JW No 2
[2019] WASAT 117
•22 NOVEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JW No 2 [2019] WASAT 117
MEMBER: MS F CHILD, MEMBER
HEARD: 13 AUGUST 2019
DELIVERED : 22 NOVEMBER 2019
FILE NO/S: GAA 834 of 2019
JW
Represented Person
Catchwords:
Guardianship and Administration - Review of guardianship order - Moderate cognitive impairment - History of hospital admission for malnutrition - Application for the appointment of administrator of estate - Enduring power of attorney and Enduring power of guardianship not less restrictive alternatives to orders - Attorney benefitted financially and had not acted protectively under the power - Enduring guardian in position of conflict as guardian - Family conflict - Public Advocate confirmed as limited guardian - Public Trustee appointed plenary administrator - Enduring powers revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 43(2)(c), s 44(2)(b), s 51(2), s 51(2)(g), s 64, s 65, s 108, s 110F, s 110H, s 110ZD
Result:
Public Advocate confirmed as limited guardian
Public Trustee appointed as plenary administrator
Enduring power of guardianship revoked
Enduring power of attorney revoked
Category: B
Representation:
Counsel:
| Represented Person | : |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
EW [2010] WASAT 91
REASONS FOR DECISION OF THE TRIBUNAL:
These are the reasons of the Tribunal for decisions made on review of a guardianship order made for JW and on an application for the appointment of an administrator of her estate and for intervention in an enduring power of guardianship made by her in 2016.
The applications before the Tribunal
An application seeking the appointment of a guardian for JW and for the appointment of an administrator of her estate was made in March 2019 by the social worker (the applicant) from a hospital where JW had been an inpatient since January 2019.
When those applications were first heard by the Tribunal on 9 May 2019, the applicant also made an oral application for intervention in an enduring power of guardianship (EPG) made by JW.
Background
JW is an 89‑year‑old woman who was widowed in March 2016. JW has three adult children A, L and C. Following her spouse's death JW sold her home and moved to live with C. JW is reported to have had limited contact with L and A since then.
JW executed an enduring power of attorney (2016 EPA) and enduring power of guardianship (EPG) on 24 October 2016 by which she appointed C as her sole attorney and enduring guardian. The witnesses to these instruments were solicitors and the 2016 EPA was styled to be in effect from its execution.
The material filed with the applications for the appointment of a guardian and administrator for JW disclosed that in January 2019 JW had been admitted to hospital suffering severe malnutrition with electrolyte imbalance and at risk of refeeding syndrome.
The health professionals reported that it was likely that JW's condition had been present for some weeks prior to her admission to hospital when she was living at home with her daughter C but this was not certain. The consultant physician Dr AP, who attended the first hearing in May 2019 (first hearing) explained that refeeding syndrome includes potentially severe complications when food is reintroduced to a severely malnourished patient.
During her hospital admission JW's stated wishes, to be fed and to receive treatment, were reported to be incongruent with her actions of repeatedly pulling out nasogastric and intravenous tubes, cannulas and PICC lines. JW's actions had raised concerns about her capacity to make decisions about her treatment. Dr OL, a consultant psychiatrist, assessed JW and gave the opinion that JW lacked capacity to make treatment decisions.
Dr OL said that JW had demonstrated significant memory impairment, particularly short term memory impairment while in hospital. Dr OL said that JW's actions in pulling out tubes may have been because she did not recall earlier agreeing to the insertion of those tubes to provide food and hydration. It was Dr OL’s opinion that JW was unable to hold significant information to make decisions in a consistent manner. According to the material before the Tribunal JW was unable to recall information about medical procedures even within the same conversation with the medical practitioner concerned. An example given is that a PEG tube had been inserted for the purposes of feeding JW with her consent and with the consent of her children but JW was reported to not recall the discussions she had had with doctors about the procedure and denied she had consented.
At the time of the first hearing Dr OL reported that JW did not understand why she was in hospital and did not see the need for it. Dr OL's opinion was that while JW was now medically stable (after a hospital admission of some five months) she lacked capacity to make decisions about her medical treatment and her care.
The Occupational Therapist (OT) reported that she had assessed JW as requiring 24 supervision and care because her cognitive impairment caused concerns for her safety.
During JW's hospital admission, the applicant reported there had been significant conflict between C and JW's other daughter L and son, A, which had impacted on JW and on the provision of care in the hospital. The applicant reported that the conflict was such that the hospital had put in place a visiting roster so that JW's children would not be in the same room when visiting.
It was also reported in the material submitted, and confirmed in oral evidence in the hearing, that nursing staff had witnessed two incidents on 10 February and on 12 February 2019 when C used hostile and verbally abusive language to JW, and on 12 February 2019 C, was reported to use excessive physical force on JW.
C acknowledged the events as described by the hospital staff had occurred and said that she regretted her actions and that she should have spoken more quietly to JW. In respect of the physical force used, C agreed she had taken JW by the collar and moved her across the bed, but said her intention had been misconstrued as she was only trying to reposition JW in the hospital bed. JW is reported to have been visibly distressed by both incidents.
At the hearing on 9 May 2019, JW was said to be ready for discharge from hospital but there was disagreement about her discharge destination. The health professionals, including the OT, recommended 24 hour care. C said that with services JW could return home to her.
JW reportedly had expressed inconsistent views to different hospital staff about where she wanted to live after her discharge from hospital. L and A said that if JW returned to live with C that they had concerns about her care and asserted they would again be excluded from contact with JW by C.
JW was legally represented in the proceeding and opposed any orders being made.
After hearing from JW, from counsel on her behalf, from the treating team members, the children of JW and from the Public Advocate's investigator (investigator), the Tribunal determined that JW was a person for whom a guardian could be appointed and that there was a need for an order to be made. Brief reasons for that decision were given at the conclusion of the hearing, now published as JW [2019] WASAT 115.
Orders were made appointing the Public Advocate as limited guardian of JW, to determine where and with whom she was to live, to make treatment decisions on her behalf, to determine the services to which she should have access and the contact she should have with others.
This last function was included because of the level of conflict between the children of JW and the effect it was reported to have on her and those providing care to her. The guardianship order was made reviewable in August 2019 to be heard together with the application for the appointment of an administrator of JW's estate.
On the oral application made by the applicant seeking intervention in the EPG, the Tribunal ordered that the EPG in favour of C be suspended during the appointment of the Public Advocate as guardian.
The hearing of the application for the appointment of an administrator was adjourned to a directions hearing.
At the directions hearing on 14 May 2019 the Tribunal made an order under the emergency provision in s 65 of the Guardianship and Administration Act 1990 (WA) (GA Act) appointing the Public Trustee with the powers of a plenary administrator in respect of JW's estate.
The order was made pending the determination of the question of whether JW was a person for whom an administration order could be made, as the Tribunal was satisfied in the circumstances and on the available medical evidence that JW may be a person for whom an administration order may be made and there was an immediate need to make provision for the protection of her estate.
In making that order the Tribunal considered JW's reported cognitive impairment particularly her memory impairment and allegations made about C's conduct as attorney acting under the 2016 EPA.
Included in material before the Tribunal was a report from the investigator and correspondence from the former accountant of a family trust of which JW and all her children were beneficiaries (the WTF). The accountant alleged the value of JW's estate had significantly reduced. This had occurred while JW was living with C without any clear explanation from JW or C for that reduction.
The administration application was adjourned to be heard together with the review of the guardianship order on 13 August 2019.
Prior to the August hearing JW's solicitor advised the delegated guardian of the Public Advocate that she could not continue to act as JW was not able to instruct her.
The guardianship review and the application for the appointment of an administrator of JW’s estate were heard on 13 August 2019. Further written submissions were filed by C and L following the hearing.
In the course of the proceedings the Tribunal has received medical and other health professionals' reports, reports from the Public Advocate’s investigator (investigator) and Public Advocate’s delegated guardian (guardian), a report from the Public Trustee and a number of submissions from the parties.
Principles to be observed
In all proceedings brought under the GA Act, including review of orders, the Tribunal must observe principles set out in s 4 of the GA Act which provide:
(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 her own health and safety;
(b)making reasonable judgments in respect of matters relating to her person;
(c)managing her own affairs; and
(d)making reasonable judgments in respect of matters relating to her 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.
Is JW a person for whom a guardianship and administration order may be made
On review of the guardianship order the Tribunal must again determine whether JW is a person for whom a guardian may be appointed according to the criteria set out in s 43(1)(b) of the GA Act and whether she is in need of a guardian s 43(2)(c).
The Tribunal must find that JW is
(i)incapable of looking after her own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to her person, or
(iii)in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
In respect of the application for the appointment of an administrator of JW's estate the Tribunal must, starting from the presumption that JW is capable of making reasonable judgments about her estate, determine whether JW has a mental disability and whether by reason of that disability she is unable to make reasonable judgments about her estate and is in need of an administrator of her estate. (s 64 of the GA Act).
At the original hearing the Tribunal had received reports of cognitive assessments conducted with JW from her general practitioner Dr B. Dr B provided results of mental state examinations (MMSE) of JW conducted from April 2016 to April 2019 all of which indicated that JW has no significant cognitive impairment.
Dr B provided a report dated 29 April 2019 in which he states that JW does not have a mental disability. JW's condition is described by Dr B as a static condition. Dr B's opinion is that JW is capable of simple financial matters but is incapable of complex financial decisions and incapable of legal matters. In respect of complex financial matters and legal matters, Dr B notes that JW 'does in consultation with daughter'.
Dr B considers JW capable in the sphere of personal decision‑making and capable of executing an EPA and EPG.
The Aged Care assessment dated 23 May 2019 reports on JW's hospital admission and her care needs. It notes that JW is 'impulsive and requires prompts to use a four wheeled walker'. The report describes JW's independence as 'compromised by frailty and impaired cognition'. The report concludes JW 'requires supervision and assistance to manage her ongoing care needs'.
A comprehensive summary of JW's first hospital admission prepared by Dr NL, a geriatrician dated 11 March 2019 is also before the Tribunal.
Dr OL the consultant psychiatrist who assessed JW in hospital provided reports and gave evidence in both the May and August hearings.
In the first hearing, when asked to comment on the MMSE results provided by the general practitioner Dr B, Dr OL said the MMSE was not adequate for testing more complex issues such as capacity and decision making (ts 25, 9 May 2019). Dr OL said that this was why the hospital used the Montreal Cognitive Assessment (MoCA) and the Addenbrooke's cognitive assessment when assessing patients. These test results showed that JW had moderate cognitive impairment.
Dr OL undertook an assessment of JW's capacity to make decisions about her estate on 1 June 2019. Dr OL states that JW was suspicious and guarded. However, Dr OL describes JW as eager to demonstrate she had knowledge of her financial affairs.
Despite what Dr OL describes as a lack of rapport in the interview, Dr OL says she was able to form an opinion regarding JW's capacity to make judgments about her estate. Dr OL says that JW has 'a lack of ability to demonstrate rudimentary understanding of daily living expenses or basic idea of her financial state at present and she demonstrated no understanding of how she would access that information.' This according to Dr OL 'would strongly indicate that [JW] had very limited, if any understanding of more complex financial transactions that had occurred in the past' but Dr OL notes she was not called on to assess JW's capacity in 2016.
Dr OL goes on to say that her opinion that JW lacks financial decision making capacity is validated by the Addenbrooke's cognitive examination which was administered a month after Dr OL's assessment in the community setting. This had demonstrated that JW's cognition had persistently remained significantly impaired despite improvement in her physical state.
At that time JW scored 74/100. Dr OL states that a score of 83/100 [or lower] demonstrates a high probability of dementia. The main area of impairment detected was in memory.
In the August hearing the Tribunal had further evidence from Dr JS, a consultant psychiatrist who assessed JW at the request of the solicitor then acting for JW.
Dr JS assessed JW on 11 July 2019 and provided a report to JW's solicitor and a further standard report to the Tribunal dated 11 July 2019.
In his reports Dr JS says that cognitive testing indicates that JW has a moderate cognitive impairment but that this does not indicate she lacks capacity to make financial decisions. Dr OL agrees with this statement. In his report Dr JS gives the opinion that JW has capacity to make reasonable decisions about her estate and financial affairs 'within limits'.
Dr JS notes that JW did not appear to be aware that the Public Trustee was managing her finances. He said JW was reliant on others to pay her bills and to withdraw money for her.
In the medical guide completed by Dr JS, dated 11 July 2019, he gives the opinion that JW is incapable of simple financial matters saying [JW] 'needs assistance to pay bills and manage finances'. In respect of complex financial decisions he states he is 'unsure' of JW's capacity. Dr JS goes on to say JW 'has awareness of assets but she would need assistance and support with complex financial decisions'. Dr JS describes JW as 'fit to make testamentary capacity decisions'.
Dr JS considers JW capable of making treatment decisions provided medication is explained. Dr JS is unsure in relation to JW's capacity to make decisions about her accommodation saying 'provided she is fit to care for herself, but not if she needs residential care [she] needs occupational therapist assessment'. Dr JS appeared to be unaware that OT assessments had occurred. In his report Dr JS states he considers JW capable of making decisions about services.
In his oral evidence in the August hearing Dr JS said that he had understood that he was being asked to assess JW's testamentary capacity rather than her capacity to manage her own finances. He said his view as expressed in his report had changed having received the information that JW's solicitor did not consider JW could instruct her. (ts 233, 13 August 2019).
Dr JS described JW as quite vague on the payment of bills and that she would require assistance (ts 231, 13 August 2019). Dr JS said that changeability and inconsistency in JW's decision making suggests strongly that JW does not have capacity and that the inconsistencies could well be related to her memory difficulty (ts 236, 13 August 2019).
Neither Dr JS nor Dr OL considered that JW's very significant hearing impairment had had an impact on their assessments. Both said JW had responded to their questions indicating she could hear them.
Dr JS said that having heard additional information he had changed his opinion and considered that JW might not be able to give an EPA as it would be open to persuasion or coercion if not done in the right environment (ts 248, 13 August 2019). Dr JS said that JW needed protection if someone was not acting in JW's interests as she would be 'very vulnerable' (ts 241, 13 August 2019).
C submits that JW could work hand in hand with a trusted accountant or a trusted lawyer and so had the ability to manage her own finances in the right circumstances and in a calm environment. When this was put to Dr JS he agreed with A that JW might be called on to make financial decisions in circumstances that were less than ideal.
According to the investigator's report C described JW as regularly meeting with her accountant who had been engaged in 2016. However, in the hearing JW denied she had an accountant or a bank manager from whom she could seek advice as suggested by C (ts 186, 13 August 2019).
JW’s reported memory difficulties were apparent in the hearing: JW said that she had been admitted to hospital for 'something like pneumonia'. She did not refer to the diagnosis of malnutrition (ts 135, 13 August 2019) and said that the admission was 'a couple of years ago' rather than earlier this year. (ts 136, 13 August 2019).
JW made inaccurate statements regarding her former solicitor and arrangements which had been made for JW to see Dr JS for an opinion about JW's capacity. Despite being told the solicitor would not continue to act because JW could not instruct her, JW said it was she who had ‘sacked’ the lawyer. Later, JW said that in arranging the assessment (with Dr JS) the solicitor was 'getting back at [JW] for telling her to buzz off' (ts 147, 13 August 2019). JW said the assessment had been arranged because of 'dislike' of her (ts 148, 13 August 2019). It was clear that JW had no understanding or perhaps no recollection of what had occurred.
In the August hearing JW was told that the Public Trustee had been appointed to manage her estate as an interim measure on 14 May 2019 (ts 132, 13 August 2019) but later in the hearing she asked again who had control of her money and it was apparent she did not recall information given only minutes before.
C said JW was exhausted and under duress in the hearing and questioned whether JW was not telling the Tribunal information 'because she doesn't trust you?' (ts 290, 13 August 2019).
In respect of the medical evidence, including Dr B's report (and the MMSE assessments provided by him), the Tribunal places greater weight on the specialist assessments conducted by the consultant psychiatrists Dr OL and Dr JS. The Tribunal accepts Dr OL's expert opinion that the MMSE is not as sophisticated as the assessments conducted in the hospital and by the psychiatrists.
Where there is any conflict between the evidence of Dr OL and that of Dr JS, the Tribunal prefers the evidence of Dr OL who has assessed JW on more than one occasion, and who had access to other health professionals' assessments of JW including other doctors and other allied health professionals such as the OTs and the nursing staff. Dr JS did not have the benefit of any other allied health assessments and he saw JW only once for what he understood to be an assessment of her testamentary capacity.
Both Dr OL and Dr JS and the OT agree that JW has a moderate cognitive impairment.
Taken as a whole Dr JS's evidence is that JW's decision‑making capacity is impaired.
Dr OL's conclusions that JW lacks capacity to make reasonable judgments about her person and her estate are consistent with JW's presentation in the Tribunal and with reports of her presentation when interviewed by the investigator and by the delegated guardian. It is also consistent with the assessment of the solicitor who had previously appeared for JW in the May hearing that she could not continue to act for JW as she could not take instructions from her.
The definition of mental disability in the GA Act includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
Although Dr OL considers that there is high probability of dementia with JW's scores on the cognitive testing undertaken, JW does not have a dementia diagnosis nor does she have any of the other diagnoses.
As the definition of mental disability is an inclusive one the Tribunal is satisfied that JW's cognitive impairment is a mental disability for the purposes of the GA Act and is satisfied that JW's cognitive impairment, in particular her memory impairment, has a significant impact on her functioning.
The Tribunal accepts the evidence that while JW has made a significant physical recovery that JW's cognition remains impaired and that impairment renders her incapable of making reasonable judgments about her person and her estate.
The Tribunal accepts Dr OL's evidence regarding the impact of impaired memory on JW's decision‑making regarding her medical treatment and her care and the OT's evidence that JW's cognitive impairment places her health and safety at risk, a risk JW does not appreciate.
The Tribunal finds JW remains a person for whom a guardian may be appointed in that she is incapable of looking after her own health and safety, is unable to make reasonable judgments about her person and is in need of oversight and care in the interests of her own health and safety.
All of these findings are available on the evidence and material before the Tribunal including JW's admission to hospital with severe malnutrition, the concession by C in the first hearing that JW needed prompting to eat and to drink, JW's inability to consent to treatment while in hospital and her demonstrated lack of understanding of the reasons for her admission then and now, and the impact of JW's memory impairment on her ability to participate in treatment decisions and care planning.
The most recent assessments indicate that JW remains cognitively impaired and she lacks insight into her current care needs including her need for supervision due to risks to her safety because of that impaired cognition.
The Tribunal accepts the evidence of Dr OL and where relevant that of Dr JS that JW's has memory and cognitive impairment and that she demonstrates limited understanding of her financial affairs or recall of information relevant to the management of her estate such that she is unable to make decisions about her estate and is reliant on others for this.
The Tribunal finds that JW is a person for whom an administration order may be made as she is unable by reason of a mental disability to make reasonable judgments about her estate.
The EPA and the EPG
There is no medical evidence to displace the presumption that JW was capable of the execution of the 2016 EPA and EPG in October 2016.
It also appears that the former accountant NM operated on the basis that JW had capacity to instruct him in 2016 regarding the WFT.
The question for the Tribunal is whether the 2016 EPA and the EPG have operated effectively to meet the needs of JW and are less restrictive alternatives to the appointment of a guardian and an administrator for her.
Is JW in need of an administrator of her estate
It appears from all of the material before the Tribunal including reports by the Public Advocate's investigator that significant decisions were made in respect of JW's estate following the death of her husband in March 2016.
Those decisions included :
1)the sale of the home where JW had lived with her late husband;
2)the transfer of another property from the WFT to C in 2017;
3)the transfer of liability for a debt owed by C to the WFT to JW's beneficiary account;
4)the winding up of the WFT which had been according to L, in existence for over 40 years;
5)the cashing in of an annuity which JW's late husband had reportedly established as an income stream; and
6)the revocation in October 2016 of an EPA made in 2000 which had appointed JW's late husband as attorney jointly and severally with long term accountant NM (the 2000 EPA). NM was the executor of JW's late husband's will and an appointer and guardian of the WFT (together with JW).
7)The execution of the 2016 EPA and EPG made in favour of C.
L and A say that although they were beneficiaries of the WFT they were unaware of the transfer of a property to C or the allocation of C's liability of her overdrawn loan account against JW's beneficiary account and the winding up of the trust until the proceedings before the Tribunal. L says the transfer of the property resulted in a capital gains tax liability and that neither she nor A have received distributions from the trust.
L asserts that the changes made in JW's financial and legal arrangements go against the wishes of JW's late husband. The terms of the trust which provide that the WFT would hold the property until the death of JW and that the trust loan accounts would, according to a memorandum of the late father's wishes essentially 'create equality of distribution of the value' of the trust (and the personal estates of the parents) to each of the children.
The investigator reports that NM, (the former accountant of the trust) indicated that total funds of JW in 2016 were estimated at $1.49 million. The investigator says that NM estimated that JW’s estate had diminished by approximately $556,000 between her spouse's death in 2016 and the time of the proceeding before the Tribunal in 2019.
JW told the investigator that she had used these funds to live. However in the hearing, when asked about her personal expenditure, JW said she lived on very little and does not spend at all (ts 161, 13 August 2019).
Correspondence from NM which is before the Tribunal, indicates that transactions involving the WFT occurred at the direction of JW supported by medical evidence from JW's general practitioner, Dr B, that JW did not have a significant cognitive impairment.
The investigator reports that when interviewed in the course of the proceedings JW said that she managed her own financial affairs and she believed that the WFT was still operating.
In respect of the 2016 EPA (and the EPG) C says that JW had legal advice at the time of execution of these instruments, was capable of making the EPA and EPG and that they represent JW's choices and should be honoured.
In respect of the 2016 EPA which appoints her as attorney, C told the investigator that she had not acted under it other than on the specific instructions of JW, such as paying bills through online banking. C said that JW withdrew money from the bank herself and that she, C, did not provide oversight of the withdrawals. This position is confirmed in her written submission.
In the hearing C confirms that she had produced the 2016 EPA to JW's bank, to lawyers acting in relation to the WFT and to an accountant acting for JW since 2016.
C confirms she has undertaken online banking on behalf of JW. Bank statements before the Tribunal show numerous frequent large transfers of funds online. C's evidence is that the online transactions were conducted by her and the transfers of large sums were made into an account from which cash could be withdrawn. Adopting the reasoning in EW [2010] WASAT 91, the Tribunal concludes that the EPA has been operated by C in respect of banking transactions.
JW gave inconsistent information in the hearing to that which she had given both to Dr OL in the June assessment and to the investigator that she had given C her bank and credit cards to pay for groceries and the gas electricity and water accounts and for petrol.
In the hearing when asked whether she allowed C to use her bank cards to pay for groceries, JW said 'No, certainly not'. When asked whether she had paid for petrol for the cars she said 'Don't try to entrap me on [C]' (ts 161, 13 August 2019).
This evidence is also in contrast to C’s evidence that JW had been very generous and that JW had paid for petrol for all the vehicles. C said JW's evidence was not accurate and that JW had paid for all road coverage on all three vehicles (ts 292, 13 August 2019) and paid for petrol for her and her daughters and had done so for a long time (ts 280, 13 August 2019).
C acknowledges that JW has been generous to her and her daughters but denies any inappropriate conduct and says that any financial benefit she has gained has been at the direction of JW.
C says that JW also paid other expenses of her and her daughters including rent for one daughter, for domestic airfares and an overseas trip for JW, C, two of C’s adult daughters and one of the daughter’s partners of about three weeks in July 2017 which JW had paid entirely. C says that significant funds had been withdrawn in cash to fund the trip. Withdrawals had been made in $5,000 batches (ts 283, 13 August 2019). C said the money had been withdrawn in cash so that it could be changed into Canadian dollars and English pounds. The investigator estimates that the amount expended by JW on this overseas trip was in the order of $65,000.
C confirms that JW had taken $35,000 in cash out of Australia for spending money and said that she had done this because JW wanted to take that much. C said 'we took that much, but there were four of us travelling' (ts 302, 13 August 2019). L says that overseas relatives reported that $10,500 dollars had gone missing while JW was overseas..
When asked, C acknowledged this and said 'I don't know if it was given or stolen. I don't know.' When asked to clarify what she had meant by 'given' she said 'I didn't mean anything. All right. All I meant is, when the money was stolen, whatever, I presume that mum had maybe misplaced it. So we all looked for it, couldn't find it (ts 298, 13 August 2019). The Tribunal did not find the evidence of C on this point persuasive. L asserts that the cash taken out of Australia breached Australian law.
Despite C bringing a box of documents to the hearing in May 2019 and advising that she was looking in a shed for additional documentation to support expenditure made for JW, by the time of the final hearing in August 2019 the investigator reports that the financial records made available to the investigator were incomplete. Consequently it was difficult to be certain about how much of the expenditure which was said to have occurred for JW could be verified.
In respect of transactions on JW's accounts, the investigator reports that in the statements available there is a pattern of online payments and large cash withdrawals from JW's bank account, including a withdrawal of $1,000 on 25 January 2019 and $2,000 on 18 April 2019 during the period JW was in hospital.
In the absence of more complete financial records being made available to the investigator and the Tribunal, the statements on a credit card in JW's name for the period 23 January 2019 to 22 February 2019 may be an example of expenditure made on JW's accounts.
These statements show numerous transactions with new purchases totalling $6,700. There are a range of expenditures, for example on 25 January 2019, there were seven transactions totalling over $500 in several payments to Woolworths (among other transactions). On the 26 January 2019 there was a further $244 in two transactions to Woolworths and a further $130.95 to Uber Eats. On 28 January 2019 there was a payment to a liquor store ($46) among other transactions. On 30 January 2019 there are payments which appear to be car expenses ($179 and $152). On 31 January 2019, $152.90 is paid to a liquor store and on 1 February 2019 a further $63.33 is paid to a liquor store. On 3 February and 4 February 2019 there are further payments to Uber Eats ($23.22 and $71.95). There are further payments to Uber Eats on 15 February and 16 February 2019 ($56.95, $58.95 and $43.95). There are further payments to Woolworths on 16 February 2019 ($343.83) and on 20 February 2019 $175.43 to a liquor store among other numerous transactions.
Few, if any, of these transactions could be identified as being for the benefit of JW as she was in hospital during this period and the Tribunal concludes that the transactions were likely for the benefit of C.
The Tribunal finds that the withdrawal of cash from JW's account by C at the bank is more likely than not despite what is understood to be her denial of this. The possibility that JW herself withdrew the $1,000 on 25 January 2019 (or directed C to do so), or conducted the other transactions on her credit card or other accounts, is in the view of the Tribunal remote, having regard to JW's reported medical condition at that time.
JW was at that time in hospital having been admitted to hospital on 17 January 2019 with malnutrition and was during this period acutely unwell. According to the medical history dated 11 March 2019 by Dr NL, early in the admission JW was described as 'hardly mobile' and 'unable to walk'. She required assistance with meals and fluids. She was suffering dizziness and some visual hallucinations. In February 2019 it is reported JW was fed by nasogastric tube but pulling out the tubes. In March 2019 she could walk only a few metres with a zimmer frame. The Tribunal does not therefore accept the evidence of C that she only operated under the EPA at the specific or express direction of JW since JW is highly unlikely to have been able to give the express directions for the expenditures made over this period.
The investigator reports that the other children of JW challenge the schedule of JW's personal expenditure provided through C's solicitors. For example, groceries and eating out is estimated at $460 per week, dry‑cleaning estimated of $50 per week and cleaning products estimated $50 per week. Hairdressing for JW is reported to be $150 per week. The investigator reports that when this was examined by her, the hairdresser said that expenditure on JW was about half the estimate given by C and in fact the more expensive services had been for C but paid for by JW. There are few supporting documents provided to support expenditure by C on behalf of JW set out in the schedule. Some of the expenditure items included are estimates only of proposed future expenditure.
The investigator submits that the estimates of expenditure for JW are inflated and notes that JW was admitted to hospital with malnutrition and therefore the expenditure on food and groceries reported by C for JW likely reflects expenditure for the whole household rather than for JW.
The investigator also indicates that there had been a payment in March 2018 as an online withdrawal for land tax of $1,392 for a person identified as W, believed to be C's former husband. C could not give an explanation for this payment.
If C's evidence of JW's direction of expenditure is accepted, then it appears that C did not put any protective measures in place as attorney, even during the period of JW's hospitalisation when she was on notice and she herself appeared to accept that JW's capacity was impaired.
In the first hearing noting that JW's physical health had improved C said she was 'praying' that JW would 'come back' mentally (ts 74, 9 May 2019). Implicit in this statement is an acceptance that JW was not of full capacity.
In the August 2019 hearing, C said that she could not see herself as ever acting as an attorney because she did not know if JW's had capacity or not (ts 292, 13 August 2019: 292). In her later written submission dated 27 August 2019, C says she truly believes that JW is capable of making her own decisions and is capable of knowing when to engage professionals to assist her when required. This is despite C hearing JW's evidence denying she had an accountant which C said had been engaged since 2016 and with whom JW met regularly.
At the hearing, C said she would not oppose the appointment of the Public Trustee in light of her lack of clarity about JW's capacity and the conflict within the family (ts 283, 13 August 2019). In her later written submission C contends that the Tribunal cannot appoint a guardian or an administrator for JW because JW can make reasonable judgments about her person and her estate.
C's assertion that JW manages her own financial affairs is not accepted. This assertion is not supported by any of the professional medical evidence. Dr B reports that JW is reliant on C for support for complex matters. The material before the Tribunal and C's own evidence makes clear that JW was, until the appointment of Public Trustee in May 2019, reliant on C for all online banking, for transfers between JW's bank accounts and since JW had not driven for some time to take her to the bank to withdraw cash.
It can be inferred from C's evidence that JW also had C's assistance to deal with lawyers and accountants on her behalf. C's correspondence to the Tribunal in the course of this proceeding supports this. C says that the 2016 EPA has been produced to the bank, the trust lawyers and the accountant and it seems clear from the correspondence provided by C, that the former accountant, NM, terminated his services because of C's intervention.
The Tribunal accepts the evidence of L that JW was also dependent on her late spouse prior to his death as he managed all of their affairs and provided JW with an allowance.
The EPA executed as it was to be in force on execution was an unrestricted authority subject only to the obligations that C act with reasonable diligence to protect the interests of JW and that she keep records of all transactions (s 107 of the GA Act).
What is known about the conduct of JW's affairs supports the finding that C has been managing JW's financial affairs and that she and her daughters have gained financial benefit from JW's estate since the death of JW's spouse. JW's estate has reported to have been significantly diminished. C herself does not dispute that she has received significant financial benefits from JW.
L argues that the appointment of C as attorney and enduring guardian and the significant changes to the management of JW's affairs occurred when JW was elderly, unwell, recently widowed and was dependent, both physically (as she lived with C) and emotionally reliant on C because of the death of her husband and as JW was isolated from other family members.
L says the changes made from 2016 displaced financial and legal arrangements for JW that had been in place for decades. L says that C has taken advantage of JW and that C has benefitted from these changes to the detriment of JW. She alleges that JW has been subject to elder abuse.
The threshold question for the Tribunal in determining the applications before it, is whether JW has capacity to make her own judgments about her person and about her estate. Although it might be argued that the circumstances of JW as outlined by L suggest undue influence that is not the jurisdiction of the Tribunal. The relevance of C's conduct of JW's affairs is now having found JW lacks capacity, whether the 2016 EPA (and the EPG) represent less restrictive alternatives for the management of JW's financial and personal affairs.
Based on all the material before it the Tribunal finds that the 2016 EPA made in favour of C has not operated in the best interests of JW and is not a less restrictive alternative to the making of an administration order.
There are no other proposals before the Tribunal for the appointment of an administrator of JW's estate and the need for an independent professional administrator is reinforced by the ongoing conflict between JW's children and the complexity of JW's estate with allegations by L that further funds are unaccounted for. In light of this the Tribunal will appoint the Public Trustee as the plenary administrator of JW's estate.
The 2016 EPA made by JW which appoints C as her attorney is inconsistent with the appointment of the Public Trustee as plenary administrator of JW's estate. For the reasons given above and because of this inconsistency the 2016 EPA is revoked.(s 108 of the GA Act)
JW has been generous with her family members in the past and is reported by C to make donations to her church when she attends so the administrator is authorised to expend up to $2,000 per annum on gifts on behalf of JW. If the administrator considers this order needs to be varied, it is open to the Public Trustee to seek review.
Directions will be made to the administrator to examine transactions made in respect of the estate since the execution of the 2016 EPA if the Public Trustee considers that this is in the best interests of JW.
Guardianship Review -Is the EPG a less restrictive means by which JW's needs can be met
The EPG executed in 2016 by JW appoints C her sole enduring guardian with no restrictions.
An EPG only has effect at times when the appointor is unable to make reasonable judgments in respect of matters relating to her person (s 110F of the GA Act). C maintains her view that JW is capable.
During the first hearing the investigator submitted that an enduring guardian is bound by the same obligations as a guardian, pursuant to s 110H of the GA Act, to act in the best interests of the represented person as set out in s 51(2) of the GA Act.
It was submitted that any decision about the need for residential care should be made for JW by a guardian based on the health professionals' assessments of JW's care needs. That submission was accepted by the Tribunal.
At the first hearing the Tribunal appointed the Public Advocate as guardian of JW and suspended the operation of the EPG because it found JW unable to make reasonable judgments about her person in making decisions about medical treatment, her accommodation and services and in the judgment of the Tribunal there was a need for the appointment of an guardian because the EPG had not operated effectively.
The Tribunal found that C had not given proper consideration to the advice of the treating team at the hospital regarding discharge planning for JW, having already determined the question based on her reported promise to her late father. C had made the decision for JW based on considerations which were not relevant to JW's needs.
The guardian reports that JW was discharged to a residential aged care facility following consideration of the OT and other assessments and recommendations about JW's care needs. JW was described as settling in well although she continues to express the wish to leave the facility and live with C or in her own home. JW repeated these comments in the hearing.
The guardian reports that JW has been socialising with other residents at the facility and is enjoying contact with all of her children and grandchildren while at the facility but because of the continuing conflict between C and L and A it had been necessary to instigate a visiting schedule.
The guardian says that JW should have an opportunity to participate in activities offered at the facility so that she can develop relationships with other residents because she has previously said to the guardian that she has been very lonely.
The guardian reports that C did not always comply with contact arrangements that had been put in place at the facility and JW and staff at the facility had been drawn into the conflict between the children.
C in her written submission confirms her stated belief that JW is capable of making reasonable judgments about her person. C maintains that JW should return to live with her. C says that JW should not remain in the facility because JW has repeatedly said she never wanted to be in a nursing home.
C says that JW's health has been steadily improving over time following her hospital admission and that she does not have any current medical issues. However, in the report of Dr NL, consultant physician dated 11 March 2019, in addition to malnutrition and electrolyte imbalance, the following medical issues and history of JW is noted to include: pulmonary embolus, bradycardia, urinary tract infection, viral conjunctivitis, episodes of pneumonia, asthma, bronchiectasis, cerebrovascular disease, osteoarthritis and gastro-oesophageal reflux. It is understood that the acute health conditions have resolved and the chronic conditions are ongoing for JW.
L and A say that they are now able to have regular contact with JW and oppose her moving back to live with C. L and A contend that when living with C, JW was heavily reliant on C and she was isolated from them because of C's actions. They say that at times JW was distressed and fearful of C's reactions to their involvement. C denies this and says that L and A were free to visit JW. C says that she did not advise L and A of previous hospital admissions of JW because she was under instructions not to do so by JW. However, when she was in hospital and in residential care JW is reported to be happy to see A and L.
Both L and A maintain that C has over a period of time attempted to damage their relationships with JW. This is denied by C.
When JW was reviewing the Public Trustee’s report in the August hearing, the sale of the vehicle owned by JW which had reportedly been used by one of C's adult daughters as an Uber taxi was discussed. The report states that a vehicle registered in JW's name had been sold by the Public Trustee.
According to the investigator, locating this vehicle had been difficult and C's lawyer had to be involved and C was reported to have said that the vehicle had been hidden to keep it from A to prevent it being damaged. In the hearing JW had said that she had not driven the car for over a year and denied that anyone else was using it.
JW was surprised when told the Public Trustee had sold her vehicle and the money deposited in her account because she believed that A had sold the vehicle. When asked why she believed this, JW said she could not say as it would be 'betraying someone else'. When asked directly whether C had told her this JW said 'I said I wouldn't tell' (ts 157, 13 August 2019). This comment, in the view of the Tribunal, illustrates the conflict in which JW has been placed and supports the contention of A and L that JW is fearful of C's reactions. The Tribunal finds that C has made negative statements to JW about A and likely about L and it is more likely than not that her animosity to her siblings has impacted on JW's relationship with them.
C said in the hearing that she could not reassure her mother about her conflict with her siblings and said that she needed to tell JW the truth (as she saw it ) about them.
The guardian asserts that the children do not share information and cannot communicate effectively regarding JW to provide a less restrictive option for medical decision making through s 110ZD of the GA Act.
In consideration of the need for the appointment of a guardian for JW, the Tribunal finds that although it is the stated wish of JW that C continue in the role of decision‑maker for her, the EPG has not operated in JW's best interests and is not an appropriate less restrictive alternative to the appointment of a guardian for JW for the following reasons:
C does not accept the specialist psychiatric opinion that JW has impaired capacity and is vulnerable. Since C does not accept JW's impairment and dependence it is unlikely that she would act protectively to meet JW's needs as required by a guardian. Examples of this can be seen in C's rejection of the professional advice regarding residential care in preference to her stated promise to her father and in the failure to continue the limited support services in place prior to her hospital admission because JW was said not to enjoy them. It is speculation but had those services been in place, JW may have spent less time on her own and there may have been prompting for JW to eat and to drink. C conceded that JW needed this prompting in the first hearing but now asserts that JW can make her own decisions, presumably this would extend to the need for services about which JW is reported to have limited insight.
C has not acknowledged in the hearing or in her written submission that JW was admitted to hospital with severe malnutrition. C’s explanation when this was put to her at the first hearing was that she was unaware that JW was not eating the lunch prepared for her and was not aware of the seriousness of JW's condition until she saw JW without clothes when assisting her to shower. In her report of 19 July 2019 Dr OL refers to the severe malnutrition and dehydrated state that JW was in on her admission to hospital and this in Dr OL’s opinion warrants concern for the adequacy of care that must have occurred prior to the admission. Because JW remains cognitively impaired and vulnerable, C's stated lack of acknowledgement of JW's impaired decision‑making means, in the judgment of the Tribunal that C would be unwilling to substitute decisions in the best interests of JW should they be against JW's wishes as understood by C.
C states and her neighbours attest to her compatibility with JW. However the reports of the verbal hostility and excessive force directed at JW from C when JW was very unwell and extremely vulnerable caused concern among hospital staff and raises doubt about C's ability to manage her own frustration when dealing with any challenging behaviours of JW.
C now opposes the appointment of an administrator but in the hearing said she would support the appointment of the Public Trustee if the needs of JW for the purchase of personal items was met. It is not possible to conclude from her changing views whether C would be able to act effectively with the Public Trustee as administrator if operating as the enduring guardian of JW. This is a consideration in light of s 44(2)(b) of the GA Act.
Further, the Tribunal finds that C is in a position of conflict to act as a guardian of JW. C's own evidence is that she has benefitted financially over the period of time that JW has lived with her. The evidence shows that JW has been paying significant household expenditure in C's household. JW's own view is that she lives frugally and there has been no real explanation for what has been described as the diminution of her estate by over $500,000 since she lived with C. In this circumstance, C has a conflict regarding the decision as to where JW should live and could not be appointed as a guardian of JW pursuant to s 44(1)(b) of the GA Act. This, the Tribunal considers, is a relevant consideration when determining whether the EPG is a less restrictive alternative to the appointment of a guardian for JW.
A guardian is required to maintain supportive relationships of the represented person (s 51(2)(g) of the GA Act. C is in conflict with her siblings and the Tribunal accepts C has not acted to maintain JW's relationships with her other children.
The level of conflict between the children and the inadequacy of their communication was apparent in the course of the hearings before the Tribunal and was demonstrated in the style and content of a 'post‑it note' interaction between them which was publicly displayed in JW's room at the residential aged care facility.
In the August hearing when the guardian was describing the conflict between her children JW said she was sorry about the conflict between them and she could not remember 'this kind of hostility' in her family of origin (ts 199, 13 August 2019) JW said the conflict was affecting her heart (ts 200, 13 August 2019).
The guardian submits that the ongoing conflict requires the appointment of an independent guardian to make decisions for JW in respect of accommodation, services and medical treatment for JW. The Tribunal accepts this submission.
Both L and A support the appointment of the Public Advocate as guardian for JW.
C does not support the appointment of a guardian or the appointment of the Public Advocate as guardian and says that JW's wishes as expressed in JW's EPG should be honoured.
For the reasons given, the EPG which appoints C as enduring guardian is revoked.
Wishes
As noted, JW made clear in the execution of her EPA and EPG in 2016 her wishes for C's involvement in decision‑making for her. JW has repeated her views that C continue to make decisions for her and that she return to live with C.
At other times JW is reported to have been distressed by C's conduct, in hospital and at other times referred to in the hearings. The Tribunal is nonetheless satisfied that the wishes of JW are that C continue to manage her affairs and make decisions for her. However, although satisfied that these are the wishes of JW, for the reasons given, the Tribunal does not consider that those arrangements are in JW's best interests.
Orders
The Tribunal is satisfied that the limited order as proposed by the delegated guardian of the Public Advocate is sufficient to meet the current needs of JW such that a plenary guardianship order is not required.
The Tribunal is satisfied that a plenary order appointing the Public Trustee is in the best interests of JW because of the range of functions which may be required to be exercised by the administrator.
The impairment of JW and the apparently intractable nature of the conflict between her children supports the making of five year orders.
For the reasons given, the Tribunal orders:
1.The Tribunal declares that the represented person is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
2.The order made on 14 May 2019 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 administrator is authorised to expend up to a total amount of $2,000 per annum on gifts on behalf of the represented person.
5.The enduring power of attorney dated 24 October 2016 by which the represented person appointed C to be her attorney, is revoked.
6.The administrator is directed to ascertain the extent of the estate of the represented person and if the administrator considers necessary and in the best interests of the represented person to:
(a)examine transactions in respect of the estate and other interests of the represented person including but not limited to the WFT since the execution of the enduring power of attorney dated 24 October 2016; and
(b)consider any interest or remaining entitlement to a distribution the represented person may have in or from the WFT.
7.The administration order is to be reviewed by 4 November 2024.
8.The Tribunal declares that the represented person is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
The guardianship order dated 9 May 2019 is confirmed as follows:
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)To determine 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.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.The guardianship order is to be reviewed by 4 November 2024.
4.Pursuant to s 110N of the Guardianship and Administration Act 1990, the enduring power of guardianship dated 24 October 2016 made by the represented person by which C is appointed enduring guardian, is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
22 NOVEMBER 2019