KK - [2024] WASAT 60 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   KK [2024] WASAT 60
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   7 JUNE 2024
DELIVERED          :   21 JUNE 2024
PUBLISHED           :   25 JUNE 2024
FILE NO/S:   GAA 1891 of 2024

KK
Represented Person
NN
Applicant

Catchwords:

Guardianship - Administration - Best interests of represented person - Traditional cultural family practices - Enduring power of attorney not a less restrictive option - Attorney not acting with reasonable diligence - Inaction of attorney - Independent calculation of contribution to household expenses - Alleged passive neglect - Family conflict - Unsuitability of family members for appointment - Direction to administrator - Short orders

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 43(1)(b), s 43(1)(c), s 44(1)(a), s 44(1)(b), s 44(1)(c), s 64, s 68(1), s 68(1)(d), s 68(3)(c), s 84, s 97, s 107(1)(a), s 110ZD

Result:

Public Trustee appointed administrator
Private Advocate appointed guardian

Category: B

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	In Person

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

FY [2019] WASAT 118

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard on 7 June 2024 (Hearing). An oral decision was delivered on 21 June 2024. The following reasons comprise those reasons for decision edited only to anonymise parties, include headings, references to relevant evidence and authorities, correct grammatical errors and infelicity of language, without variation to the substance thereof).

Introduction

KK is aged either 90 or 91 years old.[1] She was born in an Asian country and came to Australia in the 1960s with her husband. Her husband passed away in the 1980s and since then, she has lived with her eldest son TT in accordance with their cultural practices. KK was diagnosed with probable Alzheimer's dementia in March 2024.[2]
[1] There is a discrepancy in her identification documents that list her birthday as 1932 and 1933.
[2] Letter from Dr K, Specialist Physician and Geriatrician dated 22 March 2024.
KK has one son and four daughters who were all born in Australia:
(a)TT is the first child and only son. KK lives with TT and his wife, TW and their two daughters at their home (Property). KK signed an enduring power of attorney on 26 June 2010 appointing TT as her attorney and her youngest daughter AA as her substitute attorney if TT was unable to act (EPA);
(b)NN is the second child. She lives in a town which is approximately a six hour drive away from the Property. NN made the application to the Tribunal for the appointment of a guardian and an administrator (Application) due to her concerns about KK's changing needs and the broad disagreement between the siblings in relation to her care;
(c)HH is the third child and lives interstate. HH will usually visit once per year for an extended period and will stay at the Property to care for KK;
(d)OO is the fourth child and lives around 20 minutes from the Property. OO was instrumental in organising services for KK in late 2023 and is her nominee with My Aged Care. The Application stated that OO was having difficulty initiating medical treatment and services, and monitoring KK's nutrition and mobility; and
(e)AA is the fifth child and lives a few minutes from the Property. AA visits KK multiple times per week to assist with supervision and taking her to church and other activities.
There is significant conflict between the siblings, with TT, HH and AA sharing one view, and NN and OO sharing another. I observed open hostility between the siblings in the Hearing, particularly towards OO. While the two factions have different views about KK's care needs going forward, they generally agree on the following issues:
(a)they have noticed changes in KK, particularly in relation to her cognition, in the last six-eight months;
(b)KK's historic practice of withdrawing almost all of her money every few months to spend or gift frivolously cannot continue;
(c)the increased services, implemented predominantly by OO, have benefitted KK;
(d)KK requires a substitute decision-maker to manage her finances and make decisions about her personal matters;
(e)KK should continue to live with TT and TW at the Property;
(f)(to varying degrees) KK is socially isolated and would benefit from more social interaction outside of the Property; and
(g)KK's children were born in Australia and only speak English, so they are unable to converse with KK, save for HH who speaks KK's first language at a conversational level. TW is the only person in the family who can converse easily and fluently with KK.

The Application to the Tribunal

In submissions filed with the Tribunal on 30 May 2024, TT, HH and AA expressed the following concerns:
(a)KK is 'vulnerable to be exploited';[3]
(b)the necessity to avoid KK's finances being 'absorbed by other parties';[4]
(c)NN and OO 'disagree with [KK's] spending of her finances as she freely wishes. Therefore, we know, through previous family discussions, that with [NN's Application] she would have the authority to enforce restrictions of mum's financial freedom. Our mother has always stated that she was not interested in saving her money but instead wanted to spend it';[5] and
(d)TT, HH and AA 'feel that if [NN] is granted Guardianship and Administrator [sic], then she and/or [OO] will severely restrict [KK's] freedom to use her finances as she wishes'.[6]
[3] TT's submissions dated 30 May 2024 filed on behalf of TT, HH and AA (TT Submissions), page 1.
[4] TT Submissions, page 3.
[5] TT Submissions, page 1.
[6] TT Submissions, page 1.
TT, HH and AA sought the Tribunal's assistance to 'ensure that KK's finances and health care are used to meet her own needs and no parties are able to exploit her for their own personal gain, control and unnecessary stress/anxiety'.[7]
[7] TT Submissions, page 1.
TT mentioned KK's practice of 'gifting her pension away over the years, contributing to payments, as well as her own personal use, which is her right to do so'.[8] In terms of the Application having been made to the Tribunal, TT was concerned that KK's level of gifting may impact on her pension, in that it may be reduced or cancelled. TT was also concerned that her gifting 'would also jeopardise her eligibility for [the] Homecare package and other discounted health services'.[9] KK has been approved for a Level 4 Home Care Package (Level 4 HCP) with the first services likely to commence in late July 2024.
[8] Screenshot from family text message dated 8 May 2024.
[9] Screenshot from family text message dated 8 May 2024.
The Application raised concerns about KK suffering from passive neglect and that alterations should be made to her ensuite to reduce the risk of falls. In April 2023, KK sustained two vertebral fractures, to thoracic 8 and 12, when she fell while at home alone (Fall).[10] Apparently, KK told no one at the time, but later complained about pain in her back. In 2018, KK also had a fall and fractured her wrist. Again, she told no one at the time and then later complained of pain. KK has been restricted from going upstairs at the Property to attempt to protect her from the risk of further falls.[11]
[10] OO's submissions filed on 31 May 2024 (OO Submissions), page 3.
[11] Noted in ACAT assessment prepared following face-to-face meeting of 11 January 2024 (ACAT Assessment).
The Hearing occurred on 7 June 2024. Attending in person were KK, TT, TW, AA, OO, OH who is OO's husband, ME who is OOs' advocate, and an interpreter in KK's first language. As the Tribunal had referred the matter to the Office of the Public Advocate (Public Advocate) for investigation and report,[12] the senior investigator advocate (Investigator) from the Public Advocate attended the Hearing by telephone, as did NN and HH.
[12] GA Act, s 97.

KK's assets

TT explained that when KK's husband died in the 1980s, his last will and testament (Will) left all the family's assets to TT as the eldest boy. When his sisters contested the Will, through his own volition to resolve the conflict, TT decided to sell the family property and divide the money between his mother and sisters.
TT gave evidence that he decided to give $100,000 to KK, and that she gifted it back to him. There were no doubts about KK having the capacity to make such a gift at this time. OO says that each sister received between $150,000 and $190,000 each, and her belief was that KK received $250,000.[13] Her understanding was that KK's inheritance was being managed by TT for KK's benefit.[14]
[13] OO Submissions, pages 1-2.
[14] OO Submissions, page 2.
TT says that looking after his mother is a cultural tradition as the oldest child and only son, which he is happy to do. He says that the gift from his mother of her inheritance did not contribute to his decision to look after her. TT says that he pays for everything for his mother, such as her room and board, medical expenses and clothes. When he and TW bought the Property, he ensured there was a room for KK with an ensuite.
TT said that there is no obligation for KK to pay rent or to contribute to household expenses, as he is happy to pay for everything.

KK's financial management

Up until December 2023, AA would take KK to the bank every few months where KK would, using her passbook, withdraw as much cash as possible, usually between $3,000 to $5,000, leaving around $500 to $1,000 in the account. When KK became more physically frail in 2023, particularly following the Fall, AA began speaking to the teller on KK's behalf to withdraw the cash, as AA is a signatory on KK's bank account.
AA would ask KK what she spent her money on, and KK would say, 'it's my money, I can do what I want with it. Why keep the money when I'm gone?' From late 2023, AA became concerned about KK taking such large amounts of cash out of the bank and she discussed her concerns with TT.
TT agreed that KK did not see the benefit of keeping her money and she wanted to spend it. TT noted that in hindsight, it would have been better to take the money and invest it for her. KK is an independent person, so TT and AA did not want to impose their will upon on her. However, when they noticed a deterioration in KK, they decided to take action to restrict her spending.
The balance of her bank account was $628 on 7 December 2023. In 2024, TT and AA have only allowed KK to make one withdrawal of $1,000 in February.[15] At the date of the Hearing, KK's bank account, her only asset, held around $9,500.
[15] Photograph of passbook shows a withdrawal of $1,000 on 13 February 2024, leaving a balance of $3,187.
TT and AA appeared to be the only siblings that were aware of how KK would spend her money. She would spend her cash on restaurants, clothing, incidental items and she would gift cash for events like Lunar New Year. KK would insist on paying when the family went out to lunch, which would cost between $600 and $700.
TT explained that KK would contribute to the household expenses and would give him large amounts of money when she would make one of her withdrawals, sometimes gifting him $1,000 at a time. TT says he would often tell her, 'you don't need to do this, I'm working, I don't need the money'. TT said that it made her feel better to contribute to the expenses, because she's been living with him since the late 1980s. As mentioned earlier, TT estimated that KK would gift more than $10,000 per year to family members.
AA commented to the Investigator that her view was that NN and OO were not happy about KK contributing to the Property in appreciation of TT paying for everything.[16] AA said NN and OO thought that KK's money should not be taken from her.[17]
[16] Report prepared by investigator from the Public Advocate dated 30 May 2024 (OPA Report), page 5.
[17] OPA Report, page 5.
NN gave evidence that she was concerned about KK's spending and gifting. NN was grateful that the family had acknowledged that this practice cannot continue, and that they had realised that 'because Mum is changing, we have to change too, with the behaviours of how we attend to Mum'.

Enduring power of attorney

TT and AA explained that in early 2024, they discussed how it was now necessary to monitor how KK was spending her money. TT gave evidence at the Hearing that he started using the EPA around this time. Because of the increased expenses with KK receiving services from Meals on Wheels and the Cultural Centre, TT decided to set up a new bank account for KK so he could arrange direct debits to pay these expenses. He tried to use the EPA, but as he only had a photocopy of the EPA, the bank would not accept it.
The original EPA was held in safe custody by the solicitor. TT explained that he intended to go to the solicitor's office on the morning of the Hearing to collect the original EPA, but there was not enough time.
TT told the Investigator that he had tried to set up internet banking for KK, but the bank required that KK have identification. TT could not find KK's birth certificate and her passport had expired. TT and AA intend to explore other ways of obtaining identification for KK to enable the bank to provide internet banking.[18] TT said that AA had been in discussions with the bank since April, as while they were unable to set up internet banking with the passbook, they could arrange a direct debit with the passbook account.[19] TT gave evidence in the Hearing that he would 'like to set that up'.
[18] OPA Report, page 6.
[19] Text messages attached to TT's Submissions. KK's monthly HBF payments were deducted by direct debit from her passbook account, which was likely set up by KK herself some time ago.
OO says that she was not aware that the EPA existed when she set up the services in late 2023. She thought it was necessary to pay the expenses upfront herself, and then be reimbursed by the siblings.[20] It was agreed that the cost of the services would be shared five ways because KK historically had not wanted to attend the Cultural Centre or anything like that because she did not want to pay for it.[21]
[20] OO Submissions, page 2.
[21] TT Submissions, page 2; oral evidence from HH at Hearing.
OO says that at an aged care assessment team (ACAT) meeting in late 2023, when asked if KK had an enduring power of attorney, TT said she did not. TW later disclosed that there was an EPA[22] which meant that there was a way to arrange for KK to pay for the services. OO stopped paying for the services at that time and TT says that he has paid since then.
[22] At ACAT meeting of 11 January 2024.
While OO was initially responsible for payment to the Cultural Centre, she advised the Cultural Centre that from 25 March 2024, AA would pay the invoices.[23] AA asked the Cultural Centre to send her a direct debit form, which they did, but AA did not complete it. On 24 April 2024, AA asked the Cultural Centre to email the invoices to AA 'as she was still waiting for the bank to organise the account of [KK] so the fees could be deducted from [KK's] account'.[24]
[23] Service provider report prepared by the Cultural Centre dated 19 April 2024 (Cultural Centre SPR), page 3.
[24] Cultural Centre SPR, page 3.

Engagement of services and new general practitioner

Following the Fall in April 2023 and the referral to My Aged Care in May 2023, OO became KK's My Aged Care representative on 4 June 2023. OO was concerned about the passive neglect of her mother.
OO says that when she was trying to engage formal support services for KK, she had been met with obstruction, resistance, continued barriers and difficulties within TT's household, and a lack of help with establishing the services that would benefit KK.[25] OO arranged for KK to start ongoing in-home respite twice per week provided by the Cultural Centre in addition to a social support group at the premises of the Cultural Centre.[26]
[25] OO Submissions, page 4.
[26] The services from the Cultural Centre started in November 2023 as per TT Submissions, page 2 and Cultural centre SPR, page 4.
The ACAT Assessment identified a corn on KK's right third toe, which could ulcerate if left unattended.[27] OO was concerned that no one within the household was aware that KK's feet had been neglected, as no one had cut her toenails. OO followed up with all the referrals from the ACAT assessor, including a speech therapist, occupational therapist and a physiotherapist to engage in a falls risk program.
[27] Face to face meeting occurred on 11 January 2024.
OO was concerned with KK's incessant coughing and gagging to the point of choking when swallowing her food. OO says that KK's condition was dismissed as old age and that it was normal. OO reported that at the end of February 2024, KK was diagnosed with a dilated thoracic oesophagus and gastro oesophageal reflux disease (GORD). OO did not know how long KK had been suffering with this condition.[28]
[28] OO Submissions, page 3.
TT had been KK's general practitioner for the previous 30 years.[29] In February 2023, while discussing KK's chronic kidney disease, TT stated that he was considering whether KK needed to see a renal specialist, and that he was also concerned about her skin breakdown and venous ulcers. TT stated that KK may need an independent general practitioner as TT was concerned that he may not be impartial.[30] OO requested a range of medical investigations for KK with her new general practitioner, Dr W, including a consultation with a vascular surgeon that occurred in January 2024.[31]
[29] OO Submissions, page 1. Page 2 of the medical report of Dr W dated 10 May 2024 states that KK 'has been under the care of her son [TT] in the past 20 years'.
[30] Screenshot from family text message dated 7 February 2023.
[31] Screenshot from family text message dated 18 January 2024.
OO engaged a speech therapist in April 2024 to address KK's poor eating style and habit of coughing. The speech therapist recommended that KK go on a mince and moist diet due to her GORD condition and KK started receiving meals from Meals on Wheels.[32] TW confirmed in the Hearing that KK is enjoying the meals, which TW can divide into two or three meals because KK does not eat much. Because KK is enjoying the food, which is appropriate and soft enough for her to eat easily, TW would like to increase the number of meals provided but she does not feel able to make that decision or request due to the politics in the family as she is 'just the daughter-in-law'.
[32] OO Submissions, page 5.
OO mentioned that there were problems with communication between the siblings and there was not a unified or consistent effort to make sure that KK was receiving all the services that she should. OO said that AA took KK to a geriatrician appointment through a public Hospital but there was no communication between the siblings following that appointment about services offered by the Hospital publicly that may benefit KK. OO's understanding was that KK may have been able to attend incontinence, mobility or psychology clinics, but OO did not know whether any of those had been offered to her. All OO knew was that KK went to the gerontology unit, a geriatrician assessed her, and she went home.
OO also raised concerns about the cancellation of services from the Cultural Centre that she had arranged. TW explained that because KK did not want to be alone with the respite workers from the Cultural Centre, initially it was necessary for TW to stay home. Now that KK is comfortable with the respite workers, TW is able to arrange for them to come at times when she will be out, to ensure that KK is properly supervised at the Property.

AA raised the issue that KK did not like the male respite workers. AA advised the Cultural Centre of this and there were no services for three weeks until female respite workers could be sourced. TW agrees that KK enjoys the social visits from the female respite workers that she is now receiving at the Property.

Suggested modifications to bathroom

OO stated that in November 2023, the occupational therapist raised the issue of a falls risk hazard in KK's ensuite shower and recommended that KK's ensuite be modified to remove the hazards.[33] TW explained that the quote received for the modifications was between $11,000 and $14,000. TW said that her and TT could not afford the cost, which was not going to be divided five ways between the siblings, so the modifications would not be done.
[33] OO Submissions, page 4.
A 'U-shaped' handrail was also recommended by the occupational therapist to assist with KK's safety in the shower as an alternative for her to hold onto rather than the 'thin glass shower side and swivel door'.[34] NN's partner has purchased the U-shaped handrail and offered to install it in August when he next visits the Property. In the meantime, AA, TW and TW's daughters supervise KK in the bathroom.
[34] OO Submissions, page 4.
AA comes to the Property a couple of times per week, and along with TW and her daughters, help KK to get into the shower and hold her. KK does not want anyone to shower her, so AA, TW and TW's daughters supervise and assist. AA noted that even if the bathroom was modified, and with the rails currently there and the stool in the shower, KK would still need assistance in the shower as it was not possible just to let her go into the bathroom by herself.

Evidence

I have read and had regard to the following documents:
(a)enduring power of attorney dated 26 June 2010 appointing TT as attorney and AA as substitute attorney;
(b)ACAT assessment prepared following a face-to-face meeting of 11 January 2024;
(c)application filed by NN on 16 April 2024;
(d)service provider report prepared by the Cultural Centre dated 19 April 2024;
(e)medical report dated 10 May 2024 by Dr W;
(f)medical report dated 13 May 2024 by Dr K, Specialist Physician and Geriatrician, and clinic letter dated 22 March 2024;
(g)submissions filed by TT on behalf of himself, HH and AA dated 30 May 2024 including KK's statement of assets, liabilities, income and expenses and a budget from 1 January to 10 May 2024 (Budget);
(h)submissions filed by OO dated 31 May 2024;
(i)report from the investigator advocate from the Office of the Public Advocate dated 31 May 2024;
(j)withdrawal request from NN filed 4 June 2024;[35] and
(k)further submissions from OO in respect of the request to withdraw.
[35] I did not allow the matter to be withdrawn as I did not consider a withdrawal to be in KK's best interests.

I summarised the medical evidence and reports during the Hearing. I have also had regard to the oral evidence given during the hearing by KK, TT, TW, OO, OH, NN, HH and AA and the submissions from the Investigator.
I took all of that evidence into account when making this decision.

Principles to be observed and legislation

To appoint an administrator, I must be satisfied that KK is currently unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate and that she is in need of an administrator of her estate.[36]
[36] GA Act, s 64.
The term 'mental disability' is defined in s 3 of the Guardianship and Administration Act1990 (WA) (GA Act). The definition describes certain disabilities such as an intellectual disability, a psychiatric condition, dementia and an acquired brain injury. The definition also includes the ordinary meaning of the term 'mental disability' which 'contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal'.[37]
[37] FY [2019] WASAT 118 (FY) at [27].
To appoint a guardian for KK, I must be satisfied that one or more of the following criteria apply to her:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.[38]
[38] GA Act, s 43(1)(b).
I also need to be satisfied that there is a need for a guardian.[39]
[39] GA Act, s 43(1)(c).
The primary concern of the Tribunal is the best interests of the proposed represented person.[40] Every person is presumed to be capable of looking after their own health and safety, making reasonable judgments in respect of matters relating to their person, managing their own affairs and making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal.[41]
[40] GA Act, s 4(2).
[41] GA Act, s 4(3).
When considering any matter, the Tribunal is required, as far as possible, to ask about the views and wishes of the person concerned.[42]
[42] GA Act, s 4(7).
Orders should not be made if KK's needs could, in the opinion of the Tribunal, be met by other means less restrictive of her freedom of decision and action.[43] Finally, any order appointing an administrator or a guardian should be in terms that impose the least restrictions possible on KK's freedom of decision and action.[44]
[43] GA Act, s 4(4).
[44] GA Act, s 4(6).

KK's views and wishes

I asked KK what she spent her money on, and she said that she would just go and buy things. She said she did not buy presents for people and that she rarely gave money to people as gifts. She did not know how much money she had in the bank or the name of her bank, but she knew that it was close to the Property.
When I asked her who she wanted to help her with her money, if she needed help with her money, she said she did not need help and that she could do it. When I asked her if she had to choose someone, she said 'definitely myself would be better'.
When the Investigator met KK in the presence of an interpreter, KK told the investigator that she trusts TT and she would prefer him to be her decision-maker. She also told the Investigator that she had one son and two daughters.[45]
[45] The investigator met with KK on 29 May 2024 at the Property. An interpreter, TT, TW, AA and HH
TT's view is that on the spectrum of dementia, KK is 'on the mild side', and she is still capable of making her desires and wishes known. TW agrees that KK knows what she wants and what she wants to do.

Does KK have a mental disability?

The evidence before the Tribunal is that KK has been diagnosed with Alzheimer's dementia, which is a progressive condition. Dr W, her new general practitioner, noted in the medical report he prepared that he had seen KK eight times in the five months she had been his patient. Dr W stated that KK is usually accompanied by OO or AA who act as substitute decision-makers, giving informed consent to any proposed treatment.[46]
[46] Medical report, Dr W dated 10 May 2024.
The medical report advised that KK had a mini mental state exam (MMSE) score of 16/30. Dr W says that he is unsure whether KK is able to make simple financial decisions, but his view is that KK is incapable of making complex financial decisions and attending to legal matters. Dr W states that KK cannot make decisions about accommodation, services and medical treatment. The report concluded that KK was incapable of voting.
In the letter dated 22 March 2024, Dr K stated that KK's MMSE with the interpreter present was 11/30, which was a decline from when it was completed with Dr W. Dr K noted that KK most likely has Alzheimer's dementia. Dr K noted that KK's MMSE score was worse than he had expected even with her low education.[47]
[47] Letter dated 22 March 2024.
I am persuaded by the clear and cogent evidence before me, and I find that KK has a mental disability within the definition of the GA Act.

Does the mental disability cause KK to be unable to make reasonable judgments in respect of matters relating to all or any part of her estate?

KK has not earned an income and she was financially supported by her husband and then her son for the last 30 or so years. The evidence shows that KK has not been taking reasonable steps to safeguard her own financial interests, although she has always spent her money frivolously in this way. When she had capacity, she was able to decide to spend her money in that way.
However, her care needs have now increased, and further support is needed for her at the Property, including the delivery of special meals that she can eat. I find that KK is unable to make reasonable decisions in relation to all of her estate, specifically about how her funds should be used to provide for her increased support needs. I am therefore satisfied that the mental disability has caused KK to be unable to make reasonable judgments about her estate.
Accordingly, I am satisfied that the presumption of capacity is rebutted by the diagnosis of Alzheimer's dementia and KK is therefore a person for whom I can appoint an administrator.

Is KK unable to look after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, or is she in need of oversight care or control in the interests of her own health and safety?

In terms of guardianship and the ability to make personal decisions, I find that while KK is able to clearly articulate her wishes, which she has done before the Tribunal, and she wants to manage her own money and make her own decisions. However, I am concerned that KK may be unable to make reasonable judgments about the sort of things that are required to keep her safe, such as engaging services and making appointments to see her medical specialists.
I am satisfied that KK is unable to look after her own health and safety. I accept the evidence set out in the medical report from Dr W. KK has diagnoses of GORD, Alzheimer's Disease, Sick Sinus Syndrome, a Permanent Pacemaker, Macular Degeneration, Glaucoma, Osteoporosis, Chronic Kidney Disease (Stage 3) and Atrial Fibrillation.[48] I am not satisfied that she is able to manage those medical conditions herself. KK requires support from her family to make and attend medical appointments and implement recommendations. The medical report from Dr W states that AA and OO are already giving informed consent to medical treatment procedures.
[48] These conditions are set out in various documents, including the ACAT Assessment.
The ACAT assessment prepared following a face-to-face meeting on 11 January 2024 states that due to KK's:[49]
… memory decline, social isolation and increased care needs, approval has been given for Home Care Package 4 to provide support with personal care, continence management, nutritional monitoring, domestic assistance, in-home respite, social support, and welfare monitoring. Following a discussion, approval is given for Residential Respite Care and Permanent Residential Care if her care needs can no longer be met at home.
[49] ACAT Assessment, page 2.
I am therefore satisfied that the presumption of capacity in respect of her ability to make reasonable judgments about her personal matters is rebutted by the evidence. Accordingly, KK is a person for whom I can appoint a guardian.

Is KK in need of an administrator or a guardian?

Having regard to the evidence I have just referred to, there is no doubt that KK requires assistance to deal with her estate and to make decisions about her personal matters. The question is whether she needs an administrator and a guardian, or whether there is a less restrictive option available.

Is there a need for a guardian?

All of the siblings agree that there is a need for support services and that the services that have now been engaged are appropriate for KK. It appears that OO has arranged all the services, which she was able to do informally. However, there are concerns about how the services have been implemented at the Property and a lack of communication in respect of same. It is clear that there have been difficulties with the interface between OO doing the legwork in organising the services and how those services have been applied at the Property.
AA described the fact that the siblings held a number of family meetings, particularly in mid-April and then again on 29 May, and that the understanding of TT, HH and AA was that all matters had been agreed and dealt with. However, OO continued to have concerns, and felt unable to raise those issues directly with her siblings. It is clear that the siblings are unable to communicate with each other and that each faction has difficulty communicating with the other.
I am satisfied, and I find, that while the family have been able to informally arrange a number of services for KK, with the Level 4 HCP expected to be available in late July, which will provide further services, it will be very difficult for the family to communicate together about what KK needs, what will suit the family, and which, if any, of the current services should be reduced when the new services arrive.
I am therefore satisfied that there is a need for a guardian appointed by the Tribunal to be able to make decisions about the services, to engage the specific service providers and to hear the concerns of all family members in relation to the provision of services to KK.

Is there a need for an administrator?

An administration order 'shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means'.[50]
[50] GA Act, s 4(4).
KK signed the EPA in 2010 appointing TT as her attorney and AA as her substitute attorney if TT was unable to act.[51] The EPA is less restrictive as it was prepared at a time when KK had capacity and she was able to decide who she wanted to make decisions for her. The question for the Tribunal is whether the EPA is a less restrictive way for decisions to be made in KK's best interests.
[51] The EPA states that AA will be KK's attorney in substitution of TT 'in the event of death or legal incapacity of [TT]'.
I have formed the view that the best interests of KK requires that an independent substitute decision-maker be appointed for her in relation to her financial estate. I find that it is not in KK's best interests for her financial estate to be managed by TT under the EPA as I am not satisfied that TT has acted diligently to protect his mother's interests.[52]
[52] GA Act, s 107(1)(a) states that 'the donee of an enduring power of attorney shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure'.
The EPA is expressed to continue in force notwithstanding KK's subsequent legal incapacity. It was signed in 2010 but it has not yet been used as the original document is still in the possession of the solicitor. While TT and AA started discussing KK's financial management in late 2023/early 2024 and the last of the large withdrawals occurred in December 2023, the EPA has still not been collected from the solicitor's office and no steps have been taken to begin direct debits for the payment of services or any other expenses.
Although TT has expressed to the Tribunal and the Investigator that he wants to start the direct debits, arrange internet banking and obtain identification for his mother, he does not appear to have done anything other than to express that this is what he would like to do or intends to do. Even with the Tribunal hearing scheduled for June, and the family being aware of the Application since April, TT has still not collected the original EPA from the solicitor's office.
I am also concerned that the family members did not know the EPA existed in circumstances where the payment of KK's ongoing expenses was a live issue. NN and OO were unaware that the EPA existed until TW told OO in January 2024 when the ACAT assessment was occurring.
OO had arranged to pay for the services herself, with an agreement to be reimbursed by her siblings, due to her understanding that there was no other way for the expenses to be paid. When OO became aware of the EPA, she stopped paying for the services. TT says that he started paying for the services from then onwards. NN is continuing to pay for KK's mobile telephone and all siblings agree that NN is entitled to reimbursement of $590.[53]
[53] Which is around 18 months' worth of monthly mobile phone bills.
There is also a conflict of interest if TT, as enduring attorney, was to determine KK's contribution to the expenses of the Property. TT says that he pays for all expenses and that he is happy to continue to do that, but that is not consistent with the Budget filed with the Tribunal, which sets out that KK would be making a contribution to the household expenses.[54]
[54] The Budget sets out that KK would contribute $200 per month to household expenses, as well as a small contribution to groceries.
I therefore find that KK is in need of an administrator for the following reasons:
(a)an administrator is required to receive KK's pension and pay the expenses necessary for her care and benefit; and
(b)an administrator is required to determine whether or not it is appropriate or reasonable, on the basis of her financial history, that KK contribute financially to the household expenses and any modifications to the Property to increase the safety for KK. Regardless of the decision about whether or not she will contribute, it is imperative that such an assessment be made by an independent person.

Conclusion on need

I am therefore satisfied on the evidence before me that there is no less restrictive means available for decisions to be made in KK's best interests other than by the appointment of both an administrator and guardian because the alternative has been tried, which is the informal assistance of family members.
In respect of financial matters, KK now requires someone with the legal authority to:
(a)obtain identification for her;
(b)calculate her expenses and annual budget; and
(c)arrange ongoing payments to service providers, medical professionals and her other necessary expenses.
In relation to personal matters, KK needs someone to make decisions for her in relation to:
(a)medical treatment;
(b)the services she will have access to; and
(c)accommodation if her care needs were to change.
In the circumstances, I am satisfied that there is no less restrictive means available for decisions to be made in KK's best interest other than via the appointment of a plenary administrator and a limited guardian. I will therefore revoke the EPA.

Who to appoint?

When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of KK, is suitable to act as the administrator of her estate,[55] and will be able to perform the functions vested in them.[56]
[55] GA Act, s 68(1).
[56] GA Act, s 68(3)(c).
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of KK, is suitable to act as the guardian,[57] is not in a position where their interests' conflict or may conflict with KK's interests,[58] and that the proposed guardian will be able to perform functions vested in them.[59]
[57] GA Act, s 44(1)(a).
[58] GA Act, s 44(1)(c).
[59] GA Act, s 44(1)(b).
The Tribunal also needs to take into account the desirability of preserving the existing relationships within KK's family. KK's estate is not complex, but the interplay between the services she receives and her finances are complex, as are the family dynamics, which were described during the Hearing as dysfunctional.

It is clear from the documents and the oral evidence given in the hearing, that KK's children love her very much and want the best for her. They disagree about what is best for her and the two factions are unable to communicate effectively with each other, and with her, which causes significant issues when the most highly motivated person in terms of arranging services, OO, is unable to communicate effectively with TT and TW, who accommodate KK.

Administration

TT and AA have proposed themselves for consideration as KK's administrator. NN originally proposed herself for consideration as administrator, but she then formed the view that an independent appointment would be best.
I find that TT and AA are over the age of 18 years and have consented to act as administrator. However, I am not satisfied TT or AA are suitable to act as the administrator of KK's estate.[60]
[60] GA Act, s 68(1)(d).
As set out above, TT was appointed as attorney and AA as the substitute enduring attorney. They have been aware of the existence of the EPA since 2010 when they accepted the appointment, yet they have not taken any proactive steps to manage her estate, save for restricting her ability to withdraw large amounts of cash from the beginning of 2024. The evidence from the Cultural Centre is that AA was in contact with them in around March 2024 in respect of arranging for payment of services by direct debit but was unable to open a new bank account for KK.[61]
[61] Cultural Centre SPR, page 3.
TT and AA have not collected the original EPA from the solicitor in order to arrange to open a new bank account, set up direct debits or arrange internet banking.[62] TT and AA have not taken any steps in order to obtain identification for KK. TT advised that he may enquire with the Department of Transport or the Registry of Births Deaths and Marriages, but as at the date of the Hearing, the matter had not progressed.
[62] Text message between OO and AA of 8 February 2024 discussed obtaining the original EPA from the solicitor.
I find that TT and AA are not suitable to act as administrator due to their inaction in relation to progressing the matters with KK's bank, the payment of her expenses by direct debit and arranging her identification.
The administrator will need to determine what contribution KK should make, if any, to the household expenses of the Property, including any alterations to the bathroom. A conflict of interest therefore exists for TT if making these types of decisions.
TW explained that they cannot afford to pay the $11,000 to $14,000 for the proposed modifications to the bathroom, which is why the suggested modifications will not be completed. KK has her own funds, currently around $9,500, so it is necessary for someone independent to consider whether it is appropriate that KK contribute to the cost of the modifications.
Due to the strong alliance between AA and TT, I find that AA would be unable to objectively determine the contribution KK should make, if any, to the household expenses of the Property and any modifications to the Property to increase the safety for KK.
TT has also personally benefited from accepting large cash gifts from KK in circumstances where, on his own evidence, he did not need to accept money from her, and she was not required to give it to him. TT estimates that KK would gift over $10,000 per year to family. While there is no evidence of financial abuse in this regard, and TT confirmed in the Hearing that he would no longer accept money from his mother, I find that TT has not acted protectively towards his mother's finances, which is a further reason why TT is not suitable to be appointed as the administrator.
I therefore find that the only option open to the Tribunal is to appoint the Public Trustee as KK's plenary administrator as I am not satisfied that TT or AA are suitable to be appointed as the administrator as I find that they are not able to perform the functions proposed to be vested in the administrator.

Guardianship

TT and AA have proposed themselves as KK's guardian. NN originally proposed herself, but then stated her view that an independent appointment would be best. I find that TT and AA are over the age of 18 years and have consented to act as guardians. While TT and AA are devoted to their mother and have her best interests at heart, for the reasons set out below, I am not satisfied that TT or AA are suitable to act as KK's guardians.[63]
[63] GA Act, s 44(1)(c).
Dr K stated that he was:
concerned about both her physical and cognitive frailty as any potential insult such as [a] fall, or fracture may necessitate increased care needs. My main concern is whether this would be adequately addressed by her family and whether they regularly encourage her mobility, mitigating falls risk.[64]
[64] Letter from Dr K dated 22 March 2024.
I am not satisfied on the evidence before me that either of TT or AA have prioritised modifying the bathroom to ensure that it is safe for KK. AA explained that she would be involved in supervising KK while in the shower, but there does not appear to be any concrete plan around investigating any further modifications that have been recommended, other than the installation of the U-shaped handrail in August, which is still two months away.
The Tribunal is required to consider the desirability of preserving the existing relationships within the family, and I find that appointing TT and/or AA to be the Guardian will cause further mistrust and disruption in the relationship between the siblings. I find, on the basis of the oral evidence given in the Hearing and the hostility I observed, that the division between TT, HH and AA on the one hand, and NN and OO on the other, means that not all family members feel that their views are heard and taken into account.
Further services can, should and will be implemented for KK in the very near future. I am not satisfied, if appointed as guardian/s, that TT and AA will involve OO in those conversations or sufficiently take her view into account, when she is clearly the most highly motivated to ensure KK's access to every available service to protect her safety, wellbeing, nutrition and social access.
I am therefore not satisfied that TT or AA, either acting jointly or individually, are suitable to act as KK's guardians due to the ongoing family conflict and the lack of observable action taken in relation to the very real and serious safety concerns present in the Property. In accordance with s 44(2)(d) of the GA Act, I am not satisfied that TT or AA are able to fulfil the functions necessary to be vested in KK's guardian.
The Tribunal can only appoint the Public Advocate if there is no one else willing or suitable to be appointed as guardian. I am satisfied that the only option open to the Tribunal is to appoint the Public Advocate as KK's limited guardian.

Functions and powers

Administration

I am satisfied that it is appropriate that the administration order be a plenary order, which will allow the administrator to deal with all aspects of KK's estate, such as obtaining identification for her, redirecting the payment of her expenses including the mobile telephone and services, dealing with the bank, Centrelink and calculating what contribution she should make to the household expenses and modifications to the Property, if any.
I will include a gifting authority of $2,000 per annum to allow the administrator to buy gifts on behalf of KK. Her children have commented that she likes to make gifts, particularly around Lunar New Year, to her grandchildren.

Guardianship

I am satisfied that it is appropriate that the guardianship order be limited and include the following functions:
(a)services. The Level 4 HCP is expected to commence by late July, which means that more services will be available. Decisions will need to be made about which services and providers to engage through this package, which of the current paid services will continue and which will be cancelled; and
(b)accommodation. While it is likely that this function may not be utilised in the next 12 months, I observe that if the delegated guardian on behalf of the Public Advocate (Delegated Guardian) determined that it was unsafe for KK to continue to live at the Property, for example, if the bathroom was not safe, or if KK had another fracture or insult as foreshadowed by Dr K, the Delegated Guardian would require the authority to decide whether or not it is appropriate and in KK's best interests that she move to alternate accommodation.
I find that the medical treatment function is not necessary with the hierarchy of alternate medical decision-makers set out in s 110ZD of the GA Act, although I will include an authorisation to allow the Delegated Guardian to obtain medical and other reports from any treating health practitioner.

How long should the order run for before it must be reviewed?

When making orders, the Tribunal is required to fix a period for the review of the order.[65] I will make these orders reviewable in one year from today, as this will provide enough time for:
(a)the Delegated Guardian to consent to new services through the Level 4 HCP, review whether the current services are still needed and ensure all of KK's children have the opportunity to provide input about her services; and
(b)the administrator to obtain identification, review KK's expenses, prepare a reasonable budget and determine what contribution she should make to the Property.
[65] GA Act, s 84.
When the orders are reviewed, the Tribunal can then examine whether there has been sufficient resolution of the current issues which currently preclude the appointment of any of KK's children. I recognise that this is a relatively recent diagnosis and that this is a transitional period for the family, so I am hopeful that with 12 months of independent oversight in relation to finances and personal decisions, when the orders are reviewed, a family appointment can be considered.

Orders

The Tribunal declares that the represented person, [KK] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.

The Tribunal notes:
(g)The represented person's birthdate is recorded as [date and month] 1932 on her Australian Naturalisation Certificate (ANC) prepared in 1969.
(h)Her birthdate is recorded as [dated and month] 1933 with Government departments such as Medicare and Centrelink.
(i)Her Australian passport expired seven years ago.
(j)The discrepancy in the birthdate between the ANC and the records held by Medicare and Centrelink have meant that the represented person does not have any current identification which has caused issues with identifying her in relation to, including but not limited to, banking and setting up a myGov account.

The Tribunal orders:
Administration
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $2,000 per annum on gifts on behalf of the represented person.
3.The enduring power of attorney dated 26 June 2010 by which the represented person appointed [TT] to be her attorney, is revoked.
4.The administrator is authorised to reimburse [NN] $590 in respect of the represented person's mobile telephone.
5.The administrator is directed to obtain photographic identification for the represented person.
6.The Public Trustee is to be provided with copies of all documents filed in the matter.
7.The administration order is to be reviewed by 21 June 2025.

Guardianship
8.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live; and
(c)to determine the services to which the represented person should have access.

9.The Office of the Public Advocate is authorised to give and receive information and reports from any treating health professional of the represented person.
10.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
11.The guardianship order is to be reviewed by 21 June 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
25 JUNE 2024

(video call) were present.