KYL - [2021] WASAT 51

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   KYL [2021] WASAT 51
MEMBER:   DR E MARILLIER, MEMBER
HEARD:   22 DECEMBER 2020 AND 9 MARCH 2021
DELIVERED          :   23 MARCH 2021
PUBLISHED           :   21 APRIL 2021
FILE NO/S:   GAA 4089 of 2020
GAA 4183 of 2020
KYL
Represented Person
KH
Applicant

Catchwords:

Guardianship and Administration - Less restrictive alternative - Existing supportive relationships - Validity of enduring power of attorney and enduring power of guardianship

Legislation:

Guardianship and Administration Act 1990 (WA) s 4(2), s 4(3), s 4(4), s 4(7), s 40, s 65, s 66, s 108, s 109(1)(c), s 110N

Result:

The administration and guardianship application is dismissed
The application to revoke an enduring power of guardianship is dismissed

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	Ms Maggie Shipp

Solicitors:

Represented Person	:	N/A
Applicant	:	Cullen Macleod Lawyers

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard on 22 December 2020 and 9 March 2021 and decision delivered on 23 March 2021. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and set out)

Background

KYL is an 82-year-old lady who has been diagnosed with dementia. She appointed her husband CJL as her enduring attorney and enduring guardian in October 2018. CJL is her second husband, they married about 25 years ago. They have lived on a rural property in Beverley, taking great pleasure in their animals and an active life. KYL learned to ride horses in late adulthood and is even now a keen participant in line dancing classes.
KYL has four children from her previous marriage, including her daughter KH, the applicant in the current matters.
KH made applications under s 40 and s 110N of the Guardianship and Administration Act 1990 (WA) (GA Act), seeking to be appointed as the guardian and administrator for her mother and for the enduring power of attorney (EPA) and enduring power of guardianship (EPG) to be revoked. She made the application on the basis that she had concerns that CJL was making decisions that were not in the best interests of her mother. KH also had concerns that the EPA and EPG had been executed by her mother at a time when she lacked capacity to make such decisions.
In the months prior to the application KYL had been admitted to a residential aged care facility. KH had concerns regarding CJL's management of the financial arrangements, and his hostility towards her and exclusion of her from decisions, which was making it difficult for her to support her mother in the way in which she wished.

The principles to be observed

In making a decision the Tribunal must observe the following principles:
•the Tribunal's primary concern is the best interests of the person concerned;[1]
•every person is presumed to be capable of looking after their own health and safety; making reasonable judgments in matters relating to their person; of managing their own affairs; and of making reasonable judgments in respect of matters relating to the estate; until the contrary is proven to the satisfaction of the tribunal;[2]
•orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;[3]and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned and take them into account.[4]

The evidence before the Tribunal

[1] GA Act, s 4(2).

[2] GA Act, s 4(3).

[3] GA Act, s 4(4).

[4] GA Act, s 4(7).

At the first hearing on 22 December 2020, I had written reports from neurologist Dr O, general practitioner (GP) Dr M and previous GP Dr D. I also had copies of letters from Dr O to the GPs from 2017 to 2020. Aged Care Assessment Team (ACAT) reports from 12 September 2019 and 17 June 2020 along with a service provider report from facility manager JH provided additional information. Written submissions from the applicant, CJL (providing details of actions taken as the enduring guardian, and statements of assets, liabilities, income and expenditure), and LB, a long-time friend of the L's, who is also their accountant and one of the substitute donees of both the EPA and the EPG, were also filed.
Attending the December hearing in person were CJL, LB and her husband, and Mr C, representing the Public Advocate. Attending by telephone were KYL, JH, the applicant KH and her husband B, legal representative for KH, Ms S, and friend of the Ls and joint substitute donee of the EPA and EPG, RE.
It became evident that further investigation would be required to determine what would be in the best interests of KYL. I therefore adjourned the matter to permit the completion of an investigation by the office of the Public Advocate, and to receive further evidence from Dr D, KYL's GP at the time that the EPA and EPG were executed.
The second hearing on 9 March 2021 was attended by the same parties as the first, other than KYL (who had become confused and somewhat distressed by the first hearing). Dr D provided evidence in writing and also by telephone. In addition to his written report, Mr C provided tax invoices demonstrating payment of the fees at Baptist care, and results of a Landgate search. Revised statements of income and expenditure were received from CJL and additional submissions from LB.

Capacity

It was uncontentious that KYL currently suffers from dementia, and the reports of neurologist Dr O, and current GP, Dr M indicated that KYL is no longer capable of making decisions in her own best interests in any financial, legal or personal matter. Cognitive screening tests conducted in 2017, 2018 and 2019 demonstrate a steady fall in KYL's cognitive abilities with a Montreal Cognitive Assessment (MOCA) score of 16/30 in September 2019.
Dr D indicated in her report of 30 November 2020 that she had last seen KYL in June 2019, and she was therefore unsure regarding all fields of capacity, because of the lack of recent review. Ms H's service provider report indicated that as a result of her dementia, KYL is unable to process information in making decisions for herself, and has no insight into her condition but does accept medical care and services.
I am satisfied that there is clear and cogent evidence that KYL suffers from cognitive impairment by reason of her dementia which now prevents her from being able to make decisions in her own best interests. She is therefore a person for whom I could make orders appointing a guardian and administrator.

Need

Section 4(4) of the GA Act states:
'A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.'
KYL executed an EPA and EPG on 18 October 2018. These were prepared and witnessed by lawyers of the W Community Legal Centre. They are valid in form and the EPA includes a declaration that it would continue in force notwithstanding KYL's subsequent legal incapacity. In them she appointed CJL to be her enduring attorney and her enduring guardian and in both cases appointed RE and LB as the substitute joint donees upon the death or legal incapacity of CJL. The EPA and EPG were accepted by CJL on 18 October 2018. RE and LB have signed their acceptance of the enduring Power of Attorney on 20 March 2019. The copy of the EPG that I have on file has not been signed for acceptance by them.
KH made written submissions expressing her concern that given her mother's diagnosis with dementia in February 2017 (as per Dr D's report, with attached MMSE of 23/30), the EPA and EPG were not valid. She explained that her mother had never mentioned these documents to her during their discussions. KH stated that one day she 'asked her mother if CJL had made her sign any documents and her mum said yes. Mum said CJL had got her to sign documents, however she did not know what they were or where they were located.'
I was provided with a copy of a short note written by Dr D on 14 August 2018. It stated that KYL was able to make decisions in regards to organising her new will.
In oral evidence to the Tribunal at the second hearing, Dr D explained that she had formed the view after discussion with KYL on 14 August 2018, that she did have sufficient understanding of the powers that she was granting to the donees in the EPA and EPG for Dr D to be satisfied that KYL was capable of validly executing these documents. Dr D stated that she was seeing KYL regularly through 2018 and 2019, and that her cognition was stable through that period. KYL was still driving with the approval of Dr D and Dr O, and she understood what was going on.
Given that the EPA and EPG were prepared and witnessed by lawyers, and that KYL's GP at the time has confirmed her opinion that KYL had capacity at the time they were executed, I am satisfied that the EPA and EPG are valid.
I therefore turn to whether the decisions being made by CJL as the enduring guardian and attorney are in the best interests of KYL, and if they meet her needs.
KH's concerns as outlined in her submission include the following:
Accommodation - KYL's admission to the nursing home in September 2020 came as a surprise to KH. She reported that when she visited her three days later her mother was extremely distressed, and that her room was bare and she had none of her personal belongings. KH made arrangements to bring furnishings, a television and personal items to help her mother to settle in. The location is a 3½ hour drive from where KH lives, and only 30 minutes' drive from CJL. At the first hearing, KH proposed to move her mother to an aged care facility closer to her, however by the March hearing, KYL had settled, and KH had formed the view that moving her would not be in her best interests.
Relationships - KH raised concerns regarding CJL's aggressive behaviour and its damage to supportive relationships of her mother. She detailed the difficulties she experienced in having ongoing contact with her mother, and the effect of CJL's behaviour on the supportive relationship her mother enjoyed with her cousin FF. KH included emails regarding conflict and concerns about CJL's behaviour between herself and FF from August 2020.
Finances - the reverse mortgage taken out on the property in 2015, and its use to purchase a ute and a horse float were raised as examples of financial actions taken by CJL that KH feels are not in her mother's best interests. She expressed concerns about how superannuation funds and a life policy payout of some $20,000 each had been utilised. KH had concerns regarding how her mother's care costs could be met at the same time as paying the costs at the property. She was worried that her mother might be liable financially for the reverse mortgage in the event that CJL died or was incapacitated.
I will address the evidence in regard to each of these areas in turn.
Firstly, in regard to medical decision making, including provision of services at home and the eventual decision that KYL required permanent residential care, I was able to review the ACAT reports, the correspondence from Dr O to the GPs, and the statement by CJL regarding the actions he has taken as the enduring guardian.
These demonstrate that CJL has been accompanying KYL to regular follow up appointments and working to assist her in maintaining independence in the community for as long as possible. It is acknowledged in the ACAT report of 2020 that KYL's care needs are increasingly difficult to meet at home. Permanent care had been approved in 2019, but an urgent level four package and high level respite were approved.
Submissions of CJL, LB and an email from social worker AJ from Northam Hospital to the Tribunal on 18 December 2020 all indicate that the need to accept a residential care place for KYL was very difficult for CJL. LB explained that he felt he had very little time to have to make the final decision once the bed became available.
CJL explained that he had been advised not to tell KYL the move was permanent, and not to visit too often immediately after she was admitted, to help her settle in. He had also been told it was a risk for people with dementia to sit still for too long, which is why he hadn't organised a television and additional comforts for her room. He is now visiting three times a week, taking KYL out to participate in line dancing and bringing her two pet dogs to visit.
CJL stated that given KYL has lived in B for the last 20 years, and it is important for him to be able to visit her regularly, he felt that the location of the aged care facility is reasonable.
I am satisfied that CJL has been making medical, services, accommodation and care decisions in the best interests of KYL.
Secondly, it is clear there is an ongoing breakdown in the relationship between CJL and KH. CJL claims that this is because he believes KH has not been a sufficiently caring daughter. KH submits that CJL refuses to allow her to be involved in the decision-making and makes it very difficult for her to assist her mother.
Ms H provided evidence regarding a particular incident after KYL had been admitted to the aged care facility. KH arrived to visit KYL while CJL was there. CJL became agitated and aggressive, demanding that Ms H call the police, and prevent KH from visiting. Ms H indicated that KYL is distressed by the conflict. She enjoys visits from both CJL and KH. Ms H expressed the view that KH had her mother's best interests at heart, and had provided nice things for her and been very supportive.
CJL's submissions prior to the second hearing indicated that he acknowledges that KH has a right to visit KYL, and to be kept informed regarding her health and well-being. At the first hearing, Ms H offered to assist by providing information to members of the family about when the others planned to visit, so they can avoid one another. This had been working well between hearings.
At the second hearing Ms H indicated that the facility staff were also happy (and had permission from CJL) to provide medical information to KH. Constructive discussion led to a mutually agreed communication plan regarding any event where KYL suffered a sudden deterioration in health requiring medical intervention or transfer to hospital.
The email trail provided by KH in her submissions supported the allegation that there was an ongoing pattern of aggressive behaviour by CJL to KYL's cousin FF. At the hearing CJL referred to her as 'interfering' while also acknowledging that she had provided financial assistance to them to purchase solar panels. FF had declined to participate in the hearings as she was concerned it might do further damage to her relationship and ability to visit KYL. Ms H indicated that similarly to the arrangement for KH, visits by FF at times that CJL would not be present could be facilitated.
CJL's demeanour and speech at the hearings confirmed his tendency to use pejorative and demeaning language to describe KH and FF in an aggressive manner. Ms B had cause on multiple occasions to verbally and physically prompt him to calm himself.
Were it not for the exceptional efforts of Ms H and the facility staff in providing less restrictive means which facilitate visits and the provision of information to KH and FF, I would have concerns regarding whether the EPG served KYL's needs in terms of the maintenance of supportive relationships. I note also the positive influence of Ms B, both in the hearings and in her measured written submissions, on behaviour of CJL. This was acknowledged in the closing submissions of Ms S.
On balance, it appears that the current arrangements, now that KYL is living in the aged care facility, provide better opportunity for supportive relationships to be maintained than when she lived at home.
Mr C found on his investigation that there was no need to appoint a guardian as KYL's needs are bring met under the EPG. I considered whether an independent contact guardian was required given my ongoing concerns about CJL's behaviour. However, KYL's needs in this area are being met without the need for me to make any appointment, due to the efforts of Ms H and Ms B (who is prepared to be the intermediary in any circumstances where the facility is not able to assist).
Finally, in regard to finances, Mr C provided invoices demonstrating that KYL's care fees are being paid reliably. CJL and KH both pay for some goods and services for KYL. The revised income and expenditure details provided by CJL and Ms B prior to the second hearing no longer include the cost of upkeep of the pets (including horses) on the property within KYL's expenses, which was previously leading to her fortnightly budget being in deficit. I accept the evidence of CJL and Ms B that the pets are very precious to KYL, however the responsibility of the substitute financial decision-maker is to ensure that her personal care needs are reliably met. This may require difficult emotional decisions to be made. At the second hearing, I was satisfied by the altered income and expenditure submissions, and CJL's undertaking that expenses related to the day to day running of the property would be met without recourse to KYL's income. I note however that given KYL is the joint tenant of the B property, 50% of the costs required to maintain the value of that asset would reasonably be paid from her estate by her attorney.
KH raised concerns about the use of the reverse mortgage to purchase a ute and horse trailer. I note this was in 2015, at a time when there was no question regarding KYL's capacity. CJL explained that KYL travelled regularly to ride socially, and these assets were purchased for her benefit. I am satisfied that these purchases are not a cause for concern.
KH also raised concerns regarding how to meet potential funeral expenses. This is not a concern for the Tribunal, as the responsibilities of those appointed under the GA Act only relate to decisions for the represented person while they are living.
Concerns were also raised regarding whether KYL would be liable for any debts should she out-live CJL. I note that the effect of the reverse mortgage is that the property would be sold, the mortgage repaid and the residue would then become part of KYL's estate. The reverse mortgage allowed the Ls to realise some of the value of their asset and utilise it without needing to move (until her care needs led to the need for KYL to do so). I am not persuaded that the action in taking out the reverse mortgage has been detrimental to the best interests of KYL.
KYL currently resides in an aged care facility where she has settled and her care needs are met. She can be visited multiple times a week by her husband, attend line dancing classes and be visited by her daughter and her cousin. The fees are being paid, and between her daughter and her husband, additional items and services are provided.

The view and wishes of KYL

Mr C's conversation with KYL allowed me to understand her views and wishes. She could no longer recall executing the EPA and EPG, but indicated that she would want CJL to make both personal and financial decisions for her. She recalled LB and RE as trusted family friends, and that LB is the family accountant.

The decision of the Tribunal

For the reasons above I was persuaded that the EPA and EPG were validly executed, that they still accord with KYL's wishes, and that they serve as a less restrictive alternative to the making of orders by the Tribunal, which in KYL's particular circumstances will suffice to safeguard her health, safety and financial affairs.

I will therefore dismiss the application for the appointment of an administrator and a guardian on the grounds that there is no need, as a less restrictive alternative exists. I will also dismiss the application under s 110N for revocation of the EPG, as I find that it is operating in the best interests of KYL.
I note the closing submission of Ms S, which proposed an amendment to the EPA to appoint LB as the joint attorney with CJL, rather than the substitute. I could only vary the power under s 108 of the GA Act if I were making orders under ss 65 or 66 of the Act appointing an administrator, or if I had an application under s 109(1)(c) to consider. Neither of these is the case. However, even if it were, the EPA and EPG as currently structured reflect KYL's views and wishes, and I am satisfied that the informal supports suffice as a safeguard around their ongoing function to provide for the health, safety and financial wellbeing of KYL.
I therefore make the following orders:
GAA 4183/2020
1.The administration and guardianship application is dismissed.
GAA 4089/2020
1.The application to revoke an enduring power of guardianship is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
12 APRIL 2021