JZ
[2024] WASAT 87
•27 AUGUST 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JZ [2024] WASAT 87
MEMBER: MS R BUNNEY, MEMBER
HEARD: 22 AUGUST 2024
DELIVERED : 22 AUGUST 2024
PUBLISHED : 27 AUGUST 2024
FILE NO/S: GAA 3081 of 2024
JZ
Represented Person
MENTAL HEALTH SERVICE
Applicant
Catchwords:
Guardianship - Administration - Psychiatric illness - Vascular dementia - High vulnerability and dependency - Decades of undeclared rental income - Complex estate - Entrenched family conflict - Financial neglect, abuse or exploitation - Revocation of enduring power of attorney - Appointment of Public Trustee as administrator - Appointment of Public Advocate as guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 70(2)(d)
Result:
Enduring power of attorney revoked
Public Trustee appointed as administrator
Public Advocate appointed as limited guardian
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
JZ is an 86-year-old woman who lives with a psychiatric illness, having been diagnosed with bipolar disorder, schizophrenia and psychosis. The illness has caused JZ to be hospitalised involuntarily for significant periods of time over the last 50 years. JZ also has a diagnosis of vascular dementia which has been progressing over the last five years.
JZ lives rent-free in a home owned by her three daughters, DB, CH and RE. The sisters provide emotional and practical support in addition to the carers engaged through a Level 4 Home Care Package (HCP). JZ's Mental Health Service filed the application with the Tribunal due to the persistent disagreement between JZ's daughters about her ongoing care and the need for clarity in decision-making.
JZ was born in 1938 in an eastern European country that became severely affected by World War II. JZ emigrated to Australia in 1965 and gave birth to her children in 1966, 1967, 1969 and 1975. Her marriage to her children's father was coercive and controlling and her access to money was extremely limited. She never learned English or how to drive. The children's upbringing was traumatic as in addition to living with their mother's chronic psychotic illness and having responsibilities far greater than their years, they were exposed to family violence prior to their parents separating in the late 1980s.
JZ's financial situation is complicated and may involve liabilities to the Australian Taxation Office (ATO), RevenueWA and Centrelink. For the reasons that follow, I have appointed the Office of the Public Trustee (Public Trustee) as JZ's plenary administrator with a direction to investigate various financial matters. I have appointed the Office of the Public Advocate (Public Advocate) as JZ's guardian to make decisions about accommodation and services. The duration of the orders is five years.
As JZ does not speak English, I am publishing these reasons so they can be explained in her first language. JZ was assisted at the Tribunal hearing by an interpreter. I record the Tribunal's gratitude for Madame Interpreter's able assistance.
Relevant background - property ownership and two deceased estates
JZ purchased her home, Property 1, following her separation from the children's father. He passed away in 1989 and left his estate, consisting of two properties, to the youngest daughter RE and their son UU, then aged 14 and 19 years old respectively. No steps were taken at the time to apply for probate and distribute the estate.
Also in 1989, UU and JZ purchased land as joint tenants and obtained a mortgage to build the house that would become Property 2. However, UU tragically passed away in 1992 aged just 22 years old. His death had a profound impact on everyone, especially JZ.
When UU died, JZ became the owner of Property 2 by the right of survivorship and she was solely responsible for paying the mortgage, which she struggled to pay. However, Property 2 has always been rented and the rental income used to pay the mortgage and expenses.
As no steps had been taken to finalise their father's estate, UU's estate consisted of his undivided half share of his father's two properties. UU died without a will, so in accordance with the relevant law, JZ inherited $6,000 and half of UU's estate, with his sisters inheriting an equal share of the other half. Due to:
(a)the ages of the sisters at the time, being 17, 24 and 25;
(b)JZ's inability to initiate the necessary arrangements or seek advice;
(c)the complexity involved, noting that RE was entitled to the other undivided half share of their father's two properties; and
(d)the trauma of UU's sudden and heartbreaking death, just three years after their father passed away,
the estate was understandably not finalised for some time.
Solicitors were involved in 2006 and a deed of arrangement was signed by JZ and her daughters on 1 July 2008 (Deed). However, DB and CH believe that RE has deliberately kept $75,000 that belongs to JZ. They say they have asked multiple times what happened to it and that it be paid to JZ. They say this is JZ's asset that should be used for her care.
RE says she does not owe money to JZ. RE says that her sisters make this accusation every time she questions their management of JZ's finances to shut down the conversation and exclude her. RE says that the conflict between the sisters goes back 30 years.
JZ's assets and financial management
JZ moved out of Property 1 in 2001 and it was empty for around nine years. It was first rented in 2010. DB says that she renovated Property 1 for three years. Between DB and CH, they have claimed $24,000 in expenses in relation to Property 1. Property 1 is valued at $525,000 and has no mortgage. It is currently advertised for rent at $475 per week.
DB and CH oversee the management of Property 1 and advised that it was damaged by former tenants. JZ currently owes $7,000 for the costs of repair. It appears that appropriate landlord insurance may not have been obtained.
Property 2 is rented at $520 per week and has an estimated value of $400,000. JZ now owns two thirds of Property 2, with CH owning the other third. The mortgage has a current balance of $55,000 which is in CH's sole name. CH communicates and liaises with the property manager for Property 2. CH explained her involvement in Property 2 as follows:
102.The circumstances of this co-ownership date back to 11 April 2001, when my late brother's share of the property was transferred to me.
103.At the time, I took on the mortgage for this property as my now deceased brother initially financed … at a premium interest rate.
…
105.The rental income from this property has historically been used to cover the mortgage payments, property taxes and maintenance costs. [Witness Statement dated 21 August 2024]
CH explained that there have always been taxable losses on Property 1 and Property 2 as the expenses have always been higher than the rental income received. CH's view is that because of the net loss, there is no income that JZ would be required to declare. It therefore appears likely that DB and CH have not assisted JZ to file taxation returns declaring the rental income from both properties to the ATO.
When I mentioned that earning income will affect JZ's aged pension, CH advised that JZ's pension had not been affected by the rental income. However, that is because the rental income has also not been declared to Centrelink.
Summary of issues requiring consideration
Various accounting issues arise from JZ having three sources of income. It is not the role of the Tribunal to answer the questions set out below, but I observe that the following matters require consideration:
(a)If the rental income earned from Property 1 and Property 2 has not been declared to the ATO, does JZ have unpaid taxation liabilities and associated penalties?
(b)As the rental income has not been declared to Centrelink, has the 'income test' been incorrectly calculated in relation to the aged pension and the HCP funding received by JZ? Is there a debt owing to Centrelink?
(c)As JZ has not lived at Property 1 since 2001 and it has been rented since 2010, when was Property 1 no longer considered to be JZ's principal place of residence in terms of the assets test for Centrelink?
(d)When was Property 1 no longer considered to be JZ's primary residence for the purposes of calculating land tax?
(e)Has the change in circumstances in relation to JZ's primary or principal place of residence been declared to Centrelink and RevenueWA? If so, when?
(f)Have any rebates or concessions, for example, from the local council, been incorrectly claimed if JZ was not the occupier of Property 1 as her ordinary place of residence?
(g)How does the timing of the declaration in relation to Property 1 affect the 'assets test' in relation to the pension and aged care funding? If so, what are the consequences?
(h)If JZ has a debt owing to Centrelink, the ATO or RevenueWA, how can she pay it?
(i)What fees will JZ pay if she requires respite or residential aged care if she continues to earn rental income from both properties?
(j)If JZ is required to pay a refundable accommodation deposit (RAD) when entering residential aged care, and taking into account her income, should Property 1 or Property 2 be sold, and if both, in what order and when? Should any other action be taken to plan for an entry into aged care?
Three questions the Tribunal must answer
The starting point for the Tribunal, when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments in respect of matters relating to their estate and their person.
If the 'presumption of capacity' has been set aside, the Tribunal can consider making guardianship and administration orders. The primary concern of the Tribunal is JZ's best interests and I must take her views and wishes into account. However, the Tribunal might make a decision in JZ's best interests that may not be exactly what she wants.
When deciding whether or not to appoint a guardian or an administrator for JZ, the Tribunal must answer three questions:
(a)Does JZ lack the capacity to make her own decisions about her personal and financial matters?
(b)If so, is there a need for the Tribunal to make an order to appoint a guardian or an administrator? Or is there a less restrictive way for decisions to be made in JZ's best interests?
(c)If there is a need for an order, who should be the guardian or administrator, what functions or powers should they have, and how long should the orders run before they are reviewed?
The Tribunal will make findings of fact about capacity by reference to the oral and written evidence of medical, allied health and other professionals, and lay people, such as friends and family. I have considered all that evidence and need not set it out in detail. The relevant features are summarised later in these reasons.
JZ's views and wishes
The Tribunal must take JZ's views and wishes into account. JZ told me that she would be happy for any of her children to help her make decisions about her personal and financial matters.
JZ told the Investigator from the Public Advocate (Investigator) that RE was her attorney, seemingly forgetting that she signed an enduring power of attorney on 8 July 2019 appointing DB and CH as her joint enduring attorneys and RE as the substitute attorney (EPA). She signed an enduring power of guardianship on the same day appointing DB and CH as her joint guardians and RE as the substitute guardian (EPG). JZ's wish in 2019, as recorded in these documents, was that DB and CH would jointly manage her finances and personal matters.
However, in all the circumstances of this matter, I am satisfied that it is not in JZ's best interests to follow those views and wishes for three reasons. The first is the conflict between JZ's three daughters involving a strong alliance between DB and CH, and the exclusion of RE. The second is the level of complexity in JZ's estate and the failure of DB and CH to recognise the existence and significance of the issues requiring consideration identified above. The third is that there is a conflict of interest between CH and JZ in relation to her acts or omissions, the rental income, and perhaps the ownership, of Property 2.
I am therefore unable to give effect to JZ's views and wishes. I acknowledge DB and CH's disappointment with this outcome, however the GA Act:
… is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection. [Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] per EM Heenan J]
Question 1 - does JZ lack the capacity to make her own decisions about her personal and financial matters?
(1)(a) When can an administrator be appointed? The test for incapacity
To appoint an administrator for JZ, I must be satisfied that she is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate.
No one that attended the hearing believed that JZ was able to make decisions about her finances.
(1)(b) Does JZ have a mental disability?
The medical evidence before the Tribunal sets out that in addition to the diagnosis of vascular dementia, JZ has been diagnosed with bipolar disorder, depression, paranoia, schizophrenia and cycloid psychosis.
I find that the diagnoses of the psychiatric illnesses and vascular dementia come within the definition of 'mental disability'.
(1)(c) Does the mental disability cause JZ to be unable to make reasonable judgments about her estate?
A person's 'estate' includes their real and personal property, all assets and liabilities, and all of their financial affairs. JZ's estate is complex and consists of:
(a)her assets, which are Property 1, two thirds of Property 2, her bank account which holds around $6,000, and $75,000 that DB and CH say RE is holding; and
(b)a liability of $7,000 owing in relation to the damage to Property 1, and potential liabilities to the ATO, RevenueWA and Centrelink based on undeclared income that could date back as far as 1992 and the lack of timely declarations.
For the Tribunal to decide whether JZ is 'unable' to make reasonable judgments about her estate, I must consider the extent to which JZ is able to engage in the cognitive process required to make a 'reasonable judgment' and then compare that against JZ's estate and circumstances.
JZ was assessed by psychogeriatrician Dr S who prepared a report for the Tribunal. Dr S states that JZ is not able to make decisions about financial matters as she has difficulty comprehending financial tasks and synthesising the relevant aspects of financial management. I accept the evidence of Dr S.
I note that perhaps the reason JZ did not declare her rental income or file a taxation return could be because of her inability to read English to obtain relevant information. However, I am satisfied and I find, that JZ is currently unable to think through the issues required to manage her finances due to the longstanding diagnosis of the psychiatric illness and the more recent diagnosis of vascular dementia. The dementia specifically affects her memory, her ability to comprehend information and the ability to problem solve.
I observe that the problems that have been caused by not making appropriate declarations in respect of the use of Property 1 and in respect of income earned to the ATO, Centrelink and RevenueWA would have been avoided if JZ was able to make reasonable judgments about her finances and recognise the need to seek advice. It is unclear how long JZ has been unable to make reasonable judgments about her financial matters.
I am satisfied, and I find, that the diagnosis of vascular dementia identified by Dr S, in addition to the psychiatric illness that she has lived with for 50 years, are the cause of JZ's inability to make reasonable judgments in respect of her estate.
(1)(d) Conclusion on capacity to make financial decisions
Having regard to the documentary and oral evidence provided to the Tribunal, I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of JZ 's ability to make reasonable judgments in respect of her estate.
JZ is therefore a person for whom I can appoint an administrator.
(1)(e) When can a guardian be appointed? The test for incapacity
To appoint a guardian for JZ, I must be satisfied that she is over 18 years of age and that one or more of the following criteria apply:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
(1)(f) Does JZ lack the capacity to make personal decisions?
I am satisfied, and I find, that JZ is currently incapable of looking after her own health and safety. JZ requires the assistance of a carer to shower her five times per week. She also requires medication prompts twice per day to make sure she is taking her prescribed medications correctly.
I am satisfied, and I find, that JZ is currently incapable of making reasonable judgments in respect of her person. JZ mistakenly stated that she did not have any support services in place and when her family offers assistance, she declines. JZ lacks insight into the difficulties that she is now having, and I am satisfied that she would not be able to source the level of services she requires to continue living in the community.
I am satisfied, and I find, that JZ is in need of supervision and oversight in order to protect her health and safety. JZ requires assistance with dressing to prevent falls, and she wears a falls pendant. She also requires assistance with reheating meals to ensure that she maintains a high level of nutrition.
(1)(g) Conclusion on capacity to make personal decisions
I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of JZ 's ability to make reasonable judgments in respect of her personal matters.
JZ is therefore a person for whom I can appoint a guardian.
Question 2 - is there a need for orders or a less restrictive option?
Having regard to that evidence, there is no doubt that JZ requires assistance to deal with her estate and to make decisions about her personal matters. The question I need to answer at this stage is not whether she needs assistance, but whether she needs an administrator or a guardian to be appointed for that purpose.
I must bear in mind the need to adopt a less restrictive options if possible.
(2)(a) Are informal arrangements sufficient?
I find that informal arrangements are not appropriate in this case as JZ requires someone to have the legal authority to, among other things, instruct the relevant professionals to liaise and negotiate with Centrelink, RevenueWA and the ATO in relation to her financial affairs. She also requires someone with the legal authority to make decisions and sign documents in relation to her accommodation and services.
It is therefore necessary to examine whether the EPA and EPG are an appropriate way for decisions to be made in JZ's best interests.
(2)(b) Are the EPA and EPG an appropriate option?
RE refused to sign the acceptance of both the EPA and EPG in 2019 as her view was that JZ did not understand the nature of the documents she was signing. RE informed her sisters in 2019 that the EPA and EPG should be prepared by a lawyer, with a doctor to undertake a capacity assessment to ensure that JZ understood the documents. RE also told her sisters that an accredited interpreter should be involved in the process.
Rather than accept this suggestion from RE, who in 2019 had been admitted as a legal practitioner for 15 years, CH prepared the EPA and EPG herself.
While the EPG has an obvious technical error, the EPA appears to be completed correctly, although DB and CH did not sign the acceptance. DB and CH gave evidence that they did not use the EPA due to the issues raised by RE. They did not seek independent legal advice.
I am satisfied, and I find, that the EPA and EPG will not operate as less restrictive alternatives for the same three reasons that I was unable to follow JZ's views and wishes: the family conflict, the level of expertise required to manage her estate and the conflict of interest. There is a need for the Tribunal to appoint an administrator.
In terms of JZ's personal decisions, there are different views between DM and CH on the one hand, and RE on the other, in relation to accommodation and services. These issues will be discussed in detail later in these reasons, so it suffices to say that I am satisfied on the evidence before me that there is no less restrictive means available for personal decisions to be made in JZ's best interests other than by the appointment of a guardian.
DB and CH gave evidence that they used the EPG to admit JZ to hospital, so I will make an order to direct that they not act using the EPG as there is no application before the Tribunal to revoke the EPG.
Question 3 - who, what and how long?
(3)(a) Who should be JZ's administrator?
When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of JZ, is suitable to act as the administrator of her estate and will be able to perform the functions vested in them.
CH has nominated herself for appointment. I find that CH is over the age of 18 years and has consented to act as the administrator. However, I am not satisfied that CH is suitable to be appointed due to the family conflict, the complexity and her inability to perform the functions vested in an administrator and the conflict of interest between her and her mother.
Unsuitability - family conflict
The family conflict appears be due to DB and CH's opinion that RE owes JZ $75,000. DB and CH's view is based on their interpretation of the Deed, which took solicitors two years to negotiate and resolves the complex interaction between the estates of UU and their father, and the entitlement of each beneficiary.
The overall effect of the conflict, which RE says has existed for over 30 years, is that RE has been excluded from information and discussions about JZ's finances. This has caused harm to JZ and her financial position, as JZ has not been able to benefit from RE's oversight. In submissions filed with the Tribunal, RE raised her longstanding concerns about the use of JZ's income and the management of Property 1 and Property 2.
I observe, in relation to DB and CH's analysis of the Deed, RE has been practising as a solicitor for 20 years. She had been admitted for four years when the Deed was signed in 2008. Based on RE's education and professional experience, it is more probable than not that RE's interpretation of the Deed is more correct that DB and CH's.
Unsuitability - inability to perform the functions of administrator
CH has been informally managing JZ's finances, with assistance from DB and leaving out RE, for at least 20 years. I have therefore been able to examine multiple examples of CH's decisions and conduct to determine how successful that arrangement has been.
CH gave evidence that it has not been necessary for JZ to declare rental income because there was always a net loss on Property 1 and Property 2. I attempted to explain that while there may be an overall loss, rental income earned must be declared before the loss can be claimed. The loss cannot exist without the income. However, CH was resolute in her position, with DB concurring.
DB was fully supportive of CH's appointment as administrator and endorsed CH's financial expertise and abilities. CH is a bookkeeper. DB, a schoolteacher, was confident that CH would continue to efficiently manage their mother's financial affairs.
CH commented that JZ's pension had not been affected by the receipt of rental income, which demonstrates CH's deficit in knowledge of how to manage an aged pension and the need to declare income to Centrelink. In their witness statements, both DB and CH make comments about CH exploring 'options to maximise JZ's pension entitlements', the meaning of which is uncertain. I am concerned that other important declarations required by Centrelink and RevenueWA, such as Property 1 no longer being JZ's principal place of residence, may not have been made by DB and CH in a timely manner, or at all.
Unsuitability - conflict of interest between CH and JZ
The obvious conflict is the acts or omissions of CH when informally managing JZ's finances since at least 2001. As mentioned, income was not declared to the ATO or Centrelink and declarations may not have been made promptly to Centrelink and RevenueWA. However, there are other conflicts of interest between CH and JZ that further disqualify CH from being appointed as administrator based on unsuitability.
CH benefitting from JZ's interest in Property 2
CH disclosed during the hearing that her tax accountant claims 50% of the taxable loss of Property 2 in CH's annual taxation return. CH did not appreciate that JZ's legal ownership of 66.7% of Property 2 entitled her to 66.7% of the income.
Following from her entitlement to the income, JZ is legally liable to pay 66.7% of the usual expenses of Property 2, such as council rates, water rates, repairs, maintenance and the fees of the property manager. She is also liable to pay her land tax as assessed. JZ would then deduct her share of these expenses from her share of the income, which will produce either a net loss or a net gain.
The same calculation would also be performed for Property 1. The gains/losses will then be added to/subtracted from JZ's pension income which will generate JZ's taxable income for the year. Following assessment by the ATO, the usual outcome would be that either JZ would pay money to the ATO or she would receive money by way of a refund.
As the mortgage for Property 2 is in CH's name, she is legally obliged to pay it. To calculate her net loss or net gain for Property 2, CH can deduct:
(a)the expenses relating to the mortgage;
(b)the land tax she is assessed to pay in relation to Property 2; and
(c)33.3% of the usual expenses of Property 2,
from her entitlement to 33.3% of the income. This is clearly a very different calculation to CH simply claiming 50% of the overall loss and ignoring the legal ownership of the property and liability for deductible expenses.
DB and CH co-own four investments properties. They also engage in paid employment. Every year, DB and CH would go through the process of working out the total of their income from employment and their share of the income and expenses for each of the four investment properties. They would engage accountants to perform similar calculations to those set out above to calculate their taxable income. It is inexplicable that, in the context of their informal joint management of JZ's finances, they did not once in all that time turn their minds to doing the same thing for their vulnerable, dependent mother who has relied on them for most of their lives.
This is even more difficult to understand following the signing of the EPA in 2019 and their belief that their mother had formally appointed them, or wanted to formally appoint them, as her enduring attorneys.
The reconciliation of JZ's taxation affairs for Property 2 from April 2001 will require the retrospective amendment of CH's taxation returns for the periods within which she claimed 50% of the taxable loss. It is against CH's interests to resolve these matters for her mother, as there will be financial and legal consequences for CH.
Circumstances surrounding CH acquiring one third of Property 2
When explaining her ownership of one third of Property 2, CH describes receiving a 'transfer' of her 'brother's share'. Ignoring the mischaracterisation of her brother's interest in Property 2, it appears that no consideration was paid by CH for the one third share. CH says that she 'took on the mortgage', which implies that the consideration for the transfer may have been the obligation to refinance and pay the mortgage, rather than one third being given to CH as a gift.
However, on CH's own evidence, the rental payments, 66.7% of which belong to JZ, were used to pay the mortgage. Further consideration may be required in relation to the matters set out below, which may form a further conflict of interest:
(a)the agreement that was reached in 2001 between JZ and CH in relation to the transfer of one third to CH in terms of the offer, acceptance and consideration;
(b)whether the obligations have been performed by the parties pursuant to the agreement; and
(c)what JZ understood about the transfer, the terms of the agreement and her rights in respect of same.
Conclusion in relation to who to appoint as administrator
While the numerous errors and deficits in CH's understanding of financial matters is astonishing, of greater concern is CH's lack of insight and unwavering belief that she is suitable to be appointed as JZ's administrator. I am not satisfied that if CH was appointed, she would be able to act in her mother's best interests to protect her from financial neglect, abuse or exploitation [GA Act, s70(2)(d)].
In the context of CH holding herself out as a person with financial skills, I find CH's past conduct when informally managing her mother's finances to be careless and incompetent. Accordingly, I find that CH is unsuitable for appointment as she is unable to perform the functions proposed to be vested in the administrator.
The only option open to the Tribunal is to appoint the Public Trustee as JZ's administrator.
(3)(b) What should the administrator's powers be?
I am satisfied that it is appropriate that the administration order be a plenary order, which will allow the administrator to deal with all aspects of JZ's estate in her best interests. I am satisfied on the evidence provided by Dr S that JZ is unable to make decisions about simple or complex financial matters, process or remember information, or advocate for herself.
I will include a gifting authority, upon the recommendation of the Investigator, of $1,000 per year so the administrator can purchase gifts on JZ's behalf.
I will also direct the Public Trustee to consider the following matters:
(a)JZ's entitlement pursuant to the Deed to resolve the allegation that RE must pay $75,000 to JZ;
(b)the management of the income received from Property 1 and Property 2 for the numerous reasons cited herein; and
(c)the status of JZ's taxation liabilities, which of course involves ascertaining the rental income earned by JZ since 1992 and filing outstanding taxation returns.
There are significant gaps in the information before the Tribunal, so it is not known what else has occurred during the time DB and CH have been informally managing JZ's finances. Whether the conduct was deliberate or ignorant, I hold grave concerns in relation to JZ's estate and her future.
(3)(c) Who should be JZ's guardian?
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of JZ, is suitable to act as the guardian, is not in a position where their interests' conflict or may conflict with JZ's interests and that the proposed guardian will be able to perform functions vested in them.
The Tribunal is only able to appoint the Public Advocate as guardian is there is no one willing or suitable to act. As CH has proposed herself as JZ's guardian, it is necessary that I make findings in respect of her suitability for appointment as JZ's guardian.
I find that CH is over the age of 18 years and has consented to act as the guardian. However, I find that CH is unsuitable to be appointed as JZ's guardian due to the conflict that currently exists between the sisters and the likelihood that the appointment of CH would mean that RE would be further excluded from being involved in important decisions being made about her mother. As mentioned in relation to financial matters, I find that excluding RE is against JZ's interests as she is not able to benefit from RE's careful and protective oversight.
I am satisfied, and I find, that the only option open to the Tribunal is to appoint the Public Advocate as JZ's guardian.
(3)(d) What functions should the guardian have?
Services
The difference of opinion between RE, and DB and CH in relation to services is the reason the application was filed. RE's stated concern that DB and CH have mismanaged and exhausted JZ's HCP funding may pale in comparison to the further issue of whether there has been an overpayment in relation to the HCP funding due to an incorrect income and assets test. This means that before any review can occur about JZ's services, her guardian will need clear information about her entitlements.
The guardian will need to work with the Public Trustee to ensure that correct information is provided to Centrelink to ascertain the level of services to which JZ is entitled. The guardian will also hear the concerns of all family members in relation to the provision of services to JZ, and to make decisions and engage the specific service providers as appropriate.
Accommodation
Decisions about accommodation and services go hand-in-hand, as where someone lives dictates the level of services they require. If JZ is no longer entitled to receive the same level of services, her accommodation may have to change sooner rather than later if she is unable to afford to pay for further aged care services to be provided in her home.
In any event, JZ has a progressive illness and is a falls risk, so the level of supervision and care that she needs could change at any time. When it does, a decision will need to be made about where she will live and with whom she will live.
CH would like to construct a granny flat at her home so JZ would live with her if she was no longer able to live safely in her current home. DB is supportive of this position. RE is also planning to build a granny flat at her home in the hope that JZ would live with her.
It is necessary for JZ's guardian to start making the appropriate enquires and planning for a change in accommodation, including assessing the competing hypothetical granny-flats and consulting with the Public Trustee about what JZ can afford to pay by way of a RAD and ongoing aged care fees.
Conclusion
I am therefore satisfied that there is a need for a guardian appointed by the Tribunal to make decisions for JZ about her accommodation and services. I am satisfied on the basis of the discussions at the hearing that although the conflict between the sisters may never be resolved, they are able to put their mother first in terms of sharing information and making decisions about medical treatment and procedures, so it is not necessary that this function be vested in the guardian.
(3)(e) How long should the orders run before review?
When making orders, the Tribunal is required to fix a period for review. The medical evidence is clear that JZ has a diagnosis of a progressive illness such that her need for a guardian and administrator will be lifelong.
Given the entrenched conflict between the sisters and the likelihood it will endure, and the highly complex nature of JZ's estate that could take years to resolve, I will make the orders reviewable within the maximum term possible, which is five years, to ensure that JZ and her daughters do not have to attend a stressful and emotional review hearing any earlier than necessary.
Orders
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person JZ is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
Administration
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.
4.The enduring power of attorney dated 8 July 2019 by which the represented person appointed [DB] and [CH] to be her joint attorneys, is revoked.
5. The Public Trustee is directed to consider:
(a)the represented person's entitlement pursuant to a deed of arrangement dated 1 July 2008;
(b)the management of the income received from the rental properties of the represented person; and
(c)the status of the represented person's taxation liabilities.
6.The Tribunal is to provide the Public Trustee with copies of all documents filed in these proceedings.
7.The administration order is to be reviewed by 22 August 2029.
Guardianship
8.The enduring guardians purported to be appointed pursuant to an enduring power of guardianship dated 8 July 2019 are directed by the Tribunal not to act pursuant to the power.
9.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live; and
(c)to determine the services to which the represented person should have access.
10.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
11.The guardianship order is to be reviewed by 22 August 2029.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
27 AUGUST 2024
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