KISA

[2006] WASAT 148

KISA [2006] WASAT 148

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 148
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:194/2006	Heard:	7 FEBRUARY 2006
Coram:	MR J MANSVELD (MEMBER) MS J STANTON (SENIOR SESSIONAL MEMBER) MR E LEIPOLDT (SENIOR SESSIONAL MEMBER)	Delivered:	9/06/06
No of pages:	25	Judgment Part:	1 of 1
Result:	A limited guardian is appointed A plenary administrator is appointed
Category:	B
PDF Version

Parties:	GRA DHA JKAA GGB KISA
Catchwords:	Guardianship and administration – Capacity – In need of a guardian – In need of an administrator – Needs of the person – Less restrictive alternative to the appointment of a guardian – Less restrictive alternative to the appointment of an administrator – Need for an independent guardian – Revocation of an enduring power of attorney
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(d), s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 64, s 64(1)(a), s 64(1)(b), s 68, s 104, s 106(1), s 108(1)(a)
Case References:	Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320 Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KISA [2006] WASAT 148 MEMBER : MR J MANSVELD (MEMBER)

MS J STANTON (SENIOR SESSIONAL MEMBER)
MR E LEIPOLDT (SENIOR SESSIONAL MEMBER)

HEARD : 7 FEBRUARY 2006 DELIVERED : 9 JUNE 2006 FILE NO/S : GAA 194 of 2006

GAA 171 of 2006
GAA 2229 of 2005
GAA 2228 of 2005
GAA 2151 of 2005
GAA 2150 of 2005

BETWEEN : GRA

DHA
JKAA
GGB
Applicants

AND

KISA
Represented Person

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Catchwords:

Guardianship and administration – Capacity – In need of a guardian – In need of an administrator – Needs of the person – Less restrictive alternative to the appointment of a guardian – Less restrictive alternative to the appointment of an administrator – Need for an independent guardian – Revocation of an enduring power of attorney

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(d), s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 64, s 64(1)(a), s 64(1)(b), s 68, s 104, s 106(1), s 108(1)(a)

Result:

A limited guardian is appointed

A plenary administrator is appointed

Category: B

Representation:

Counsel:

Applicants : Self­represented
Represented Person : N/A

Solicitors:

Applicants : Self-represented
Represented Person : N/A

Case(s) referred to in decision(s):

Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320



(Page 3)

Case(s) also cited:

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 A number of applications for guardianship and administration were lodged by the children of a 94-year-old woman who was still living in her home. Two of the children lived with her and provided care.

2 A further application was lodged requesting that the Tribunal determine that the represented person no longer had legal capacity and to declare that an enduring power of attorney executed in 2000 was in force. This application was withdrawn during the hearing.

3 The woman was also receiving care from Silver Chain and a representative of that agency was concerned that due to the woman's recent physical deterioration, she might not be able to continue to live at home. There had been a disagreement between Silver Chain staff and the children caring for the woman which had led to Silver Chain deciding that the provision of services would only take place if a security person was present when the care was given. Silver Chain was further concerned that the woman had not had a regular medical practitioner attending to her since April 2005 and this was compromising the care of the woman's chronic leg ulcer.

4 The children who cared for their mother disputed the concerns of Silver Chain and maintained that she could continue to be cared for at home if their siblings cooperated and gave assistance. The siblings were of the view that communication had broken down irretrievably and were sufficiently concerned about their mother's wellbeing that they proposed the appointment of an independent guardian.

5 The children who cared for their mother disputed the assessment of a general practitioner who had attended to the woman during the period from February to April 2005 and they sought an adjournment so that a fresh capacity assessment could be undertaken. The general practitioner had assessed the woman as being incapable of managing her financial affairs and that she suffered from a cognitive impairment as a result of cerebrovascular disease.

6 The representative of Silver Chain supported the general practitioner's assessment and also said that it was highly improbable that the woman was capable of making reasonable judgments about her personal and lifestyle matters.

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7 The Tribunal declined the request for an adjournment on the basis that there was sufficient concern about the current care and wellbeing of the woman that the applications should be heard immediately.

8 The Tribunal decided that the woman was no longer able to look after her own health and safety, and was more likely than not incapable of making reasonable judgments about her care and living arrangements. The Tribunal decided that it was in the woman's best interests for an independent guardian to be appointed. The Tribunal was not convinced that the views held by all the children were sufficiently separate from the intense conflict that existed to represent objective judgments of the woman's current and future care needs, and how those needs should be met.

9 The Tribunal appointed the Public Advocate as the woman's limited guardian with the authority to make decisions about where and with whom she should live, what services she should receive if she remained living at home, decisions about her treatment and health care, and also what contact she should have with others and the extent of that contact. The latter function was included in the guardian's authority because the conflict in the family had already caused difficulties in family members visiting the represented person.

10 In respect of the applications for administration, the children that cared for the woman argued that the informal arrangements in place for the management of her finances were working satisfactorily and should not be changed. This included the woman paying for the majority of the property and household expenses, and the continuation of a lease agreement that she had entered into with those children about four years ago. The woman was continuing to sign cheques on her bank account.

11 The Tribunal found that the woman was no longer able to decide whether the current arrangement of sharing household expenses was appropriate for her and that included the conduct of the rental agreement. The Tribunal was concerned that the status of the woman was that of a sub-lessee of the property which she owned and in which she lived. The Tribunal was of the view this required investigation.

12 The Tribunal was not satisfied that the enduring power of attorney executed by the woman in 2000 could effectively be used. Her bank had advised that it was not prepared to accept the authority of that instrument. The woman had purported to revoke the enduring power of attorney in

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April 2005 at a time when her general practitioner assessed her as being incapable of executing a new enduring power of attorney.

13 The Tribunal decided to appoint the two children whom the woman had nominated as her attorneys in 2000 as her joint plenary administrators. The Tribunal took the view that the carer children were in a potential conflict of interest in deciding their ongoing financial interests against those of the now incapable woman.

14 The Tribunal decided to revoke the enduring power of attorney to ensure there would be no confusion as to who carried the formal authority to manage the woman's estate.

Background

15 These reasons relate to a number of applications lodged with the Tribunal for KISA (the represented person), a 94-year-old woman who lives in her home with two of her sons, PRA and GRA. She has three other children, DHA (son), JKAA (son) and GGB (daughter).

16 The applications are: guardianship and administration by DHA and JKAA; guardianship and administration by GRA, and an application by DHA and GGB for the Tribunal to declare that the represented person does not have legal capacity and that an enduring power of attorney executed on 11 December 2000, is in force.

17 The legislation relevant to the applications is the Guardianship and Administration Act 1990 (WA) (the GA Act).

18 PRA lodged applications for guardianship and administration just prior to the hearing on 3 February 2006. The requirements for service of the notice of hearing in respect of these applications could not be met by the time of the hearing; however, PRA agreed that his submissions and proposals could be heard by way of the other applications before the Tribunal.

19 The hearing was attended by the represented person although she was unable to contribute to the proceedings. Her children attended, as did RB, husband of the represented person's daughter, GGB. Also attending were Ms Susan Buchanan, a clinical care manager with Silver Chain, Ms Roslyn Parker, a clinical nurse with Silver Chain, and LP and CG, representatives of the Public Advocate (Public Advocate).

20 During the hearing the represented person became very tired and was taken home by her son GRA, her primary carer. The Tribunal adjourned

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the hearing for this to occur and to enable GRA to be present by way of conference telephone. In this way he was able to participate for the remainder of the hearing.

Request for adjournment

21 PRA sought an adjournment of the proceedings to enable the represented person to undergo further assessment as to her capacity to make reasonable decisions about her person and estate, and also to have an assessment of her care needs undertaken by the relevant Aged Care Assessment Team (ACAT). PRA disagreed with the capacity assessment of April 2005 by Dr A Leckie, the represented person's former general practitioner. He alleged that Dr Leckie did not obtain consent for the assessment; the assessment is flawed in that the represented person was distressed at the time and the instrument of assessment, Folstein's Mini-Mental State Examination (MMSE) is not "safe"; and that there are better tests.

22 Discussion of Dr Leckie's assessment and report are dealt with later in these reasons.

23 As regards the ACAT assessment, one of the issues raised by the applications for guardianship is whether the represented person is able to remain living in her home. In his application for adjournment, PRA said this assessment would be useful to the Tribunal in its deliberations on the applications for guardianship and administration.

24 The request for adjournment was supported by GRA. It was not supported by the represented person's other children, Ms Buchanan of Silver Chain and the Public Advocate. DHA, JKAA and GGB submitted that PRA's request was a delaying tactic and that there had been ample time to have an ACAT assessment arranged. GGB referred to her disquiet about the poor state of the represented person's leg ulcer and that she was concerned about her mother's health and safety at home. DHA stated that he had a concern that the represented person had not had a regular general practitioner since April 2005. The Public Advocate agreed that an ACAT assessment could have been undertaken earlier; in fact one had been arranged just prior to the hearing but had been cancelled by GRA because, in his view, the represented person was too stressed. The most recent ACAT assessment was in 2002. Ms Buchanan said that currently Silver Chain was providing services to the represented person with a security person present (because of an incident discussed later in these reasons) and this could not continue for much longer.

(Page 8)

25 The Tribunal decided on balance to decline the application for an adjournment for the reason that it was satisfied that there was sufficient concern expressed about the represented person's current health and care arrangements to warrant the applications being heard immediately.

The written material

26 In addition to the applications, the represented person's children provided the Tribunal with a number of letters and submissions that were made available to the parties present at the hearing. The matters raised and stated in this written material were addressed in the oral evidence.

27 The Public Advocate proved a written report which too was made available to the parties at the hearing. The Public Advocate spoke to the report at the hearing.

28 Dr Leckie provided a report to the Tribunal as did Ms Buchanan of Silver Chain. Both will be discussed later in these reasons.

29 During the hearing PRA submitted a number of documents; the first is titled "Legal Mental Capacity: A Psychiatrist's Perspective" by Patrick Fitzsimmons, MD. It appears to have been obtained from the Internet on 31 December 2005. The second is titled "Mental Capacity, Litigation and the Aging Population" by Bennet Blum. This article appears to have been obtained from the Internet on 20 January 2006. PRA finally refers to an article "Living with Dementia" by the Alzheimer's Association of Australia.

The relevant legislation

30 When considering guardianship and administration, the Tribunal must be satisfied that the represented person is someone for whom a guardian and administrator could be appointed (the question of capacity) and if found incapable, whether the person should have a guardian and administrator appointed (the question of need). If a guardian and administrator are to be appointed, the final questions to be considered are what functions should be given to the guardian and administrator and who that guardian and administrator should be.

31 The relevant legislation is contained in s 3, s 4, s 43, s 44, s 64 and s 68 of the GA Act.

32 With regard to guardianship, the Tribunal needs to be satisfied that the represented person is incapable of looking after her own health and safety, or unable to make reasonable judgments in respect of matters

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relating to her person, or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others, and is in need of a guardian (s 43).

33 With regard to administration, the Tribunal needs to be satisfied that the represented person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate and is in need of an administrator (s 3, s 64).

34 The principles to be observed by the Tribunal when dealing with proceedings under the GA Act are set out in s 4. The primary concern of the Tribunal shall be the best interests of the represented person. The remaining principles are, firstly, that every person is presumed to be capable of looking after his or her own health and safety; of making reasonable judgments in respect of matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate. Secondly, an order appointing a guardian or administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.

35 The question of who should be appointed guardian is provided for in s 44 of the GA Act which reads:

"(1) A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal –

(a) will act in the best interests of the person in respect of whom the application is made;

(b) is not in a position where his interests conflict or may conflict with the interests of that person; and

(c) is otherwise suitable to act as the guardian of that person.

(Page 10)

(2) For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible –

(a) the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;

(b) the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;

(c) the wishes of the person in respect of whom the application is made; and

(d) whether the proposed appointee will be able to perform the functions vested in him.


(3) Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.

(4) The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.

(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act."

36 The question of who should be appointed administrator is provided for in s 68 of the GA Act which reads:

"(1) An administrator (including a joint administrator) shall be –

(a) an individual of or over the age of 18 years; or

(b) a corporate trustee,

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who has consented to act and who, in the opinion of the State Administrative Tribunal –

(c) will act in the best interests of the person in respect of whom the application is made; and

(d) is otherwise suitable to act as the administrator of the estate of that person.

(2) The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that –

(a) there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or

(b) the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.


(3) For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible –

(a) the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;

(b) the wishes of that person; and

(c) whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.


(4) The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.

(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal

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shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act."

37 With regard to the application by DHA for the Tribunal to declare that the represented person does not have legal capacity and that an enduring power of attorney executed on 11 December 2000 is in force, the relevant provisions of the GA Act are in s 104 and s 106. The former provides for the form which an enduring power of attorney must take and the latter authorises the Tribunal to make a declaration of incapacity if it is satisfied that the donor (represented person) is unable to make reasonable judgments in respect of matters relating to all or any part of her estate, and to declare that the instrument is in force.

The represented person's capacity

38 Dr A Leckie was the represented person's general practitioner from 25 February 2005 to 15 April 2005. He has provided the Tribunal with his medical notes for that period together with a "Doctor's Guide" dated 7 November 2005. The guide is a standard form the Tribunal requests medical practitioners to complete when applications are made under the GA Act.

39 The medical notes show that Dr Leckie attended to the represented person on four occasions: 25 February 2005, 11 March 2005, 1 April 2005 and 15 April 2005. On the last home visit he tested the represented person using the MMSE and she scored 15/30. The MMSE, a copy of which is included with Dr Leckie's "Doctor's Guide", shows that the represented person performed poorly on the categories of "orientation" and "recall". The suggested guideline on the MMSE for the severity of the impairment, rates the represented person as moderately impaired. On the basis of the assessment Dr Leckie advised GRA that it was his view the represented person's "… mental function is deficient" (page 2 of the medical notes). Dr Leckie acknowledged that functioning might fluctuate depending on the represented person's fatigue, alertness and "other factors".

40 In the "Doctor's Guide" of 7 November 2005, Dr Leckie states a diagnosis of dementia secondary to cerebrovascular disease and cerebral atrophy. He mentions a CT scan taken on 11 October 1999. He says that the represented person has "impaired cognitive ability" due to the cerebrovascular disease. Dr Leckie is of the view that the represented person is able to "communicate her personal care needs". He is unsure whether she is capable of making reasonable decisions about her living situation because "I've not had the opportunity of evaluating this in

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detail". He is of the view that the represented person is incapable of making reasonable decisions in relation to her financial affairs and that she is incapable of executing an enduring power of attorney.

41 As already mentioned in these reasons, PRA and GRA do not agree with Dr Leckie's assessment, the circumstances in which it was undertaken and the instrument used (MMSE). They submit that further specialist capacity assessment should occur.

42 Ms Buchanan, in her written report of 16 January 2006, states that the represented person appears confused at times but when lucid can converse reasonably, in particular about her physical issues and family issues. Ms Buchanan states in her report that the represented person's "fluctuating mental state" indicates that she could not manage day-to-day budgeting decisions or undertake forward planning.

43 When asked at the hearing as to whether the represented person could make decisions for herself in respect of where she lives and the sort of medical treatment she receives, Ms Buchanan responded "… I think it would be highly improbable" (page 45 of the transcript).

44 Ms Buchanan states in her written report that the represented person has deteriorated physically in recent times and that she now requires two staff to attend to her care due to her very limited mobility. She is presently receiving the maximum services available to her within the current care package arranged through the Department of Veterans Affairs. Any further physical deterioration may place in doubt the represented person's continuing care at home. GGB states that the represented person is so desperate not to go into aged care that she is always going to say "I want to stay at home" (page 24 of the transcript).

45 DHA, JKAA and GGB are of the view that their mother (the represented person) is no longer capable of making decisions in her own best interests. GGB particularly referred to the represented person's demeanour at the hearing when she said "… you can see she can barely speak for herself" (page 24 of the transcript). The Tribunal has earlier mentioned in these reasons that the represented person was unable to contribute to the proceedings.

46 The Public Advocate has visited the represented person in her home and submits that she found her largely unresponsive even to basic questions. The Public Advocate supports the view of Ms Buchanan, adding that Silver Chain have been involved with the represented person since 1999 and have day-to-day contact with her. In the view of the

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Public Advocate, the represented person is someone for whom orders could be made.

47 Because of the considerable conflict between the children of the represented person, the Tribunal has given greater weight to the information from sources outside of the family, in particular that of Dr Leckie and Ms Buchanan. The Tribunal is satisfied that it has sufficient information to make a finding about the represented person's capacity and that further assessment is not warranted, despite the concerns of PRA and GRA about the conduct of Dr Leckie's assessment in April 2005 and their opinion about the value of the MMSE as an assessment tool.

48 On the available evidence, the Tribunal is satisfied that the represented person is no longer capable of looking after her own health and safety, and is more likely than not unable to make reasonable judgments in respect of decisions relating to her person, including her changing care and health needs, and where it is in her best interests to reside. The Tribunal accepts Dr Leckie's assessment that the represented person suffers from an underlying condition that impairs her cognition. Ms Buchanan states that in the experience of Silver Chain staff, the represented person's mental state fluctuates but that it is highly improbable she can make significant personal decisions. The Tribunal acknowledges that it is the represented person's strong wish to remain at home but that with her impaired judgment, she is unable to decide whether that is in her best interests.

49 The Tribunal finds, therefore, that the represented person satisfies the provisions of s 43(1)(a) and (b) of the GA Act and that she is a person for whom a guardian could be appointed.

50 With respect to administration, it is the assessment of Dr Leckie that the represented person is not able to make reasonable decisions about her estate and this view is supported by Ms Buchanan and the Public Advocate. As with personal decision-making, Ms Buchanan is of the opinion that the represented person's variable mental state precludes her from managing her finances. Dr Leckie assesses the represented person as no longer capable of executing an enduring power of attorney.

51 The Tribunal finds that the represented person satisfies the provisions of s 64(1)(a) of the GA Act and that she is a person for whom an administrator could be appointed.

(Page 15)

Is the represented person in need of a guardian and administrator?

52 When a person is found to be incapable, pursuant to s 43(1)(b) (guardianship) and s 64(1)(a) (administration) of the GA Act, the question that next has to be considered is whether she is in need of a guardian and administrator. Such need is read subject to s 4(2)(c) of the GA Act, which provides that 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 Tribunal, be met by other means less restrictive of the person's freedom of decision and action.

53 The meanings of "need" in respect of guardianship and administration and the "needs of the person" as it refers to the possibility of a less restrictive alternative to the making of formal orders, were considered by the Full Board of the Guardianship and Administration Board in Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320:

"… it is apparent that where the provisions of s 43(1)(b) are met it will usually follow that there will be a need for a guardian as provided in s 43(1)(c). The same can also be said in relation to the need for an administrator under s 64(1)(b). This is so because unless a guardian or administrator is appointed there would in most cases be no one with legal authority to make decisions in respect of the represented person. There would in other words be a legal vacuum. Therefore the 'need' in those sections in our view means the 'need' for someone to have formal legal authority to make decisions on behalf of the represented person in order to resolve issues relating to the personal affairs of the represented person or to manage and protect the financial estate."

54 There may, however, not be a need for a guardian pursuant to s 43(1)(c) or an administrator pursuant to s 64(1)(b) if for example:

"… there is some other statutory provision which gives legal authority for the decision-making in question … or if there is in fact no live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for this Board to intervene in the life of the represented person by making a formal order." (Review of Guardianship and Administration Orders in respect of MM at 330.)

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55 The test as it relates to the "needs of the person" is of a broader nature. In MM at 330:

"…the phrase 'needs of the person' …involves a different test. The 'needs' there described are of wide import and encompass all the wants and necessaries of the person. Thus there is a two step process. The Board must first determine whether there is a need for a guardian in s 43(1)(c) (or a need for an administrator in s 64(1)(b)) and then move on to the issue whether notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person's freedom of decision and action."

56 The Tribunal respectfully agrees with the reasoning in MM.

The need for a guardian

57 The represented person lives in her home with care provided by her sons GRA and PRA, and with the primary carer role being taken by GRA. This has been the situation for the last seven years.

58 Silver Chain has been providing the represented person with personal care and assistance with activities of daily living since October 1999. As already mentioned in these reasons, Ms Buchanan reports that the represented person's care needs have recently increased because of her physical deterioration such that she now requires two staff to attend to her care.

59 A question raised by Ms Buchanan is whether it will be in the represented person's best interests to remain at home if further physical deterioration occurs.

60 A more immediate concern is whether Silver Chain can continue to provide assistance to the represented person in the circumstances where the agency currently requires staff to be accompanied by a security person. According to Ms Buchanan, this occurred as a consequence of a recent incident where care staff believed they were being photographed by PRA while assisting the represented person and this caused them some distress. Management of Silver Chain became involved which apparently lead to GRA stating that he wanted to stop contact with the service. Silver Chain eventually agreed to continue to assist the represented person but only with a security person present. Ms Buchanan states that the situation has been exacerbated by threats of litigation against her agency.

(Page 17)

61 PRA and GRA see the incident differently. PRA says that he was taking photos of the family dog jumping onto the care aides. GRA says that he was concerned that his mother had, in his view, been left unattended for three days by Silver Chain without her leg ulcer being properly dressed. He felt that the service of Silver Chain had fallen away in the last 12 to 18 months.

62 Ms Buchanan states a further problem encountered by her agency in providing continuing services is that the represented person has not had a regular general practitioner since April 2005. Silver Chain requires the presence of a treating doctor to discuss treatment and health issues. Ms Buchanan says that her agency is unable to give optimum treatment to the represented person's leg ulcer because of the lack of a treating doctor. According to Ms Buchanan, it is a condition of ongoing service provision that a general practitioner be available.

63 PRA states that GRA has used locum medical practitioners when a regular doctor has not been available. GRA states that he has endeavoured to have a treating doctor for the represented person at all times. In his view, it is other family members' interference and the resulting friction within the family that has caused medical practitioners to decline to attend to the represented person.

64 Dr Leckie, in a letter to DHA dated 18 April 2005, advised that GRA had informed him that he would be obtaining another medical practitioner to provide future care for the represented person. Another general practitioner, Dr Murray Dixon, in letter to the Tribunal dated 1 February 2006, stated that after having spoken to GRA and GGB he had decided that he would not be able to continue to provide medical care for the represented person. He had seen the represented person on only two occasions. Dr Nixon went on to say that "I do not feel that the current environment is conducive to her [the represented person's] optimum care, but it is beyond my powers to change this".

65 PRA states that he believes the represented person is in reasonably good health and that she can be maintained at home if all family members are prepared to cooperate. He describes himself as a co-carer; he cooks the meals and is at home until nearly 1 pm each day to assist GRA.

66 GRA says that he cares for the represented person full-time. He says that he has done all that he can for her ongoing care such as arranging for the provision of a wheelchair, electric bed, railings, and a commode. He has also arranged reflexology for his mother. GRA supports other family

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members participating in the represented person's care, although he says that there have been a lot of problems of family members visiting and upsetting the represented person. He states that he has never denied his siblings' access to their mother.

67 Both PRA and GRA are of the view that guardianship is not required. They say they remain in the best position to care for the represented person as has been the situation for the last seven years. It is submitted that the represented person's health is sufficiently stable, despite the presence of a chronic leg ulcer, for the current care arrangements to continue.

68 GGB has expressed a concern about the health and safety of the represented person remaining at home and says that Dr Nixon has told her the represented person could die from the effects of the leg ulcer. GGB states that GRA will not accept questioning of the represented person's health and ongoing care.

69 JKAA states that he is disturbed at what he sees as a lack of transparency in the conduct of the represented person's health care. He says that GRA refuses to follow the advice of medical practitioners. JKAA states that, in his view, the represented person's health has worsened.

70 DHA states his concern at the allegation that when GRA leaves the home of an afternoon, he gives the represented person a sleeping tablet and puts her to bed. GRA denies that this occurs.

71 The Public Advocate submits that an ACAT assessment is required to ascertain the represented person's care needs given the view of Silver Chain that she may no longer be able to be maintained safely in her home. According to the Public Advocate, an ACAT assessment has been proposed for some time but it has not been pursued by family members, GRA and PRA in particular. The ACAT has recently attempted to arrange an assessment without success. The last ACAT assessment was conducted in 2002.

72 GRA maintains that he has tried to have an ACAT assessment undertaken for the represented person, but the timing has not been appropriate. He and PRA continue to support the need for an ACAT assessment.

73 The Public Advocate proposes that a guardian be appointed for the represented person with the authority to make decisions about her

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accommodation, the provision of services, consent to medical treatment and with whom she should have contact. JKAA and DHA support this proposal.

74 The Tribunal is persuaded by the submission that the represented person is in need of a guardian. There are "live issue[s]" in relation to her personal affairs (see: MM) and there is conflict in respect of these issues. The represented person currently lives at home, but there is a question of whether she can continue to be safely maintained in that environment under the current care arrangements. The Tribunal prefers the evidence of Ms Buchanan and the Public Advocate in that regard. An objective assessment of the represented person's care needs must be undertaken and acted upon. The Tribunal is not confident, on the evidence before it, that GRA and PRA as carers will pursue the ACAT assessment in a timely manner and act on the recommendation should it be that the represented person requires additional care from external providers or is required to move to an aged care hostel or nursing home.

75 The Tribunal shares the concern that the represented person has been without a regular general practitioner since April 2005 and takes the view that someone with formal authority is needed to be able to engage with a medical practitioner so that unambiguous treatment decisions can be made, especially in respect to the represented person's chronic leg ulcer. The current relationship of GRA and PRA with Silver Chain is unacceptable in that it is impeding the represented person's optimum care.

76 The Tribunal therefore finds that the represented person is in need of a guardian pursuant to s 43(1)(c) of the GA Act.

77 There is no less restrictive alternative to the making of a guardianship order as envisaged by s 4(2)(c) of the GA Act. The represented person's children are unable as a group to decide what is in their mother's best interests. The evidence shows that there is a division in the family which appears not to be open to resolution, at least in the immediate future, which is the time that important decisions need to be made for the represented person.

78 When deciding who should be appointed the guardian, the Tribunal must be satisfied that the person will act in the best interests of the represented person, not be in a position of a conflict of interest with the represented person and otherwise be suitable to act as guardian. Other factors that the Tribunal should take into account as far as is possible, are the desirability of preserving existing relationships within the family, the

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compatibility of the proposed appointee with any appointed administrator, the wishes of the represented person and whether the proposed appointee will be able to perform the functions given to him or her. Importantly, the Tribunal should not appoint the Public Advocate as a guardian unless there is no other person who is suitable or willing to act (see: s 44(5)).

79 At times prior to the hearing, by way of written submission to the Tribunal and during the hearing, family members have nominated themselves alone, or in combination, as guardian or joint guardians of the represented person. The Public Advocate has also been nominated by some family members. In addition, PRA and GRA have submitted that no guardian is required because the existing living and care arrangements for the represented person are appropriate and should continue.

80 The Tribunal has already determined that a guardian is needed. The view of those that ultimately support the appointment of a guardian independent of the family (DHA, JKAA and GGB) is perhaps best encapsulated by GGB when she says:

"I think now that we've reached the stage where no-one in the family can effect any resolution regarding the future welfare of my mother and I have to reluctantly agree with both [DHA] and [JKAA] and if they don't want to go ahead with their – if they're saying they're not – they don't think they can act as guardians, well I have to reluctantly agree, I guess, that we have an independent guardian." (Page 92 of the transcript.)

81 The Tribunal agrees with the sentiment of GGB which is also supported by the Public Advocate.

82 Whilst the GA Act, by virtue of the provisions of s 44, favours the appointment of a person in a close relationship to the represented person (be it a family member or other person), that person must satisfy the Tribunal that he or she can act in the best interests of the represented person. The evidence shows that the represented person's children care deeply for her and have strong views on what her best interests are. The Tribunal is not convinced, however, that these views are sufficiently separate from the intense conflict that exists, to represent objective judgments of the represented person's current and future care needs and how those needs should be met.

83 The Tribunal has therefore decided to appoint the Public Advocate as the represented person's guardian. The functions of the guardian shall be limited to those areas of decision-making which in the opinion of the

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Tribunal are required to meet the represented person's needs (s 4(2)(d)). The represented person requires decisions to be made about where and with whom she should live, what services she should receive if she remains living at home, decisions about her treatment and health care, and also what contact she should have with others and the extent of that contact. The latter function has been included in the guardian's authority because the conflict in the family has already caused difficulties in family members visiting the represented person.

84 The Tribunal has decided to review the order for guardianship in 12 months.

The need for an administrator

85 PRA and GRA describe the current management of the represented person's estate as follows; the represented person is in receipt of a pension from the Department of Veterans Affairs; she pays for all the property and utility expenses including rates and taxes, electricity and gas. PRA and GRA clean the house, undertake minor repairs and pay for food. The represented person entered into a lease agreement with PRA and GRA about four years ago which includes the levying of $120 a week for rent. PRA states that he keeps an account which shows that the represented person owes him thousands of dollars but that "I don't question how much money I put in. When you love somebody you don't keep a record of what you're putting in". (Page 103 of the transcript.) PRA says further that he had not made any money over the last five years and that "mostly it just goes back on the house". (Page 104 of the transcript.)

86 GRA states that on a day-to-day basis, both he and PRA check the represented person's bills after which they refer the accounts to her, GRA saying that "mum is still quite capable" and that she can still write a signature (page 100 of the transcript).

87 PRA submits that the current arrangement which includes the rental agreement should be allowed to continue, but that if the Tribunal should determine that an administrator be appointed, he would propose himself. GRA supports the appointment of PRA.

88 JKAA says that PRA has told him that GRA has been having the represented person sign cheques and that he has been writing over her signature because it is too faint. He alleges that PRA is a heavy gambler and that he vehemently opposes him being appointed as the represented person's administrator.

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89 GGB states that the family needs to know more about the rental agreement between the represented person and PRA and GRA. She says that PRA claims he has rented the represented person's property in return for some assistance he has given her. The represented person has told GGB that PRA has sub-let the property back to her and as a consequence she owes him money.

90 DHA states that he was approached by GGB, in late 2000 after the represented person had spoken with her about her future needs, and her wish was that he and GGB be her attorneys under an enduring power of attorney. DHA states that he contacted the represented person to confirm her wish to arrange an enduring power of attorney. She had said to him that she had not chosen JKAA because of his work commitments and she had not chosen PRA because she did not trust him. The represented person executed the enduring power of attorney on 11 December 2000 and her signature was witnessed by two medical practitioners.

91 DHA submits that as the represented person chose himself and GGB as attorneys, that wish of hers should be reflected in any administration order that the Tribunal might make.

92 PRA disputes the assertions of DHA. He submits that as the represented person chose GRA as her carer, she would not have chosen a different person to be her attorney. He alleges that DHA drafted the enduring power of attorney for the represented person to sign. He further states that the medical practitioners did not undertake a capacity test for the represented person prior to her signing the enduring power of attorney.

93 In the material before the Tribunal, there is a document that purports to be a revocation of the enduring power of attorney executed by the represented person on 11 December 2000. The document is dated 5 April 2005, and is signed by the represented person. It is not addressed to anyone and purports to revoke "… all enduring powers of attorney held by my present family members …". The represented person further states that "my two sons [PRA] and [GRA] who have resided with me at the same address over the past 30 years will become my new enduring powers of attorney. I wish you to acknowledge my decision".

94 GRA states that the represented person has not executed an enduring power of attorney subsequent to the one of 11 December 2000.

95 The Public Advocate submits that the letter of revocation was drafted by GRA and signed by the represented person. She has been in contact with the represented person's bank and has been advised that the bank will

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no longer accept the enduring power of attorney executed on 11 December 2000. It is the view of the Public Advocate that an administrator should be appointed for the represented person.

96 The Tribunal has found that the represented person has a mental disability and is no longer able to make reasonable judgments in respect of her estate (see: The represented person's capacity). The further question is whether she is in need of an administrator or whether there is some other means by which her estate can be managed in her best interests.

97 There is the enduring power of attorney executed by the represented person on 11 December 2000, the only one she has made. Set against this is the purported revocation of the instrument on 5 April 2005.

98 For all practical purposes the enduring power of attorney is not able to be used. The Public Advocate has been in contact with the represented person's bank and has been advised that the instrument will not be accepted by that institution as an authority to be used on her behalf. The Tribunal therefore finds that a legal vacuum exists in the decision-making for the represented person and that she is in need of an administrator pursuant to s 64(1)(b) of the GA Act.

99 The Tribunal is not satisfied that the informal arrangements currently in place to manage the represented person's estate are in her best interests. The Tribunal does not agree with GRA's view that the represented person remains capable of assessing whether her bills are properly incurred and whether they should be paid. The existing practice of the represented person signing cheques should not continue.

100 The Tribunal finds that the represented person is no longer able to decide whether the current arrangement of sharing household expenses is appropriate for her and this includes the conduct of the rental agreement which PRA says was entered into about three or four years ago. The Tribunal is concerned that the status of the represented person is that of a sub-lessee of the property which she owns and in which she lives. The Tribunal agrees with GGB that the rental agreement requires investigation.

101 The Tribunal finds that there is currently no less restrictive alternative to the making of an order for administration for the represented person (s 4(2)(c) of the GA Act).

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102 The final question then, is who the administrator should be. In this regard, the Tribunal accepts that when the represented person executed the enduring power of attorney in 2000, she was exercising a particular wish to have DHA and GGB take over the management of her estate should she no longer be able to do so. The Tribunal places less weight on the purported revocation in April 2005 given that it was made just prior to Dr Leckie's assessment that the represented person was no longer capable of executing an enduring power of attorney. For the same reason, the Tribunal does not accept that the represented person chose PRA and GRA to formally manage her estate at the time she made the purported revocation. In any case, it is the Tribunal's view that both PRA and GRA are in the position of a potential conflict of interest in deciding their ongoing financial interests against those of the now incapable represented person.

103 Both DHA and GGB are compatible with the represented person and the Tribunal is satisfied they will act in her best interests. There is an issue, however, of whether they will be able to perform the functions of administrators given the conflict that exists between them and PRA and GRA as carers of the represented person. To what degree the current caring arrangements remain in place is to be decided by the Public Advocate as the represented person's guardian and to that extent the Tribunal is satisfied that DHA and GGB can work with the Public Advocate. The matter of the family conflict remains relevant, however, to the ease with which DHA and GGB could carry out their duties. Despite this concern, the Tribunal appoints DHA and GGB as joint plenary administrators of the represented person because, on balance, it finds that they are suitable to act in that role and it is presently in the represented person's best interests to appoint family members rather than someone external to the family such as the Public Trustee.

104 The Tribunal revokes the enduring power of attorney executed by the represented person on 11 December 2000 pursuant to its authority under s 108(1)(a) of the GA Act. The Tribunal is of the view that there should be no confusion as to who carries the formal authority to manage the represented person's estate.

105 The Tribunal has decided to review the order for administration in 12 months.

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The application concerning the enduring power of attorney

106 During the hearing the Tribunal gave DHA and GGB leave to withdraw their application under s 106(1) of the GA Act.

I certify that this and the preceding [106] paragraphs comprise the reasons for decision of the State Administrative Tribunal.


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MR J MANSVELD, MEMBER