KB
[2013] WASAT 108
•28 JUNE 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: KB [2013] WASAT 108
MEMBER: MS F CHILD (MEMBER)
HEARD: 8 JANUARY AND 8 MARCH 2013
DELIVERED : 28 JUNE 2013
FILE NO/S: GAA 3704 of 2012
GAA 717 of 2013
GAA 802 of 2103
MATTER: KB
Represented Person
Catchwords:
Guardianship and administration - Applications for appointment of guardian and administrator and for intervention in enduring power of attorney - Represented person with diagnosis of cerebral palsy and mild intellectual disability - Allegations of neglect and domestic violence - Refusal of services by spouse and primary carer Need for guardian - Allegations of misuse of funds of represented person - Need for administrator - Wishes of represented person that her mother and her sister be appointed her administrators and guardians - Best interests of represented person - Long period of estrangement between represented person and her family - Need for independent administrator to trace funds - Appointment of Public Trustee as administrator - Joint appointment of mother and sister with Public Advocate as guardians
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 41(3)(a), s 43(1)(b), s 43(1)(c), s 45(3), s 64, s 97(1)(a), s 97(1)(b)(iii), s 97(1)(c), s 108(1), s 109, s 109(1), Div 3 Pt 5
State Administrative Tribunal Act 2004 (WA), s 35(1)
Result:
Guardians and administrators appointed
Summary of Tribunal's decision:
The Tribunal appointed guardians and an administrator of the estate of a woman with cerebral palsy and mild intellectual disability. The Public Advocate was appointed together with the mother and sister of the woman as joint limited guardians to make personal decisions on the woman's behalf. The Public Trustee was appointed as the limited administrator of her estate. The appointments followed applications by a representative of the Disability Services Commission seeking the appointment of a guardian for both the woman and her spouse of 19 years. The spouse, who has an acquired brain injury, was alleged to have neglected the woman's care needs, cancelled personal care services on which she relied, and to have been intimidating and aggressive to carers. It was also alleged that there had been incidents of domestic violence before and during the course of the marriage, including verbal and physical aggression and cutting the woman off from her family. In the course of the proceedings before the Tribunal, the Public Advocate made applications for intervention in an enduring power of attorney executed by the woman by which she had appointed her spouse as attorney and for the appointment of an administrator of her estate. The Public Advocate's investigation of the guardianship applications had revealed that some funds of the woman paid to her in settlement of a personal injuries claim following a motor vehicle accident were unaccounted for, some apparently having been lost in the failure of an investment scheme into which her funds had been placed. Although initially opposing the orders with her spouse at the first hearing, following an adjournment and with independent legal advice arranged by the Public Advocate, the woman said that she supported the appointment of her mother and her sister as guardians and administrators of her estate, and that she intended to separate from her spouse following the hearing.
The Tribunal found that the woman was vulnerable and dependent on others for all her personal care needs due to her significant physical disabilities and intellectual disability. The Tribunal accepted the submissions of parties that because of actions of her spouse, this care was at times cancelled or suspended and this placed the woman at risk. Although most of the allegations made of neglect and domestic violence were denied by the spouse, the evidence of other parties was preferred to that of the spouse. The Tribunal found that the spouse had attempted to restrict access of the woman to her family, probably for many years. His conduct in the hearings before the Tribunal supported allegations that he attempted to intimidate and control others. The Tribunal accepted the woman's own assessment stated in the hearing that her situation was 'not safe'. The Tribunal determined that she needed a guardian to make personal decisions on her behalf.
The Tribunal found that the woman's mild intellectual disability, which she did not accept, was a mental disability for the purposes of the Guardian and Administration Act 1990 (WA) and that there was a need for an administrator of her estate to establish the extent of her estate, to investigate whether funds were owed to her by others and, if necessary, to take action to trace and secure any funds owing to her. Even if the woman had not consented to the appointment of an administrator of her estate, the evidence about her spouse's mental disability as a consequence of his brain injury which was before the Tribunal meant that it was not appropriate that the woman's funds be managed by him as her attorney acting under an enduring power of attorney. The Tribunal revoked the enduring power of attorney as inconsistent with the appointment of an administrator of the woman's estate.
Although the mother and the sister of the woman proposed themselves for appointment, and this was the clearly expressed wish of the woman, the Tribunal decided to appoint them jointly with the Public Advocate as guardians and to appoint the Public Trustee as plenary administrator of her estate. The Tribunal found that both the mother and the sister were committed to the interests of the represented person and were suitable for appointment as guardians, but the length of their enforced estrangement from the woman, the recent reunion between them, and the history of separations and reconciliations between the woman and her spouse and the apparent antagonism between the spouse and the family of origin of the woman, meant that a joint appointment with the Public Advocate was in her best interests. The Tribunal considered that if there was reconciliation, this would have to be managed, and there was conflict between the spouse and the woman's family.
The complexity of the woman's financial affairs, including a potential tracing exercise to establish the extent and location of funds, called for an experienced administrator, and the possibility of reconciliation with the husband also supported the need for independence in the appointment of an administrator of the woman's estate.
Category: B
Representation:
Counsel:
Represented Person : Mr M Cuomo
Solicitors:
Represented Person : Legal Aid Commission of Western Australia
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Applications were brought by the Director of Local Area Coordination with the Disability Services Commission (DSC) for the appointment of a guardian for both the represented person and her spouse. The applications were filed with the Tribunal in October 2012. The applicant initially sought an urgent hearing of the applications because it was said that the personal care services on which the represented person relied had been cancelled by her spouse and she was at immediate risk. The applicant agreed to an adjournment to allow for an investigation by the Public Advocate because a new service had been engaged to provide personal care services to the represented person.
The applications for the appointment of guardians for the represented person and her spouse were first heard on 8 January 2013 and a further adjournment was ordered to allow for the applicant to file further reports, assessments or other material relevant to whether the represented person was a person for whom a guardian may be appointed.
The Public Advocate was directed to take all steps necessary to arrange legal representation before the Tribunal for the represented person independent of her spouse. In the adjournment, further applications were filed with the Tribunal by the Public Advocate for intervention in an enduring power of attorney (EPA) executed by the represented person, by which she had appointed her spouse as attorney and later for appointment of an administrator of her estate.
The applications made in respect of the represented person and her spouse were listed for final hearing separately and were heard at different times on 8 March 2013.
Notice of the application by the Public Advocate for the appointment of an administrator of the estate of the represented person was shortened in the circumstances and that application was heard together with the applications for intervention in an EPA and the appointment of a guardian filed in October 2012.
The Tribunal heard from the applicant, the represented person, the spouse, the mother and the sister of the represented person, and from the Public Advocate's representative (Public Advocate). A significant amount of written material was put before the Tribunal, including documents that were ordered to be produced, submissions from the applicant, the Public Advocate, the mother of the represented person, and reports from a number of service providers.
Legislation
Pursuant to s 43(1)(b) of the Guardianship and Administration Act 1990 (WA) (GA Act), a guardian may be appointed for a person if the Tribunal is satisfied that the person is unable to look after her own health and safety, is unable to make reasonable judgments about her person, or is in need of oversight and care in the interests of her own health and safety and, pursuant to s 43(1)(c) of the GA Act, is in need of a guardian.
Section 64 of the GA Act provides that an administrator may be appointed where the Tribunal is satisfied that the represented person is unable, by reason of a mental disability, to make reasonable judgments about any or all of her estate and is in need of an administrator.
Section 109 of the GA Act provides that a person with a proper interest may make applications for intervention in an EPA executed by a donor.
These provisions are subject to principles set out in s 4 of the GA Act, which provide that the primary concern of the Tribunal must be the best interests of the represented person or the person in respect of whom the application is made. Every person shall be presumed to be capable of looking after her own health and safety, making reasonable judgments in respect of matters relating to her person, managing her own affairs and making reasonable judgments in respect of matters relating to her estate until the contrary is proved to the satisfaction of the Tribunal.
Orders should not be made if the needs of the person can be met by other means less restrictive of their freedom of decision and action. A plenary guardian should not be appointed unless the Tribunal is satisfied that a limited order is not sufficient to meet the needs, and any order made should impose the least restrictions possible in the circumstances on the person's freedom of decision and action, and the Tribunal should consider the wishes of the person in making decisions in relation to matters before it.
Issues arising in the applications
The issues to be decided in this matter are:
1)Is the represented person a person for whom guardianship and administration orders may be made?
2)If so, is she in need of a guardian and an administrator of her estate and what functions should be included in any orders made?
3)If a guardian and an administrator are to be appointed, who should be appointed to these roles?
4) Should the Tribunal intervene in the EPA executed by the represented person as proposed by the Public Advocate?
Evidence and material before the Tribunal
Medical evidence
There was no recent specialist assessment of the represented person's capacity to make financial or personal decisions before the Tribunal, such as a neuropsychological assessment of the represented person.
The only recent medical report is of Dr PW, a general practitioner who has known the represented person for four years. His report notes 'traumatic brain injury' and epilepsy with 'fluctuating' impairment. In response to the question 'can the person make reasonable decisions now in relation to personal health care, living situation and financial affairs?', the response from Dr PW is 'not sure'. The doctor responds 'not sure' to the question whether the represented person could execute a valid EPA. The report says the represented person can make a 'limited' contribution to the hearing.
The medical and other professional evidence before the Tribunal regarding the represented person refers to significant physical disability, and reports she is dependent on others for support with all activities of daily living, including toileting, access to food and drink, transport and dressing. She is a wheelchair user, vision impaired and legally blind. The early medical records include records of prolonged resuscitation of the represented person at birth. Although there are references in later reports to the represented person suffering a brain injury in early childhood following being dropped on her head, there is no record of this in the historical material. The material before the Tribunal supports the finding that the represented person has an acquired brain injury from birth.
Early records produced from the service provider who provided services to the represented person in childhood, adolescence and early adulthood refer to assessments conducted over this period, and report the represented person as being in the 'mildly retarded range with severe perceptual problems', or to 'borderline intellect or borderline intellectual disability'.
The most recent specialist reports before the Tribunal are associated with the finalisation of the represented person's personal injuries claim following injuries sustained in a motor vehicle accident in 1997. The reports prepared for the claim include a report in 2004 from Dr NA, orthopaedic surgeon, which refers to pre‑existing cerebral palsy and acquired brain injury. The report notes that:
[s]ince the accident in 1997, her psychosocial problems have increased with increasing panic attacks. It is my conclusion that her disabilities have been accentuated and accelerated.
In addition, following her injuries, the represented person was reported to be suffering 'significantly impaired concentration'.
A report dated 10 September 2003 of Dr JK, a consultant physician in rehabilitation medicine, prepared for the solicitors then acting for the represented person, states that the represented person has:
… a very limited grasp of the nature of her claim and in that sense her capacity to provide instructions to [solicitors] is at the most basic level and in response to the question whether in my opinion your client is capable of managing her financial and other legal affairs I do not believe that this woman can conduct her affairs. I regard her as a vulnerable individual and potentially subject to the manipulation of others. I would strongly recommend that her affairs are placed in the hands of a court appointed independent trustee.
In contrast, a report dated 11 November 2005, by MM, who reported she had a Masters degree in Applied Psychology, notes she makes her comments based on her 'professional experience and personal observations' of the represented person, with whom she reported contact since August 2000, and not on any psychometric testing of the represented person. She notes that her views are personal and not made in her capacity as an employee of the DSC. She states that the represented person is, in her opinion, able to pay household bills and manage her pension income. She concludes that the represented person is:
… not literate and not articulate but this does not detract from her capacity to make important decisions about her own life. I have discussed with [the represented person] the need for her to seek advice from a reputable financial adviser and she says she intends to begin with a discussion with her current bank.
Public Advocate's submissions
The material provided by the Public Advocate indicates that the represented person received funds in settlement of her claim personally, rather than the funds being paid into trust as recommended by Dr JK. The Public Advocate reports that the represented person referred to losing $300,000 of the funds paid in settlement of her claim, as the company handling the investment of her funds 'went bankrupt'. The spouse is reported to confirm this. The Public Advocate's investigator reports that liquidators were appointed in 2007 in respect of the company and, over time, approximately $157,415.97 was returned to the represented person in a sequence of cheques which were deposited into accounts in her name or in joint names with the spouse, but the Public Advocate reports that the balances held in the bank accounts of the represented person are negligible. The investigator reports that two cheques for $7,496 and $3,123 paid by the liquidator in 2012 remain unpresented. The Public Advocate submits that neither the represented person nor the spouse could give him an explanation as to how money received had been expended. The Public Advocate submits that there is a need to clarify what has happened to these funds.
The Public Advocate reports that the represented person executed an EPA in September 2009 appointing her spouse as her attorney. The report notes that the spouse said that there were three EPAs previously executed by the represented person as the other documents had been lost. In the hearing, he blamed carers for this. The report states that the bank account of the represented person credited with her pension is regularly overdrawn. One of the service providers reports that the represented person and her spouse have had problems with overdue bills, and submits that support is required for planning and budgeting and managing household accounts. The Public Advocate submits that the represented person has not been able to manage her finances adequately and is heavily influenced by and reliant on her husband.
The Public Advocate questions the spouse's ability to manage his own funds and those of the represented person. This arises in part from the medical reports received by the Tribunal and the Public Advocate regarding the application made in respect of the spouse. The material submitted notes the spouse has an acquired brain injury as a result of a motor vehicle accident. The reports record that the spouse is said to have had a history of aggressive behaviours which pre-existed his head injury.
The Public Advocate submits that the represented person may be able to manage simple financial matters, but that she is not able to give an account of what happened to the funds received from the liquidator, and her reliance on her spouse regarding financial and other matters has been to her detriment. It is submitted that the complexity of the financial circumstances now facing the represented person mean that she is not able to manage her estate and that an administrator needs to be appointed. The Public Advocate proposes the appointment of the Public Trustee or the sister of the represented person and the revocation of the EPA made in favour of the spouse.
Other material before the Tribunal
In the written material, allegations are made about the circumstances and care of the represented person by the spouse. At the hearing, no issue was taken by counsel for the represented person with any of the allegations made in the material. The spouse did challenge some of the allegations and these matters will be referred to later in these reasons.
In respect of the guardianship application, the material before the Tribunal alleges that the spouse has placed the represented person at risk because he cancelled services or had often refused service providers access to their home, with the result that the represented person has at times been left without personal services on which she relies. It is alleged that over several years, a number of services have been trialled and have been cancelled or withdrawn because of the spouse's behaviours, which included angry and personal verbal abuse and threatening and disinhibited behaviours with carers. Service providers were said to be unable to accede to the spouse's 'unreasonable demands' and were alienated from the represented person and her spouse because of this. Allegations are also made of neglect of the represented person by the spouse, including leaving her on the toilet for three hours while he went out. It is reported that the represented person's need for support is much higher than that of the spouse because of her physical disabilities, but that the spouse does not recognise this. It is alleged that he transfers her unsafely, which has resulted in injury to her.
Allegations are made of domestic violence from the spouse to the represented person, including physical violence and threats. The material before the Tribunal refers to the represented person separating from the spouse, but later returning to the home.
The mother of the represented person says that the represented person suffered a considerable brain injury and had cerebral palsy, intellectual disability and visual problems as a result. She says that the represented person lived at home for 21 years of her life and had considerable support through the original service provider. The mother says that the represented person's spouse made it very difficult for every family member to see the represented person. She says that the family was 'just removed from [the represented person's] life and it got to the point we were abused and our lives became absolute misery'. She said that the represented person was in a nursing home prior to her marriage to her spouse and when returned to the nursing home from outings with the spouse, she was observed to have bruising over her body. The mother said the facility asked the family what they intended to do about it but the family were unable to do anything as the represented person was over 18 and had 'made her choice'. In her written material, the mother refers to an application she made for the appointment of a guardian for the represented person in 1994, which was at that time opposed by the represented person and the Public Advocate. The application was dismissed.
The mother describes the situation of the represented person 'as a 20 year abusive situation'. The mother denies that there had been an estrangement in the true sense of that word between the represented person and the family and says she believes that these concerns were 'overstated'. She argues that issues relating to the spouse could be dealt with if she and her daughter are the appointed guardians. In her evidence, the sister says that she has had little contact with her sister for 15 years until the first hearing, and that the recent contact between them was hidden from the spouse because of concerns for the represented person's safety. The sister had considered how the issue of reconciliation with the spouse could be managed if she and her mother were the appointed guardians, and states she believes that they would be able to deal with this if they could be certain that the represented person was safe and the domestic violence issues had been addressed by the spouse.
The spouse says that he and the represented person have been married for 19 years. He says that the mother had said to the represented person before their marriage that it was a choice between her family and the spouse. The spouse denies he has deliberately hurt the represented person as alleged in the material before the Tribunal. The spouse agrees that the represented person's leg was broken when he fell on her when moving her but that this was an accident. When questioned by the Public Advocate in the final hearing about allegations of physical harm to the represented person, the spouse lifted a chair over his head. He said he did this to show he was 'very strong'. He could transfer the represented person 'with one hand' (T:35; 08.03.13).
In response to questions from the Public Advocate's investigator about bruising on the represented person's body, the spouse said that the bruising was because of her blindness and knocking into things (T:27; 08.03.13). In response to questions about bruising reported on the represented person's abdomen late in 2012, he said he had no idea about this. The spouse says if he had physically abused the represented person as alleged, she would be in hospital and he would be in gaol (T:38; 08.03.13). He denies verbal abuse of carers or the represented person. He agrees he was perceived as 'aggressive' by a service provider (T:28; 08.03.13) and says that he has a powerful voice which might make the represented person 'jump' (T:30; 08.03.13).
The spouse denies he has cancelled services but agrees there have been 'big disagreements' with two service providers. He says that he had been 'quite friendly' to one service provider and that they had 'walked out' (T:38; 08.03.13).
The spouse says he encouraged the contact between the represented person and her mother following the first hearing. In response to the represented person saying that she wanted a guardian and an administrator, the spouse said 'she wants her mother and sister. I don't ban that'. He agreed that the represented person had attempted to hide her contact with her family from him (T:30; 08.03.13) but that he 'knew something was going on' (T:40; 08.03.13). He confirmed in the hearing that he was not happy for the represented person's mother or sister to visit at their home. He said this was because the mother and the sister had 'stolen some of their stuff'.
The spouse said the represented person managed her own shopping and banking and that he did not have access to her savings bank account. He said the represented person controlled their money and his life (T:30; 08.03.13) as he could not leave her alone, was 'ignored' for the sake of the represented person (by service providers), and the care he received was insufficient as a result, but he did not mind.
In relation to the funds returned from the liquidator of the company, the spouse said he was not sure what money had been returned, but that some cheques had not arrived and that he was sorting this out and had been doing so for about a year. He said that their pensions might be reduced because of funds received but could not say how much money remained of the represented person's settlement monies. He could not say in the hearing if it was $80,000 or $280,000 but that it 'was a lot of money' (T:31; 08.03.13).
The evidence of the mother that the spouse restricted access of the represented person to her family is supported by the represented person's own evidence that she hid her telephone contact with her sister from her spouse following the first hearing (T:6; 08.03.13). Although the represented person was not directly questioned about the allegations of domestic violence, as noted, none of the allegations made in any of the material before the Tribunal was challenged by her. The represented person interposed and said in the final hearing 'it's not safe' (T:24; 08.03.13) when her sister was being questioned about her previous separations from the spouse and the potential for a future reconciliation.
It is also said that the couple is at risk of eviction action from their Department of Housing home following inspections of the property, which is said in the applicant's submissions 'not to meet minimum standards for cleanliness and safety and imposes a fire and health risk to neighbouring properties'. There is said to be a build up of material around the house, which it is alleged is hazardous. It is said that the spouse collects objects and demonstrates hoarding tendencies. The spouse at the final hearing said that the most recent service providers had said the house had been dangerous for sometime because of 'clutter' (T:29; 08.03.13), but he disagreed with this.
It is alleged that utilities have been disconnected due to non-payment and accounts left unopened. The vehicle of the spouse used to transport the represented person is said to be in a state of disrepair.
The spouse opposes the orders and rejects the contention that the represented person has any cognitive impairment. The represented person, too, does not accept that she has an intellectual disability, but it is said on her behalf that she understands the nature of the orders proposed.
Is the represented person a person for whom orders may be made?
Although, through counsel, the represented person supports the appointment of both a guardian and an administrator of her estate, the Tribunal must be satisfied she is a person for whom those orders may be made. Relevant to this consideration is the concession by the represented person that orders may be made.
The medical evidence before the Tribunal is limited and, in particular, there has not been a recent neuropsychological assessment of the represented person. The Tribunal is therefore thrown back on the historical material and other material before it to determine these applications. The Tribunal is satisfied on all of the evidence, including the medical reports from Dr JK, the report of Dr W and the historical records, that the represented person does have a mild intellectual disability, which is a mental disability for the purposes of the GA Act. The Tribunal is satisfied that the represented person is unable to make reasonable judgments in relation to her estate; in particular, in protecting her interests in relation to the disposal of monies recovered from the liquidator. The Tribunal accepts the submission that the represented person has been unable to give an account of the use of her funds, has been reliant on her spouse, and is not able to act on her own behalf in relation to her financial affairs.
The significant physical disabilities of the represented person, her mild intellectual disability and her past reliance on her spouse means that the represented person is in need of oversight and care in the interests of her health and safety; in particular, in relation to the provision of services and, most immediately, where she should live.
The Tribunal prefers the evidence of the applicant and the other service providers to that of the spouse. The Tribunal finds that the spouse cancelled, or that his behaviour led to the withdrawal of, services to the represented person with the result, at times, of the neglect of her most basic needs. Despite her complete reliance on these services, the represented person was unable, it seems, to protect her own interests and retain services.
Is the represented person in need of a guardian and an administrator and what functions should be included in any orders made?
The evidence put before the Tribunal supports the need for a guardian in relation to the care needs, accommodation, medical treatment and an administrator to manage the financial affairs of the represented person. All parties other than the spouse support the need for orders to be made. The represented person supports both the appointment of a guardian and an administrator of her estate.
The represented person appears not to appreciate the full extent of her financial situation because of her intellectual impairment and her past reliance on her spouse who, it is reported and the Tribunal accepts, has managed their financial affairs, including through an enduring power of attorney of the represented person. It appears from the material before the Tribunal that the financial affairs of the represented person are in some disarray, largely because she relied on her spouse to manage her affairs, and he himself has cognitive impairments. The medical evidence before the Tribunal regarding the spouse confirms that he has an acquired brain injury. Although the spouse rejects the contention that assistance is needed to manage their affairs, the Tribunal prefers the evidence of the Public Advocate's investigator regarding the interactions of the investigator with the spouse that the spouse is impulsive, aggressive and unable to give any account of financial affairs of the represented person for whom he is appointed as an attorney. The Tribunal accepts the reports of the service providers that the spouse has difficulty understanding, managing and planning financial matters; his own evidence in the final hearing regarding the financial affairs of the represented person supports this.
The Tribunal accepts the contentions of other parties that the represented person was subject to the controlling, and reportedly impulsive and aggressive, behaviours of the spouse; in this regard, the Tribunal accepts the represented person's own assessment of her situation as 'not safe'. The Tribunal finds that it is more likely than not that, due to the spouse's own acquired brain injury and consequent impairments, he is unable to appreciate and respond appropriately to the represented person's dependence and her care needs. The Tribunal accepts the evidence of the mother that the control exercised by the spouse and the reliance of the represented person on him also resulted in the isolation of the represented person from her family for many years. The Tribunal rejects the spouse's contention that the mother and the sister of the represented person were not welcome at their house because they stole from the represented person as lacking any credibility. It is not consistent with the evidence of the lack of contact and it is more likely that cutting the represented person off from her family by the spouse was an element of the domestic violence that the represented person has suffered. The represented person is in need of a guardian to determine the contact she has with others, and the nature and extent of that contact.
At the final hearing, the represented person indicated that she wished to separate from her spouse. The applications were prompted because of the cancellation of services by the spouse and concern by the applicant that the represented person's health and safety were at risk. As a result of the separation, the represented person may not require a guardian to determine her access to services and accommodation or the contact she has with others in the future, as arrangements for services and her living situation may be able to be negotiated directly with her. At the final hearing, the represented person expressed her thanks to the staff member of a previously cancelled service provider and appears to be able to accept services for herself. However, the Tribunal considers, in all the circumstances, and given the reported history of previous separations and reconciliations with the spouse, that the represented person remains an extremely vulnerable person who is presently in need of independent decision‑makers for oversight of her living situation and the services and accommodation to which she has access. The contact she has with her spouse needs to be considered to ensure her physical safety, including appropriate transfers and care. The evidence is less clear regarding medical treatment decision‑making but, on all of the evidence, the Tribunal is satisfied, given the history, that the represented person requires oversight and care in this regard.
In respect of financial affairs, there is a need for an administrator to ascertain the extent of the represented person's estate and to locate and secure any funds owing to her. The history of financial dealings set out in the report of the Public Advocate indicates the need for an experienced administrator to trace the funds and determine if any action is possible regarding any outstanding funds from the liquidator, and to ascertain if other persons hold any funds or assets of the represented person. If the represented person proceeds with her stated intention of separating from her spouse permanently, it may be that, in time, she will need a case guardian for Family Court proceedings in relation to property settlement, including property purchased with her funds. The Tribunal accepts the submission of the Public Advocate that the represented person may be able to make judgments about her pension income and, for this reason, a limited order is made excluding the management of the pension.
Who should be appointed as guardian and administrator?
Having determined that orders should be made, the Tribunal must decide who should be appointed in the roles of guardian and administrator.
The represented person, in consenting to the orders, proposes her mother and her sister as guardians and administrators of her estate. It was her clearly expressed wish at the hearing, and counsel for the represented person indicates, that the represented person had considered this question closely (T:9; 08.03.13).
Both the mother and the sister consent to their appointments. Both have worked in the past with persons with disabilities and have considerable relevant experience regarding the services that the represented person requires. Through their evidence, their care and concern for the represented person is clear.
The applicant expressed reservations about the appointment of the mother and the sister, and says she had not had notice of the proposed appointments prior to the final hearing. While the applicant did not doubt the mother and the sister's care for the represented person, she said that their relationship with the represented person had been 'fractured for some time' and that the burden of guardianship would put additional stress on rebuilding that relationship.
The question over the durability of the represented person's decision regarding the separation is relevant to the appointment of the guardians. It is understood from the material before the Tribunal that the represented person has been in a reportedly abusive relationship with her spouse for over 20 years and that allegations of physical abuse and bruising to the represented person were made prior to her marriage. She has not had contact with her mother and her sister for at least 15 years. It is also relevant that she has separated from the spouse in the past and has returned to him, reportedly withdrawing allegations of domestic violence by the spouse. If the represented person reconciles with her spouse in the future, there will be a need for negotiation with him by the guardians about a range of matters. His hostility to the mother and the sister would make such negotiations impossible. That is not to say that it will be any easier for the delegated guardian of the Public Advocate; the spouse's interaction with the Public Advocate's investigator when the investigator was attempting to arrange independent legal advice for the represented person indicates the spouse's likely response to interventions by a delegated guardian of the Public Advocate. These factors reinforce the need for the appointment of guardians, and the complexity and sensitivity of the task to be undertaken by them in responding to the needs of the represented person.
Unless the Tribunal appoints her jointly, the Public Advocate may not be appointed as guardian unless there is no one suitable or willing to be appointed (s 45(3) of the GA Act). Having regard to the expressed wishes of the represented person that her mother and her sister be appointed, the reservations of the applicant and the Public Advocate about the appointment of the mother and the sister so soon after the re‑establishment of contact between them and the represented person, and the possible reconciliation of the represented person with her spouse in the future, the Tribunal is satisfied that it is in the best interests of the represented person that the mother and the sister be appointed jointly with the Public Advocate as limited guardians of the represented person.
An appointed administrator must be able to perform the functions vested in him or her. One of the functions identified by the Public Advocate in submissions to the Tribunal is the tracing of funds recovered by the liquidator and returned to the represented person. This may be a complex and lengthy undertaking and may involve interactions with the spouse. Although the mother and the sister are willing to undertake the role, the Tribunal is satisfied that it is in the best interests of the represented person that she have the benefit of the experience and expertise of the Public Trustee as the administrator of her estate, and that existing conflict between the spouse and the mother and sister is not heightened. If the represented person reconciles with her spouse, an independent administrator will be essential.
Intervention in the EPA
In respect of the application by the Public Advocate for the revocation of the EPA, the Tribunal finds that the Public Advocate has a proper interest in bringing the application pursuant to s 109(1) of the GA Act, as her statutory functions include making applications under the GA Act (s 97(1)(a)), the investigation of matters referred by the Tribunal (s 97(1)(b)(iii)), and the investigation of complaints or allegations that a person is in need of an administrator or a guardian (s 97(1)(c)). It was in the course of the investigation that the Public Advocate became aware of the EPA of the represented person held by the spouse, and that significant sums had been deposited into accounts of the represented person and joint accounts in both their names, and that neither the spouse as attorney nor the represented person could give an account of the funds.
In determining this application, as the Tribunal made an order revoking the EPA pursuant to s 108(1) of the GA Act as inconsistent with the plenary functions vested in the Public Trustee as administrator, there is no need to make an order intervening in the EPA, pursuant to s 109 of the GA Act, and so that application is dismissed.
Orders
GAA 3704 of 2012
1.WMW of [address suppressed] and TLJ‑C of [address suppressed] and the Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia are appointed joint limited guardians of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)to determine the services to which the represented person should have access.
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.This order is to be reviewed by 8 March 2014.
GAA 802 of 2013
1.The time for service of notice of the application is shortened pursuant to s 41(3)(a) of the Guardianship and Administration Act 1990 (WA).
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator of the estate of the represented person with all the powers and duties of a plenary administrator conferred by the Guardianship and Administration Act 1990 (WA) save and except the collection of the Disability Support Pension of the represented person.
3.The enduring powers of attorney dated on or about 2006 and 23 March 2009 by which the represented person appointed PB to be her attorney are revoked.
4.This order is to be reviewed by 8 March 2014.
GAA 717 of 2013
1.The application is dismissed.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER