hearings before the Tribunal that she proposes the Public Trustee be appointed as administrator of the represented person's estate.
The background of the applications is that in February 2018 the represented person was hospitalised and the joint enduring guardians, the applicant and L disagreed about the plan for her discharge from hospital.
The applicant said, at that time, that the represented person needed residential aged care to meet her care needs and L maintained that the represented person could live in her own home with L and L's adult daughter A.
At the time of the first hearing the applicant agreed the represented person should continue to live at home as long as she had services and an independent guardian was appointed.
By letter dated 30 April 2018 the applicant was advised by solicitors acting for the represented person that the 2013 EPA and the 2016 EPG had been revoked. Accompanying the letter was a revocation of the EPA dated 18 April 2018. The applicant was advised that the deed of revocation had been lodged with Landgate.
An EPG of the represented person dated 7 March 2018 which provides for the appointment L as the sole enduring guardian and an EPA dated 18 April 2018 by which L is appointed sole attorney were filed with the Tribunal in the course of the proceedings.
Proceedings before the Tribunal
The applications received on 6 March 2018 were referred to the Public Advocate for investigation by order dated 13 March 2018.
The applications were listed for hearing on 4 May 2018 but that date was vacated because of the unavailability of the applicant. The matter was relisted to 18 May 2018.
A notice of representation of the represented person was filed by Lavan Legal (the solicitors) on 30 April 2018.
An order was made on 7 May 2018 granting Lavan Legal access to and copies of material filed to that date which included a report of Dr K, (geriatrician) dated 16 March 2018, the letter from Dr K to Dr B (general practitioner) dated 1 March 2018, a social work report dated 23 March 2018 and a copy of a cognitive assessment of the represented person: Montreal Cognitive Assessment (MoCA) dated 21 February 2018.
The 18 May 2018 hearing date and further hearing dates on 21 June and 16 August 2018 were vacated and the applications relisted at the request of solicitors then acting for the represented person as a further assessment and report from another geriatrician, Dr I and a neuropsychologist, Dr V had been arranged and because of unavailability of chosen counsel. The hearing was brought forward to 3 August 2018 to accommodate the availability of chosen counsel.
The matter was part heard on 3 August 2018 with the Tribunal hearing from Dr K and Dr V by telephone and from the represented person, the applicant, L, and the represented person's other daughter, J, a representative of the Public Advocate and legal representatives of the represented person and of L.
At the commencement of the hearing on 3 August 2018 the question of whether the represented person was able to instruct solicitors was raised by the Tribunal with both counsel and her instructing solicitor in light of the findings in report of Dr V about this issue which confirmed Dr K's opinion given in his report of 16 March 2018.
The hearing was adjourned to a date to be fixed for the filing by 14 August 2018 of any proposals for the appointment of a guardian of the represented person and an administrator of her estate and for any proposals for the remuneration of the administrator. The orders required written proposals and consents to be filed by any person seeking appointment and any proposed appointee to attend the hearing by telephone or in person.
The Tribunal received a notice filed on 15 August 2018 that the solicitors for the represented person ceased to act for her.
Orders dated 23 August 2018 listed the matter for final hearing on 4 September 2018.
The solicitors for L sought an adjournment of this hearing because of unavailability of F, a person proposed for appointment as administrator and as written proposals had not been finalised.
The Tribunal determined that further delay was not in the represented person's best interests and the request for an adjournment of the applications to proposed dates later in September or October 2018 was refused. Telephone attendance of the represented person's long-term stockbroker, F was arranged.
On 3 September 2018 the Public Advocate consented to her substitution as the applicant for orders intervening in the EPG and EPA (s 110N and s 109 applications).
The Public Advocate's consent was sought to resolve any doubt as to the Tribunal's jurisdiction to determine these matters.
This issue is raised as the applicant is a resident of New South Wales and the represented person and L as the appointor and the enduring guardian under the EPG dated 7 March 2018 and donor and sole attorney under the EPA dated 18 April 2018 are residents of Western Australia.
The capacity of the Tribunal to exercise jurisdiction to determine matters between residents of different states was considered in GS [2018] WASAT 72 which considered the effect of the decision of the High Court in Burns v Corbett [2018] HCA 15 on matters in the guardianship jurisdiction of the Tribunal and determined that in these types of matters the Tribunal did not have jurisdiction. This decision has been appealed to the Supreme Court.
Following the hearing on 4 September 2018 the decision on the applications was reserved to 7 September 2018 when orders were announced and the parties advised that the Tribunal would publish its reasons.
In written decisions of the Tribunal in the GA Act jurisdiction the parties and witnesses are not identified to protect the privacy of the represented person.
Legislation
In all proceedings brought under the GA Act the Tribunal must observe the principles set out in s 4 of the GA Act:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
To appoint an administrator of an estate the Tribunal must first be satisfied that the person for whom the order is sought is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all or any part of her estate and is in need of an administrator of her estate (s 64(1) of the GA Act).
A mental disability is defined in s 3 of the GA Act to include dementia.
To appoint a guardian for a person the Tribunal must be satisfied that the proposed represented person is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person or is in need of oversight care or control in the interest of own health and safety or for the protection of others and is in need of a guardian (s 43(1) of the GA Act).
If the Tribunal decides that orders appointing a guardian and administrator should be made it must consider who is suitable for appointment and the terms of any orders made.
The factors to be considered by the Tribunal in determining the suitability of any proposed appointment are set out in s 44 and s 68 of the GA Act which provide:
44.Who may be appointed guardian
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
68.Who may be appointed administrator
(1)An administrator (including a joint administrator) shall be
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2)The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4)The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.
Part 9 of the GA Act deals with the creation of an EPA (s 104), the obligations on attorneys appointed under an EPA (s 107) and the jurisdiction of the Tribunal to intervene in or make other orders in respect of the estate of the donor of an EPA (s 109 and s 108 of the GA Act).
Pursuant to s 104(1a) a person may create an EPA if over 18 years of age and of full legal capacity.
Pursuant to s 108 where Tribunal makes an administration order in respect of the estate of the donor of an EPA and where the operation of the EPA would be inconsistent with the functions of the appointed administrator the Tribunal shall revoke the power or vary it to remove the inconsistency.
Part 9A of the GA Act deals with the creation and operation of EPGs and the jurisdiction of the Tribunal in respect of EPGs created under this Act.
Pursuant to s 110B of the GA Act provides that a person who has reached the age of 18 years of age and has full legal capacity may make an EPG appointing a person as an enduring guardian or two or more persons as joint enduring guardians.
Section 110E sets out the formality requirements for the execution of an EPG.
Pursuant to s 110J a person with a proper interest in the matter may apply to the Tribunal for a decision under this division.
Section 110N provides for the Tribunal to make an order revoking an EPG or varying the terms of an EPG.
Section 110K provides for a declaration of validity or invalidity of an EPG.
Evidence and material before the Tribunal
The Tribunal received the applications, written submissions, correspondence, affidavits and medical and other professional reports which were included in a hearing book made available to the legally represented parties.
The Tribunal heard oral evidence from the parties including the applicant, L and J, the represented person's other daughter and from Drs K and V by telephone at the hearing on 3 August 2018 (first hearing).
At the hearing on 4 September 2018 the Tribunal heard from the parties, including, F, by telephone from overseas, from counsel for L and from the Public Advocate regarding proposals for appointment of a guardian and administrator for the represented person.
What the Tribunal must consider
To determine the applications before it the Tribunal must decide the following:
•Is the presumption of capacity of the represented person as set out in s 4 of the GA Act displaced by the evidence and is the represented person a person for whom an administration order and or a guardianship order may be made?
•Is the represented person in need of a guardian and in need of an administrator of her estate or is there a less restrictive alternative to the making of these orders. In particular, do the EPA dated 18 April 2018 and the EPG dated 7 March 2018 provide a less restrictive means by which the needs of the represented person may be met?
•What are the wishes of the represented person?
•If administration and guardianship orders are needed who is suitable for appointment in these roles?
•What functions should be included in any orders made and when should the orders be reviewed?
•In respect of the applications pursuant to s 110N and s 109(1)(c) of the GA Act: Does the applicant have a proper interest and should the Tribunal exercise the discretion to make the orders sought?
Is the presumption of capacity displaced and is the represented person a person for whom an administration order and or a guardianship order may be made
The following medical and other professional reports were filed and the Tribunal.
A copy of a MoCA of the represented person from an occupational therapist from a hospital dated 21 February 2018 with a score of 14/30. The note on the assessment reads 'score indicates moderate cognitive impairment (range 10 to 17)'.
A report of Dr K (consultant physician and geriatrician) dated 16 March 2018 states that the represented person has a mental disability of 'Dementia of Alzheimer's Type, and the condition is a progressive one'. Dr K's opinion is that the represented person is incapable of financial decision-making, decision-making in legal matters and personal decision-making, incapable of giving an EPA or EPG but could give an opinion as to where she would like to live and that her opinion should be given some consideration in the ultimate decision.
In a letter from Dr K to Dr B (the represented person's long-term general practitioner) dated 1 March 2018 which Dr K says in his oral evidence was written at the time of discharge of the represented person from hospital, Dr K writes that the represented person was :
… admitted to [hospital] with general deterioration. The primary problem was diarrhoea though there were also issues with her and her daughter not coping at home.... [The represented person] was very frail though has responded to physiotherapy. … [The represented person's] daughter and sister (who lives in Sydney) have joint guardianship and EPA powers. There is significant disagreement between them as to what should happen. The sister feels [the represented person] is not being adequately looked after and would prefer her to go into permanent care. [The represented person's] daughter however is very keen on continuing to look after her. Although [the represented person] has significant dementia she generally expresses the wish to stay at home with her daughter. I think she is capable of having an input into this decision. Her sister may seek another SAT hearing with the intention of a state guardian being appointed. My suspicion is that an impartial third party would allow her to go home with her daughter for the time being.
We have arranged for respite admission on leaving hospital for the next few weeks. Thereafter increased assistance will be put in place including daily personal care to supervise showering and meals. It would also be desirable for [the represented person] to be taken out to community social groups as much as possible[.]
A social worker's report of Ms C, dated 23 March 2018 states '[represented person] requires supported care environment and assistance with all of her at the daily care activities ….' She is a high falls risk and is not safe to be left alone for extended periods[.]'.
The social worker reports that the represented person 'indicated a preference to remain living at home with her family and dog' but she 'was also agreeable to move into residential care if her family felt this was the most appropriate option'.
The social worker reports that during the admission the applicant raised concerns regarding the home environment of the represented person and L's inability to fully understand and meet the represented person's needs. These included allegations that there was a 'fridge full of food that was out of date and that [the represented person] was left alone for long periods of without support'. It was reported that the represented person forgot to eat and that L 'gets easily frustrated and verbally upset with the represented person due to her cognitive impairment'.
The social worker reports L acknowledged the issues raised and agreed to an increase in home services to address the areas of concern.
The social worker reports that on 23 February 2018, a 'family meeting' was held with the represented person, Dr K, the medical team, L, the applicant by phone, the occupational therapist and the social worker.
Although present at the meeting the represented person is reported not to have participated in the discussion. The social worker said the medical team acknowledges the applicant's concerns but 'did not feel there was sufficient risk to prevent the represented person from being discharged home at that time and [L] agreed to increase home support to assist her to more appropriately meet the represented person's needs in the home environment'. The social worker said L was advised by the treating team that the represented person is not safe to be left home alone for extended periods.
The social worker recommends that in the longer-term the care needs of the represented person could require residential aged care and recommends wait listing to residential care placement is commenced to facilitate suitable longer term care planning for the represented person. She goes on to say:
It is uncertain whether [L] has the ability to recognise when [the represented person's] needs will be beyond her capacity to manage at home or to commence future care planning for [the represented person] without support to do so. Given the conflict between [the applicant] and [L] and their differing opinions regarding the [represented person's] best interests then appointment of a Guardian to assist with the process would be recommended.
A letter from Dr SK (general practitioner) of 12 March 2018 states, 'I have seen the above today in respite care in the nursing home. She is able to make decisions about her care. She is cognitively intact clinically.'
Progress notes of Dr B (the represented person's long-term general practitioner) dated 12 February 2018 noting referral to Dr K and notes from 21 March, 2018 record 'here with [L] and [granddaughter A] requests documents to be signed. Testamentary capacity tested at length MMSE scoring 18/30'. The note on the assessment is that the score indicates 'moderate cognitive impairment' is present.
A letter dated 21 March 2018 from Dr B stating that he had examined the represented person and 'find[s] she has testamentary capacity. She has some cognitive impairment mainly in the area of short-term memory. I am happy that she has a good understanding of the undertaking of giving her Power of Attorney'.
In his report dated 11 April 2018 Dr B the states that the represented person has a diagnosis of 'moderate dementia with main issue of disorientation in time and short-term memory'. Dr B states that the condition is a progressive one and he assesses the represented person as 'capable' of making simple financial decisions: 'I believe she retains some insight'. He says he is unsure of her capacity to make decisions about complex financial decisions (saying, I have not tested this with her) and legal matters (I have not tested this thoroughly with her).
Dr B says that the represented person is not capable of making decisions about her medical treatment 'by virtue of memory loss'. In respect of accommodation Dr B is 'unsure' of the capacity of the represented person and says 'this is currently disputed and I can't be certain although she retains some insight'. His opinion is that the represented person is incapable of making decisions about services stating 'this is beyond her and needs assistance'.
In respect of the capacity of the represented person to execute an EPA Dr B states he is 'unsure' and that he is 'unsure' if the represented person has executed an EPA. When asked if he was involved in that process as a witness or an assessor of capacity he responds 'No - not that I recall'. Dr B reports that he is unsure of the represented person's capacity to execute an EPG.
Dr I saw the represented person on 14 May 2018 and referred her to Dr V a clinical neuropsychologist for assessment.
Dr V responding to Dr I's referral states 'When reviewed (by you) in May 2018, [the represented person] experienced significant difficulty providing information relating to her medical history, family, and assets. Despite the daughter's assertions regarding [the represented person] being capable of managing her affairs, your clinical impression upon interview was that this was not the case'.
Following her assessment of the represented person on 15 and 16 July 2018, Dr V reports the represented person as 'presenting with global deficits with most marked impairments in memory and executive functioning. Her Mini Mental State Examination was 18/30 (using serial 7s) and she scored 61/100 on the ACE-III. … Abnormality was evident across [the represented person's] learning and memory functions. She demonstrated marked impairment in her ability to encode novel material and evidenced minimal capacity to retain information over time'.
Dr V reports that the represented person's 'cognitive deficits were evident in conversation, manifesting in difficulties during interview providing information regarding her current level of functioning and a high degree of repetitiveness'. Dr V reports that the represented person's 'presentation, as described in [Dr I's ] letter, was consistent with that observed during the time spent in her company over the course of the assessment process'.
Dr B reports the represented person was uncertain as to whether she lived by herself or her daughter lived with her. The represented person is reported to have been 'fairly confident that she saw [L] often', but she was not certain if that was because ' [L] lived with her or lived close by' (ts 15, 3 August 2018).
Dr V's opinion is that the represented person's 'cognitive deficits are such that they are likely to present as significant intrusions to her capacity for independent living and decision making. Overall, her current profile is in keeping with criteria for Major Neurocognitive Disorder, likely due to an Alzheimer's disease pathology'.
In the hearing and in her report Dr V said that the represented person had no recollection of the proceeding before the Tribunal saying 'She didn't know anything about it. She she certainly wasn't aware that there were any legal issues. She wasn't aware that she signed any documents a few months previously' (referring to the EPA and EPG) (ts 15, 3 August 2018).
Dr V further states that the represented person 'found it difficult to appreciate and separate out responsibilities associated with financial (EPA) versus lifestyle decisions (EPG). She found it equally troublesome to try to identify someone that she would trust to make these decisions, though her tendency was to revert back to comments regarding the father and son accountants or her sister'.
Dr V reports the represented person as saying 'I've had the same man and boy for 40 years [referring to F and B the stockbrokers]. I wouldn't like a member of the family to do it'. If a family member were to be involved Dr V reports that the represented person repeatedly stated that her sister, would be the best person, as she was likely to be 'the most impartial'.
Dr V concludes that given the difficulties the represented person had with understanding these functions of an EPA and EPG, her lack of knowledge that any such documents existed, and her consistent comments regarding not wanting any of her children to have these responsibilities, the validity of the EPA and EPG signed in April and March 2018 is drawn into significant question.
Dr V also states that:
[the represented person's] cognitive impairment, together with her difficulties providing even rudimentary information regarding her current level of functioning, supports and assets, mean that she is unable to independently execute formal documentation without significant input and scaffolding. Such makes her highly vulnerable to undue influence from external parties/factors (e.g. the person present in the moment).
Dr V notes that the Aged Care Assessment Team (ACAT) report identified the represented person as dependent for all of her instrumental activities of daily living and aspects of her self-care and that the represented person was being supervised during the day by L, as well as being in receipt of formal support. Dr V states that:
Were supervision no longer able to be provided, significant concerns would be raised regarding [the represented person] remaining living in her own home. Her cognitive impairment is of such a degree that she is at moderate to high-risk and further progressive decline is anticipated.
Dr I in his report dated 30 July 2018 says: 'based on my assessment, [the represented person] has significant cognitive impairment with the most likely diagnosis of Alzheimer's dementia'. Dr I summarises the assessments as an MMSE score of 18/30 on two occasions consistent with moderate cognitive impairment and a 'FDG-PET on 18 May 2018 which he states is consistent with Alzheimer's dementia in terms of pattern and change'.
Dr I's overall conclusions based on all assessments, including the neuropsychologist's and the ACAT assessments is that '[the represented person] lacks competence and capacity to manage her own personal care, activities of daily living, finances and requires both an administration and guardianship order for supports'.
He notes that, based on the ACAT assessment the represented person currently lives in a suitable environment with satisfactory home situation but requires the support of both formal and informal carers for her to remain at home.
Dr I states 'It is unsafe for her to live at home alone in terms of her own personal safety and care needs and requires a live in carer to be present for the major part of the day and night'.
Drs V and K gave oral evidence at the hearing on 3 August 2018 confirming the opinions expressed in their reports. Counsel for the represented person had no questions for either doctor so it is assumed their evidence is accepted.
Counsel for L sought clarification as to whether the represented person had capacity to decide her living arrangements. In response, Dr V said that the represented person could contribute to those discussions but 'her limited insight into her level of functionality would actually make it very difficult for her to make sound decisions, [and] her understanding of why it would not be safe for her to live in certain environments because of her cognitive issues is compromised' (ts 19, 3 August 2018). Dr K endorsed this view.
Dr K said he talked to the applicant and L during the represented person's hospital admission and emphasised to them the level of the represented person's cognitive impairment (ts 23, 3 August 2018).
Dr K he said he was very surprised that an EPA and EPG had been executed but said he had not been asked by L whether the represented person could give an EPA and EPG. His opinion is that the represented person was not capable of giving an EPA and EPG and questions the validity of the documents executed on 7 March 2018 and 18 April 2018. (ts 19, 3 August 2018).
L denied that Dr K had spoken to her about the represented person's functioning and said that despite requests from her for an explanation, Dr K had never discussed medical matters or given her information about the represented person (ts 44, 3 August 2018).
L said that no one had discussed these issues with her and said that the social worker would not discuss anything with her either (ts 45, 3 August 2018). L later said that Dr B had told her the represented person had early Alzheimer's dementia but could not remember when this had been said (ts 59, 3 August 2018).
L did not appear to accept the evidence or the opinions given by Dr K and Dr V at the hearing saying that Dr K had only seen the represented person when she was unwell or in hospital (ts 59 & 63, 3 August 2018) and that Dr V had seen the represented person only after a fall which occurred on 22 June 2018. L said that the represented person's 'memory and her mind and her thinking was a lot sharper before she had this fall' (ts 57, 3 August 2018). L said 'I strongly believe and she had stitches above her left eye that that has knocked her brain about and has made her memory worse' (ts 60, 3 August 2018).
L also did not appear to accept the evidence of Dr K and Dr V that at 'baseline' the represented person was quite impaired and that infections or other physical health factors would only make her presentation worse. (ts 57, 3 August 2018).
L said she disagreed with the ACAT assessment that the represented person needed full assistance with activities of daily living including cooking or that the represented person was partially blind as she has glaucoma. L said that cooking was shared in the household (ts 51, 3 August 2018).
When asked, L said that the represented person did not have an understanding of her financial affairs 'for the last year or so' (ts 52, 3 August 2018). L said that the represented person constantly sought reassurance that she had sufficient funds to meet her expenses. L said:
When I have asked [F] or [B] (the stockbrokers) about if we have got money, I know we've got money. But it's to reassure Mum, because Mum keeps saying, No, we can't have the services extended, or, We can't do this because we don't have the money. I said, Mum, yes, you do.
L said that the represented person had made these comments. 'Some of last year towards the end of last, but this year, a lot of this year' (ts 52, 3 August 2018).
In his evidence at the second hearing, although acknowledging he had been made aware by L of the represented person's diagnosis, F, who is the long term stockbroker and proposed as administrator, said that the represented person had made 'a steady recovery after a fall and although 'her memory is going a little bit … she's a pretty normal person' (ts 13, 4 September 2018).
Six affidavits from friends of the represented person and of L were filed by solicitors then acting for the represented person dated variously May, June and July 2018.
The affidavits refer to contact with the represented person, her social outings, her comfort and familiarity with her home and local area, supports provided by L to the represented person, arrangements for supervision of the represented person when L is not available and history of family relationships including the legal dispute with J. Some refer to a decline in the represented person's short-term memory and her disorientation to person.
Determination
The opinions of Drs K , V and I are consistent that the represented person has a diagnosis of Alzheimer's disease with associated dementia, has moderate cognitive impairment and lacks capacity to make decisions about her personal or financial affairs and lacks capacity to execute an EPA and EPG.
In respect of the material filed from Dr B, it is difficult to reconcile the somewhat inconsistent information in this material. On the one hand there is a reference on 21 March 2018 to an assessment 'at length' and an MMSE score of 18/30. Dr B's opinion on that date is that although the represented person has cognitive impairment she had 'a good understanding of the undertaking of giving her power of attorney'. In his report of 11 April 2018 though, Dr B states that he has not tested or tested thoroughly the represented person's capacity to manage complex financial or legal affairs and is unsure of her capacity to make such decisions or to give an EPA and EPG. He is unsure whether he was involved in the process.
Dr SK is the only health professional who does not identify a cognitive impairment in the represented person or any impact on her capacity to make decisions about her care. This report follows what appears to have been a consultation when the represented person was at the respite facility following her discharge from hospital.
Dr SK's report does not disclose how the represented person was assessed, makes no mention of the diagnosis which had by that time been made by a geriatrician and is inconsistent with all the other professional evidence including that of Dr B who is the long term general practitioner of the represented person and reports he has seen her nine times in the last 12 months. For these reasons little weight is given to Dr SK's report.
To the extent that there is any conflict in the professional opinion evidence regarding the represented person's capacity between that of Dr B and Drs K, I and V the Tribunal prefers the evidence of Dr K, Dr I and Dr V to that of Dr B.
Dr K and Dr I are geriatricians and have specialist qualifications in the care and assessment of elderly patients and have reported on assessments of the represented person and are in agreement about their findings.
Dr V has specialist qualifications in the assessment of persons with neurological impairment. Her findings, based on her lengthy assessment of the represented person conducted over two sessions, are supported by both Dr K and Dr I.
Dr I provided the second opinion about the represented person's capacity sought by the solicitors then acting for the represented person.
There was no real challenge to the specialist medical evidence in the hearings other than statements of L, who challenges the assessment of Dr K on the basis that the represented person was acutely unwell at the time of his assessment (noting that this proposition was not accepted by Dr K in his oral evidence (ts 27, 3 Aug 2018)) and that Dr V saw the represented person only after a fall on 22 June 2018.
In his report dated 30 July 2018 Dr I refers to his two appointments with the represented person on 14 May and 16 July 2018.
Dr I's opinion as to the diagnosis and the impact on the represented person's capacity to make decisions is consistent across time with that of Dr K, first given in March 2018 and that of Dr V given in July 2018.
Based on this evidence the Tribunal does not accept the assertion of L that the represented person lost capacity only after a fall in June 2018.
Considering all of the professional and lay evidence including that of family members, the Tribunal finds that the presumption of capacity of the represented person is displaced.
The Tribunal finds that by reason of a mental disability, being a dementia, that the represented person is incapable of making reasonable judgments about her estate. She is therefore a person for whom an administration order may be made pursuant to s 64 (1) of the GA Act.
In respect of the guardianship application the Tribunal is satisfied based on the reports of Dr, K, I and V that the represented person is unable to look after her own health and safety and is reliant on others for her care and must be supervised to ensure her safety. The Tribunal finds based on the evidence of Drs B, K, V and I that the represented person is not able to make reasonable judgments about her person and the evidence of Drs V, I and K that the represented person is in need of oversight care and control in the interests of her own health and safety. The represented person is therefore a person for whom a guardianship order may be made.
Is the represented person in need of a guardian and an administrator of her estate or are there less restrictive alternatives
An EPA and EPG can be a less restrictive means by which the financial and personal affairs of a person who has lost capacity can be managed and is this way they may be a less restrictive alternative to the making of a guardianship and or an administration order (s 4(4) of the GA Act).
L says that the represented person appointed her and the applicant as her attorneys and enduring guardians in the 'good days' in 2013 and 2016 (ts 48, 3August 2018).
L says that she and the applicant were appointed in these roles as the represented person did not trust her other children and wanted both of them (ts 48, 3 August 2018). The EPA executed in 2013 records the address of the applicant in New South Wales. There is no suggestion that the represented person was not capable of making these choices when these documents were executed.
In respect of the revocation of the 2013 EPA and the 2016 EPG, L relates that she spoke to the represented person when she was in respite care after discharge from hospital, about the applicant's reported statements that the represented person should go into a nursing home and that the applicant wanted to control the represented person's money. L says she told the represented person that if she, L, did not agree to these two things that the applicant would take L to the Tribunal (ts 48, 3 August 2018 and ts 36, 4 September 2018).
L says that she then went to the stockbrokers (F and B's) offices on or around 5 March 2018 and this is 'how the ball started and about getting [the] enduring power of attorney changed' (ts 50, 3 August 2018).
Emails from B to the applicant dated 6 March 2018 challenge the applicant's views about the mental state of the represented person and state that in B's view the represented person is 'coherent, and made rational and measured decisions'. The applicant responds that she prefers to rely on medical opinion. B questions the applicant's right to 'question [financial] system' the represented person established herself. B states that if asked they would bring in the legal teams from Lavan Legal to support L as to the represented person's desires (Document 15).
The email from B also refers to a new will prepared for the represented person received from the solicitors and sent to the represented person for her signature.
F, in his evidence in the second hearing, said that meeting with L had taken place and that they had discussed how the applicant had wanted to 'change everything around'. He referred to the applicant's reported view that 'all the money should be put into real estate not in shares' (ts 15, 4 September 2018).
F said he did not speak to the applicant directly or to the represented person at that time but was told of the applicant's comments by L (ts 15, 4 September 2018).
The applicant denies she proposed that all the shares be sold and property investments be made with the represented person's funds and says that she had said to the represented person and L that a house should be purchased for L and A (ts 18, 4 September 2018).
F says that L was concerned and he had advised her to get some legal help and L had then contacted the solicitors (ts 18, 4 September 2018).
L says that she received papers from the solicitors in March 2018 and that Dr B was happy to sign the EPA and the EPG but there was a problem with documents sent out by the solicitors so that it could not be registered at Landgate. L says she could not get into see Dr B at the later time (ts 53, 3 August 2018).
According to L an EPG was executed by the represented person on 7 March 2018 when the represented person had left the respite facility to have lunch with friends and for assessments to occur at her home.
The EPG dated 7 March 2018 filed shows the appointment of L is not witnessed as required by s 110E(1)(c) of the GA Act. L's acceptance is witnessed by a Justice of the Peace and another person. Both witnesses are identified with a pharmacy stamp.
An EPA executed on 18 April 2018 was registered at Landgate by the solicitors on 19 April 2018.
L says that Dr B had signed both documents as a witness (ts 65, 3 August 2018) but this does not coincide with the witnessing of the EPG dated 7 March 2018. It may be that L is mistaken (or Dr B is) about the dates and sequence of events. Dr B does refer to a consultation where documents are brought in but this is later on 21 March. The 7 March date is closer to the report given by Dr SK who saw the represented person in respite care but again the 7 March date predates that report.
In the first hearing the instructing solicitor, Ms Lorraine Madden said she spoke to the represented person for the first time when she visited her at her home on 28 April 2018 and was at that time satisfied that the represented person could give instructions.
On two further occasions in May and July 2018 Ms Madden said she attempted to speak to the represented person. In May she did not see the represented person because she was reported by L to be unwell. Ms Madden saw and spoke to the represented person for the second time on 27 July 2018 in July. At that meeting Ms Madden formed the view that their conversation was confusing to the represented person and did not continue the interview (ts 6, 3 August 2018).
Following that meeting and on receiving the report of Dr I on 2 August 2018, Ms Madden said that she had doubts about the represented person's capacity to instruct her but that she considered it would have been inappropriate not to have attended the hearing having initially taken instructions from the represented person.
On the day of the hearing she said that the represented had improved and was a 'different person' (ts 7, 3 August 2018). She said 'last week I didn't feel comfortable. I have no concerns with my conversation with her today…' (ts 7,3 August 2018).
Counsel for the represented person did not say when she was instructed but confirmed she had met directly with the represented person and was satisfied she could give instructions.
Counsel for L says that L had only been separately legally represented just prior to the first hearing as she did not appreciate that her interests may not be the same as the represented person's.
According to F's evidence Lavan Legal had acted in the past for the represented person in relation to the dispute with J and in relation to other matters. From the email of B to the applicant dated 6 March 2018 they had recently drawn a will for the represented person.
However, if the facts as conveyed to the Tribunal in L's evidence are the entire facts in respect of :
•the revocation of the 2013 EPA;
•the execution of the 2018 EPG on 7 March 2018;
•the reported attempt to register an EPA executed on 7 March 2018 at Landgate;
•the execution of the 2018 EPA on 18 April 2018; and
•and registration of the 2018 EPA and deed of revocation on 19 April 2018.
Then it appears that this all occurred prior to the date of the first direct contact Ms Madden had with the represented person on 28 April 2018.
The Tribunal is not aware of what other direct contact Lavan Legal may have had with the represented person.
The revocation of the 2013 EPA and attempts to execute the EPA and EPG in 2018 occurred against the background that the represented person had just been discharged from hospital after an illness, had been given a dementia diagnosis, the appointed attorneys and enduring guardians were in conflict about decisions for her and proceedings had been initiated in the Tribunal.
The submission that L was relying on the assessment of Dr B in respect in her attempts to have a new EPA and EPG executed by the represented person does not appear to the Tribunal to coincide with the records of Dr B produced to the Tribunal.
Given the expert professional evidence about the represented person's incapacity to make legal decisions which has been consistent over time, it seems more likely than not, that even when the solicitor took instructions from the represented person directly on 28 April 2018 that she was not capable of giving them.
The 2018 EPA and EPG
To execute an EPA and an EPG the donor must have full legal capacity (s 104(1a) and s 110B of the GA Act) and the instruments comply with formality requirements set out in s 104 and s 110E of the GA Act.
The evidence of Drs K and V regarding the represented person's incapacity to execute the 2018 instruments was unchallenged in the first hearing, the only issue raised was L's understanding of the medical information given and its potential relationship with the execution of the documents.
The 2018 EPG is not witnessed in compliance with s 110E(1)(c) of the GA Act which requires the appointor's signature to be witnessed. Even if it had been argued there had been substantial compliance with the formality requirements, the weight of the professional evidence supports the finding that the represented person was not capable of executing the 2018 EPG.
The professional evidence together with L's evidence that the represented person did not have an understanding of her estate at the relevant time supports the finding that the represented person was not of full capacity at the time of execution of the 2018 EPA and so that process was not effective to create an EPA.
Although it is accepted that the represented person's capacity to revoke the 2013 EPA is clearly in issue on the available evidence, the impracticality of reviving the 2013 EPA and 2016 EPG as submitted by counsel for L is accepted. The relationship between the applicant and L as joint enduring guardians and joint and several attorneys has broken down. Additionally, the Tribunal does not have the power to declare the validity of an EPA in contrast to the provisions in respect of the EPG (s 110K).
The revocation of the 2013 EPA removed the lawful authority by which oversight and substitute decisions might be made for the represented person's estate.
The Tribunal accepts the submission of the applicant that given the represented person's substantial estate and the represented person's inability to monitor or have oversight of decisions that are being made about it, that she is in need of an administrator of her estate.
In respect of personal decisions the Tribunal finds that the represented person is in need of a guardian. She does not have a valid EPG and there is contention between the formerly appointed joint enduring guardians about decisions which should be made for her.
Although the applicant concedes that she has had limited direct contact with the represented person, visiting in January and August 2018 she asserts that prior to April 2018 she has always had regular telephone contact with the represented person and it was during those calls this year that she became increasingly concerned about the represented person's mental state.
The applicant says that she had been concerned about the hygiene levels in the house when she had visited in January and when she was advised by L that the represented person had been hospitalised for diarrhoea twice, she was concerned she was not fulfilling her duties as guardian and had to do something (ts 37, 4 September 2018).
The applicant says that although L loves the represented person she has her own difficulties and is unable to provide the care the represented person now needs.
The Tribunal accepts that the applicant has had limited direct contact with the represented person and with L; however the applicant's assessment of the represented person's functioning and dependence is consistent with the assessments of the health professionals.
In day-to-day matters L says she assists the represented person to attend Dr B, to go to specialist appointments and for follow up at hospital appointments. In this regard the needs of the represented person have been met as presumably L has been informally consenting to medical treatment as the nearest relative (s 110ZD of the GA Act).
However, L's own evidence is that health professionals did not communicate with her and would not give her information (ts 58, 3 August 2018). L denies being told of the represented person's cognitive impairment by Dr K and says she did not recall the discussions with the applicant or the social worker (ts 48, 3 August 2018).
While the Tribunal prefers the evidence of Dr K regarding the advice given about the represented person's impairment to L's evidence on this point, it is accepted that L may not have understood what was being communicated to her.
It is accepted as submitted on her behalf that L may have been 'in denial' and distressed about the represented person's hospitalisation.
Despite submissions made on her behalf about her acceptance of the medical opinions since these proceedings commenced, from L's direct evidence in the hearings it does not appear that there is even now full appreciation or acceptance by her of the professional opinion regarding the represented person's incapacity and dependence on others.
The applicant says that L experiences health and other problems of her own. Whatever the reasons for difficulty, it appears to the Tribunal that L has been unable to communicate effectively with the health professionals. In these circumstances the Tribunal finds that the represented person is in need of a guardian to make treatment decisions and have formal oversight of her medical treatment and that the less restrictive alternative of L consenting to treatment is not sufficient to meet the represented person's needs.
Services and accommodation
Although the Tribunal accepts the submission of the applicant and the report of the Public Advocate that L is devoted to the represented person the Tribunal finds that she is quite limited in her understanding of the medical and other health professional's input and the impairments experienced by the represented person. The Tribunal finds for this reason that it is likely she has been and continues to be limited in her ability to appropriately monitor and respond to the represented person's progressive condition and changing needs.
Although L says she does not accept all of the conclusions of the ACAT team regarding the represented person's dependence, the ACAT report is said to indicate the home environment met the represented person's needs when this assessment was conducted and this view is supported by the Public Advocate's representative.
L says that services have been increased and the represented person now also accesses a day placement once per week.
It appears to the Tribunal though that the external support services L described in the hearing on 4 September 2018 are limited (ts 41-43, 4 September 2018). For example, the represented person receives only a half hour to one hour service per day on most week days. This is despite an agreement L is reported to have given to the hospital social worker in February 2018 that if the provided services at level 2 were insufficient that services would be purchased privately. L indicated that the represented person is on a wait list for level 4 services (ts 51, 3 August 2018).
L also says that the represented person is never left alone since her discharge from hospital although this is challenged by the evidence of J, who says the represented person was at home alone when J says she visited at Easter and the represented person was locked in and unable to unlock the door (ts 19, 4 September 2018).
In the judgment of the Tribunal there needs to be an informed professional reassessment of the existing services in light of the medical opinion of Dr K about supervision and community access and Dr I regarding 24 hour supervision.
If the available services and care arrangements are not sufficient to meet the represented person's needs then a decision might need to be made for the represented person to enter residential care. This would seem to be unnecessary since the represented person is reported to have the financial resources to purchase an equivalent and likely higher level of care for herself which could be delivered to her in her own home.
The Tribunal accepts that L has arranged some support services but her approach seems to be reactive to these proceedings and she has not demonstrated on her own evidence a sufficient understanding of the needs of the represented person as explained to her by the health professionals or an ability to engage with them effectively to achieve this reassessment on her own.
For these reasons the represented person is in need of a guardian to determine the services to which she should access and to determine where and with whom she should live.
Contact
It is also alleged by the applicant that when persons have expressed criticism about the care needs of the represented person that their contact with the represented person is then limited by L.
The Tribunal heard evidence about this issue from the applicant, from J and received a statement from an old friend of the represented person, E.
The applicant says she has made numerous attempts to contact the represented person by telephone since April 2018 and has been unable to get through and could not leave a message. She says prior to making the applications to the Tribunal she had maintained regular telephone with the represented person.
J received a letter dated 11 May 2018 from the solicitors then acting for the represented person asking her not to contact the represented person until the proceedings had concluded.
J says she is not told when the represented person is admitted to hospital or respite care and asserts that letters and cards from her are not passed on to the represented person and a gift of books was put in the bin by L.
J says when she has attended the house that L had driven off but that the represented person was locked in and could not unlock the door. J also says that cousins asked her at a family funeral why they could not see the represented person. J argues that the represented person would benefit from increased socialisation particularly with her old friends.
E in her written statement says that she had suggested that L get treatment for her chronic pain as she believed L's lack of sleep was impacting on the way L interacted with the represented person, alleging she was verbally aggressive with the represented person at times. E states she believes that L took offence to this and has restricted what had been weekly visits and meals to only one occasion since then.
L says that the represented person does not want anything to do with J and is upset when she comes into contact with her giving the example of the first hearing when the represented person saw J and was reportedly distressed. L's view is supported by the affidavit of R, a friend of L and the represented person, who states that the represented person did not want contact with J.
L says that E had said while represented person was in hospital that she should go into a nursing home and that she, L, had initially limited the contact of the represented person with E but this had resumed (ts 60, 4 September 2018). The resumption of contact is not consistent with E's statement to the Tribunal (Document 77).
L says she had fallen out with the applicant when the applicant had visited the represented person in January 2018. L said that the applicant had an 'agenda' and wanted to take over the represented person's money as she wanted to meet with the stockbrokers and the accountants (ts 36, 4 September 2018).
In respect of the applicant's statement about her unsuccessful attempts to contact the represented person by telephone over the period since the applications were made, in the first hearing L said the telephone had been faulty for some months (ts 79, 3 August 2018) and in the second hearing, she said the telephone had rung but she did not answer it as it was not her phone (ts 32, 4 September 2018).
L says the applicant could telephone her on her mobile and that she would start sending emails to the applicant again.
L denies that she had attempted to limit the contact of the applicant with the represented person but the explanations given by L for the lack of telephone access are not persuasive.
In respect of the allegations that contact with the represented person is limited by L, the Tribunal accepts the assertions put by the applicant, and supported by J and E.
The lack of access to and support to use the telephone to maintain contact is likely to contribute to the social isolation of the represented person and does not maintain her supportive relationships.
The Tribunal also accepts the assertions of J that the represented person would benefit from socialisation and this is consistent with the recommendation of Dr K.
For these reasons there is need for a guardian to have the function to determine the contact the represented person should have with others.
In the absence of any informal monitoring, because the applicant lives in New South Wales and the represented person's other children are said to be estranged from her, there is a need for formal oversight and monitoring of the represented person's care needs and communication maintained with health professionals and with the applicant and other supportive relationships of the represented person.
The Tribunal is satisfied that there is no less restrictive alternative to the appointment of guardian to meet the needs of the represented person.
What are the wishes of the represented person
The represented person is reported to have expressed differing wishes to a number of people over the course of her hospitalisation and this proceeding.
The applicant maintains the represented person was greatly distressed about her home situation prior to the applications being made; others, in affidavits filed by friends of L and the represented person, maintain she was happy and contented.
The represented person is said to have given differing views to the applicant and the hospital social worker and to L about the option of entering residential aged care and her attitude to her time spent in the respite facility.
In her interview with the Public Advocate's investigator the represented person is reported to have expressed wishes that L be her guardian and administrator, to Dr V she is reported to have said that she would not want a family member to manage her financial affairs indicating her preference for the stockbrokers and if a family member were to be involved she repeatedly stated she preferred her sister, the applicant (Document 51).
Dr V both in her written report and in her oral evidence reports that the nature of the represented person's cognitive impairment means that she is highly vulnerable to influence from the person present with her in the moment (ts 25, 3 August 2018). The Tribunal places considerable weight on this evidence as Dr V has recognised expertise in assessing persons with cognitive impairment and the assessment conducted of the represented person by her was an extensive one.
The Tribunal accepts this expert evidence as an explanation for the variability in the expressed wishes of the represented person and finds that this reinforces the represented person's vulnerability if the extent of her cognitive impairment is not recognised by others dealing with her needs.
The variability of the wishes expressed by the represented person means that the Tribunal cannot identify her wishes with any certainty in respect of the matters before the Tribunal. In this circumstance her previous actions may be a more reliable indication of those wishes (s 4(7) of the GA Act).
In this regard the Tribunal has regard to the following.
•The appointment of her sister the applicant and L together as her enduring guardians and joint and several attorneys at times when the applicant was already living in New South Wales and it is understood L was living with the represented person. As L says, the represented person wanted both of them; and
•That the represented person has retained the services of the stockbrokers for many years and the represented person has had L and her daughter, A, living with her in her home for some years and according to the material before the Tribunal, financially supports them.
Who is suitable for appointment as guardian and administrator
The applicant proposes that the Public Advocate and Public Trustee be appointed as guardian and administrator.
The applicant does not press for the represented person to be admitted to residential care as long as her care needs are met and says that an independent guardian is required to ensure that services to provide that care are in place and that contact with her and the friends of the represented person can occur.
The applicant did not support the appointment of F. She submits that there needs to be oversight of the entire estate of the represented person due to its size and complexity. She says that there are different elements of the estate including a self-managed superannuation fund and the shareholdings which are managed by different people and overall monitoring and oversight of the entire estate is required.
The applicant says she suggests no impropriety in the financial management of the shareholdings on the part of the stockbrokers but says they are not able to provide the overall monitoring because they are precluded from involvement in the self-managed superannuation fund and are not independent because of the role they played in the changes in the guardianship arrangements.
The represented person's daughter J proposes herself for appointment saying that she has no involvement financially and is therefore independent.
J's appointment as guardian or administrator is not consistent with the represented person's known wishes.
J acknowledges that she and the represented person had been in a legal dispute in the past and there is an estrangement between them. J now says that the represented person looks pleased when J visits the represented person's home and she may be willing to resume contact. As J says the represented person may not now remember the reasons for their past estrangement. It is the case though that when capable the represented person did not choose J as an attorney or enduring guardian.
J's appointment is opposed by L who is the represented person's primary carer. There is evidence of an historical conflict between them and now allegations that L limits contact that J wishes to have with the represented person. It is unlikely that either could work with the other.
For these reasons the Tribunal finds that J is not suitable for appointment as either guardian or administrator.
In principle proposals for the appointment of guardian and administrator were filed by solicitors for L proposing the appointment of L and a friend R, as joint guardians and L and F as joint administrators.
It is submitted for L that the appointment of R as the joint guardian with L will enable L to have another person to filter and assist with information given by health professionals. It is submitted that the period has been an emotional one for L but that the process in the Tribunal with the focus on the medical evidence and the represented person's limitations has meant that L is willing to bring R in to assist her as a joint guardian (ts 29, 4 September 2018).
The applicant says that although R is a good friend to L she is reliant on the information given by L and lacks independence. This assertion is supported by R's affidavit filed in July 2018 by the then solicitors for the represented person (Document 120).
In the affidavit, R refers to the views expressed by the represented person and L and L's daughter A, and her closeness to them and regular contact with them. She reports an allegation made by A and L of a breach of confidentiality by the applicant in respect of A.
It does not appear from the affidavit that R has had any direct contact with the applicant or with any health professionals dealing with the represented person so the Tribunal does infer that R is reliant on information regarding the matters before the Tribunal from L.
A joint guardian has equal authority in decision-making for a represented person and decisions of joint guardians must be unanimous (s 53 of the GA Act). The role proposed to be played by R as support person or interpreter of medical information for L is not consistent with this provision.
For the reasons given above, the Tribunal is not satisfied that L has sufficient appreciation of the needs of the represented person and an ability to communicate effectively with health professionals to perform the functions of guardian to determine services, health care and accommodation for the represented person. On the available material the inclusion of R as joint guardian with L would not change this.
In respect of the proposal that F and L be appointed administrators it is proposed that L would deal with the day-to-day expenses, and F would continue to manage and would decide the source of funds to draw from, would buy and sell shares, make decisions in relation to real estate as necessary and be the overall controller. It is asserted that L and F have been able to cooperate in this way for many years, and F had optimised the financial position of the represented person and this would continue (ts 26, 4 September 2018).
No proposal for remuneration was filed as ordered but F explained in the hearing the fees charged by his firm as stockbrokers and said that it was not intended that any additional fees be charged for the administration of the estate.
In support of the proposal F says that the represented person understands her finances but likes to be reassured (ts 25, 4 September 2018). F explained he has had regular meetings with the represented person as there have been matters to discuss. He says he had seen her many times, up to weekly, since her discharge from hospital until he left for an overseas trip. From this it can be inferred that the represented person was called on in those meetings with F to discuss and decide matters or to authorise decisions that had been made on her behalf.
On F's evidence, the impairments in cognition which Dr V describes as obvious in conversation have not been apparent to him in these discussions. While F acknowledges the represented person has some memory impairment and says L has made him aware of the represented person's diagnosis, he describes the represented person as near 'normal'.
As F and L do not appreciate the nature and extent of the represented person's impairment and dependence it is not appropriate that they be appointed in substitute decision making roles for her. Their lack of understanding has been demonstrated in the role they played to revoke the 2013 EPA and 2016 EPG and create new authorities and in their evidence before the Tribunal.
Further, the Tribunal does not accept the submission made by counsel for L that that the conflict with the appointment of F as administrator is more technical than real (ts 28, 4 September 2018). F himself identifies no conflict in his role as the appointed administrator continuing his engagement as stockbroker and having oversight of that engagement. This issue raised in the first hearing is not addressed by the willingness of F to forgo any fee for the administration of the estate.
The expressed wish of the represented person as described in the report of Dr V, that the stockbrokers continue their role can be provided for in directions to the administrator but ultimately a decision as to the engagement of agents to act in respect of an estate is for the appointed administrator (see s 76 of the GA Act).
Any such decision must be made considering the best interests of the represented person with full knowledge of the extent of the estate of the represented person which the Tribunal does not have before it and any other relevant factors.
The Public Advocate submits that either L or a joint appointment of the Public Advocate and L as guardians would be appropriate. However, the joint appointment of L and the applicant as joint enduring guardians has not worked in the past to meet the represented person's needs as their relationship has broken down and they now no longer communicate effectively.
There is significant risk that a joint appointment might delay decisions being made for the represented person, in particular regarding services to be delivered to her which in the view of the Tribunal requires immediate attention.
In respect of the contact function the Tribunal finds that L preferred her own wishes to that of the best interests of the represented person when she did not act to maintain the supportive relationships of the represented person with the applicant and E (and potentially with J) and so L could not be appointed with the function to determine contact the represented person has with others (see s 51(2)(g) of the GA Act).
There is the additional consideration that L is financially dependent on the represented person for housing and other financial support for herself and her daughter so that her appointment may be precluded pursuant to s 44(1)(b) of the GA Act.
For the reasons given the Tribunal is satisfied that there is no one proposed who is suitable for appointment as guardian and that it is in the best interests of the represented person that the Public Advocate be appointed as limited guardian of the represented person with the functions referred to above.
The Tribunal is satisfied that a limited order guardianship order with the functions identified will meet the needs of the represented person so that a plenary guardianship order is not needed.
The Tribunal is satisfied that a plenary administration order is appropriate and that the Public Trustee's appointment will provide the requisite independence and expertise to administrator the estate.
The Tribunal will make orders to provide for the continued financial support of L and A as has been the represented person's past practice and for consideration by the administrator to retain the services of the stockbrokers which is the expressed wish of the represented person.
As the family conflicts appear entrenched and the represented person has a progressive condition she will likely require substitute decision-makers for her lifetime. In this circumstance five year orders are appropriate.
Applications pursuant to s 110N and s 109(1)(c)of the GA Act
These applications were initiated by the applicant.
As an attorney then appointed under the 2013 EPA, the applicant was required to act with reasonable diligence to protect the interests of the donor (s107(1) of the GA Act). An enduring guardian must act in the best interests of the represented person (s 110H(a)) to protect the represented person from neglect (s 51(2)(d)) and to maintain the supportive relationships of the represented person (s 51(2)(g)).
In the circumstances of the disagreement between the joint enduring guardians and the joint and several attorneys about decisions for the represented person the applicant quite properly brought the applications to the Tribunal.
The Public Advocate consented to her substitution as the applicant in the s 110N and the s 109 applications to resolve the question of the jurisdiction of the Tribunal to determine these matters.
As the statutory officer with the function (amongst others) to bring applications to the Tribunal (s 97(1)(a) of the GA Act) it must be the case that the Public Advocate has a proper interest in bringing applications to the Tribunal.
For the reasons given above the Tribunal concludes that the represented person was not of full capacity at the time of the execution of these instruments and that they are not effective to create either an EPA or an EPG for her.
Further, the Tribunal cannot draw from the execution of these documents a reliable expression of the wishes of the represented person for the reasons given.
The EPA is also inconsistent with the appointment of a plenary administrator (s 108 of the GA Act) and should be revoked.
Although the EPG was not compliant with the formality requirements to create an EPG, to put the position beyond doubt the EPG is revoked.
Orders
The Tribunal declares that the represented person:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)is in need of an administrator of her estate;
(c)is incapable of looking after her own health and safety;
(d)is unable to make reasonable judgments in respect of matters relating to her person;
(e)is in need of oversight, care or control in the interests of her own health and safety; and
(f)is in need of a guardian,
and the Tribunal orders that:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
The administrator is authorised to:
2.Apply or expend monies of the represented person for the maintenance, necessaries comforts and benefits of the represented person, her daughter [name deleted] and granddaughter in such a manner and to such an extent as the administrator having regard to the circumstances and the value of the estate of the represented person considers proper and reasonable.
3.The administrator is directed to consider the expressed wishes of the represented person and the long-standing engagement of [name deleted] as stockbrokers by the represented person when determining the employment of agents pursuant to s 76 of the Guardianship and Administration Act 1990.
4.The administrator be at liberty to apply for orders pursuant to s 72(3) of the Guardianship and Administration Act 1990 for gifting on behalf of the represented person.
5.The hearing book produced for the hearing of the applications be provided to the Public Trustee, including copies of all medical reports together with the transcripts of the hearings of 3 August 2018 and 4 September 2018 to assist the administrator in the administration of the estate.
6.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be 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)subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person;
(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 administration and guardianship orders are to be reviewed by 6 September 2023.
GAA 796/2018
In relation to the enduring power of guardianship dated 7 March 2018 made by [the represented person] (the appointor) appointing [L] the Tribunal declares and orders:
1.With her consent the Public Advocate is substituted as the applicant.
2.The enduring power of guardianship is revoked.
In relation to the enduring power of attorney dated 18 April 2018 made by the represented person appointing [L] as her attorney the Tribunal declares and orders that:
1.With her consent the Public Advocate is substituted as the applicant in this matter.
2.The enduring power of attorney is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
7 NOVEMBER 2018
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