L
[2024] WASAT 80
•2 AUGUST 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: L [2024] WASAT 80
MEMBER: MS R BUNNEY, MEMBER
HEARD: 25 JULY 2024
DELIVERED : 25 JULY 2024
PUBLISHED : 2 AUGUST 2024
FILE NO/S: GAA 3277 of 2024
L
Represented Person
HOSPITAL G
First Applicant
E
Second Applicant
Catchwords:
Guardianship - Administration - Revocation of enduring power of attorney - No capacity to sign enduring power of attorney - Complex family dynamics - Significant family conflict - Removal of represented person from state of residence - Best interests of represented person - Wishes of represented person - Maintaining supportive relationships of represented person - Preserving existing family relationships - Public Advocate appointed guardian - Appointment of private administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(7), s 38D, s 44(1)(a), s 44(1)(b), s 44(2)(a), s 44(2)(d), s 51(2)(e), s 51(2)(g), s 68(1)(c), s 68(1)(d), s 68(3)(a), s 68(3)(c), s 70(2)(a), s 70(2)(b), s 70(2)(d), s 70(2)(e), s 70(2)(f), s 70(2)(g), s 70(2)(h), s 110ZD
Result:
Enduring power of attorney revoked
Private administrator appointed
Public Advocate appointed as guardian
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| First Applicant | : | In Person |
| Second Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
L is a 70-year-old man who has lived most of his life in New South Wales. Everything has changed for L in the last three months. In April, he was admitted to Hospital N in New South Wales following a significant fall and he was diagnosed with Lewy body dementia.
After three weeks at Hospital N, he was discharged into the care of his wife B who he maintains a close relationship with despite their separation 22 years ago. L and B have two daughters, K and O, who visited him regularly while he was in Hospital N. L convalesced at B's home for three weeks up until around mid-May.
L's former de facto partner, E, has lived in Western Australia for the last 5 years in a town around 350 kilometres from Perth. L and E share four children - a son aged 20, a daughter W aged 19, a daughter J aged 14 and a son H aged 7. H has been living with E for the last nine months.
When L was in Hospital N, E came to New South Wales to see him, but also because she was contacted by NSW Police and Child Protective Services (CPS) about J, who was home alone while L was in Hospital N. L lived in an apartment (Apartment) with W and J, but W was away for work when L had the fall, leaving J alone. It was agreed with CPS that J would live in Western Australia with E. However, J has returned to New South Wales and is back living in the Apartment with W.
E decided in late May that L would live with her in Western Australia. Two days after his arrival, L signed an enduring power of attorney appointing E as his attorney (EPA). Four weeks later on 13 June, L suffered a catastrophic fall and broke his hip and three vertebrae. L underwent hip replacement surgery at Hospital G. This application was filed on 1 July when Hospital G became aware that L was legally married to B.
B, K and O do not know where L was. They were not involved with the decision to relocate him to Western Australia. They do not know he has undergone significant surgery and rehabilitation. They were not given notice of this application or the Hearing, although efforts were made to contact them. The only family members that attended the hearing were E, W and H.
For the reasons that follow, I have decided to appoint L and E's daughter W as his administrator and the Office of the Public Advocate (Public Advocate) as his guardian.
Three questions the Tribunal must answer
The starting point for the Tribunal, when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments in respect of matters relating to their estate and their person. It is only when the 'presumption of capacity' has been set aside that the Tribunal can consider making guardianship and administration orders.
The primary concern of the Tribunal is L's best interests. When deciding whether to appoint a guardian or an administrator for L, the Tribunal must answer three questions:
(a)Does L lack the capacity to make his own decisions about his personal and financial matters?
(b)If so, is there a need for the Tribunal to make an order to appoint a guardian or an administrator? Or is there a less restrictive way for decisions to be made in L's best interests?
(c)If there is a need for an order, who should be the guardian or administrator, what functions or powers should they have, and how long should the orders run before they are reviewed?
The Tribunal will make findings of fact about capacity and other matters by reference to oral and written evidence of health professionals and lay people. I have considered all that evidence and need not set it out in detail. The relevant features are summarised later in these reasons.
L's views and wishes
The Tribunal must take L's views and wishes into account. However, the Tribunal may make a decision in L's best interests that may not be exactly what he wants. L told me that he wants E to make his decisions about his personal and financial matters. However, L also told me that:
(a)he had been living in Western Australia with E for the last few years; and
(b)he gets mixed up between thinking he is on holiday with E or living with E.
E told me that L said that he liked living in the hotel, in reference to Hospital G.
In relation to B, K and O, L told me:
(a)B, K and O visited him at Hospital G, and they were there when he was brought in on the stretcher when he broke his hip;
(b)the last time he spoke to B was a week ago and they discussed a family member who died a week or two earlier; and
(c)he last spoke to O about half an hour before the Hearing, as he passed her in the corridor in Hospital G.
I have taken L's views into account, but I am unwilling to appoint E as L's decision-maker due to L's confusion about his present situation caused by the symptoms of Lewy body dementia. E confirmed in the Hearing that B, K and O do not know where L is, meaning that the interactions with B, K and O that L told me about were not based in reality.
I found L to be a humorous, good natured, vulnerable man who was unable to follow the discussion in the Hearing and occasionally became distressed and agitated. He was well supported by the Social Worker from Hospital G during the Hearing, who respectfully advocated for L. I am grateful to the staff of Hospital G for making the application, and including E in that process, to bring L's matter to the attention of the Tribunal.
In all of the circumstances, I am satisfied that it is not in L's best interests to follow his stated views and wishes in determining this application. I am therefore unable to appoint E as his substitute decisionmaker.
Question 1 - does L lack the capacity to make his own decisions about his personal and financial matters?
(1)(a) When can a guardian be appointed? The test for incapacity
To appoint a guardian for L, I must be satisfied that he is over 18 years of age and that one or more of the following criteria apply:
(a)he is incapable of looking after his own health and safety;
(b)he is unable to make reasonable judgments in respect of matters relating to his person; or
(c)he is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
(1)(b) Does L lack the capacity to make personal decisions?
I am satisfied, and I find, that L is currently incapable of looking after his health and safety. The evidence from the occupational therapists from Hospital G states that L has impaired insight and attention. He is unable to follow instructions and is impulsive, which causes a risk of harm and injury to himself. The fall for which L is currently hospitalised occurred because he attempted to stand up without assistance, resulting in him falling over and breaking his hip.
I am satisfied, and I find, that L is in need of supervision and oversight in order to protect his health and safety. L requires 24/7 supervision to ensure that his health and safety is protected particularly in relation to his impulsivity and the risk of further falls.
I am satisfied, and I find, that L is currently incapable of making reasonable judgments in respect of his person. I observed during the conversation I had with L that that he may have been confused or experiencing the fluctuating delirium, mentioned in the notes of the multidisciplinary team filed by Hospital G, that was present throughout his admission.
(1)(c) Conclusion on capacity to make personal decisions
I am satisfied and I find that the presumption of capacity has been set aside in relation to personal decisions and L is a person for whom I can appoint a guardian.
(1)(d) When can an administrator be appointed? The test for incapacity
To appoint an administrator for L, I must be satisfied that he is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.
(1)(e) Does L have a mental disability?
The medical evidence provided by Dr R of Hospital G confirms that L has received a diagnosis of Lewy body dementia, which is a mental disability: s 3 GA Act.
(1)(f) Does the mental disability cause L to be unable to make reasonable judgments about his estate?
A person's 'estate' includes their real and personal property, all assets and liabilities, and all of their financial affairs. L's estate is modest and as far as the Tribunal is aware, consists of his pension income, the lease on the Apartment (Lease) and his ongoing payments for his phone and Internet.
The family lived in the Apartment, which has three bedrooms and two bathrooms, from 2007 onwards. The Apartment is leased by an affordable housing provider in Sydney. When E separated from L in 2019 and moved to Western Australia, the children were aged 15, 14, 9 and 2, and they continued living with L at the Apartment. The Apartment has therefore been the family home for L and the children for the last 17 years.
E and W both gave evidence that they noticed changes in how L was previously able to independently manage his finances. E knew that there was something wrong with L when she came to New South Wales in October 2023 to unilaterally relocate H to Western Australia after L suffered a fall. E noticed that some bills were not paid at that time. W gave evidence that she was assisting L prior to October 2023 with budgeting, dealing with Centrelink and managing his finances as his capacity reduced.
I am satisfied, and I find, that the mental disability is the cause of L's inability to make reasonable judgments in respect of his estate. It appears, on the limited evidence available to the Tribunal, that L's ability to manage his finances independently declined from at least some point in 2023 when W was assisting him, prior to the diagnosis of Lewy body dementia being made in April 2024.
(1)(g) Conclusion on capacity to make financial decisions
Having regard to the oral evidence provided to the Tribunal, I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of L's ability to make reasonable judgments in respect of his estate. L is a person for whom I can appoint an administrator.
I next turn to explain why I am satisfied that L is in need of a guardian and an administrator.
Question 2 - is there a need for orders or a less restrictive option?
There is no doubt that L requires assistance to deal with his estate and to make decisions about his personal matters. The question I need to answer at this stage is not whether he needs assistance, but whether he needs an administrator or a guardian to be appointed for that purpose.
I must bear in mind the need to adopt a less restrictive option if possible.
(2)(a) Is the EPA an appropriate way for financial decisions to be made?
L arrived in Western Australia on 19 May 2024. On 21 May 2024, he signed the EPA. It is therefore necessary to examine whether the EPA is a less restrictive way for decisions to be made in L's best interests.
In addition to the technical error in the EPA that renders it ineffective, I am satisfied on the evidence before me that L did not have the capacity to sign the EPA and I will therefore revoke it.
I am satisfied that there no less restrictive way for financial decisions to be made in L's best interests as L needs someone to have the legal authority to manage his estate. There is a need for the Tribunal to appoint an administrator.
(2)(b) Is there a need for a guardian?
L is unable to make decisions about his personal matters. I am satisfied that L did not have capacity to consent to the decision to travel to Western Australia on the basis of his statements that he does not know if he lives here or is staying in a hotel on a holiday.
Informal decision-making is no longer an option as it was informal decisionmaking that brought L to Western Australia without the knowledge of B, K and O. In addition, and of vital importance, Hospital G does not know who is able to make medical treatment decisions for L.
I am satisfied that there is no less restrictive means available for personal decisions to be made for L other than by the appointment of a guardian who has the legal authority to make decisions about matters such as medical treatment, accommodation, support arrangements and travel. These are all current live issues where there is no agreement between the family members that attended the Hearing about what decisions should be made in L's best interests.
It is necessary that all the people that are important to L are involved in discussions about his care at this time in his life. It is also important that all his family members are involved in further Tribunal hearings.
I am therefore satisfied on the evidence before me that there is a need for the Tribunal to appoint a guardian so there is a substitute decision-maker with the clear legal authority to make the decisions required to be made.
I next turn to explain how I decided who should be appointed as the guardian and administrator, what functions are required and how long the order should run for.
Question 3 - who, what and how long?
(3)(a) Who should be L's guardian?
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of the person, is suitable to act as the guardian and is not in a position where their interests conflict or may conflict with L's interests. The Tribunal must also be satisfied that the proposed guardian will be able to perform the functions vested in them.
The Tribunal is only able to appoint to the Public Advocate as guardian is there is no one willing or suitable to act. I am required to make findings about suitability on the basis that both E and W have proposed themselves as L's guardian. I find that E and W are both over the age of 18 years and have consented to act as the guardian.
Consideration of W as guardian
W is aged 19 and is employed by an Australian Government organisation in relation to law enforcement. W attended the Hearing and I found she was mature, responsible and capable.
However, the reason that I have decided that W is unsuitable to act as the guardian is because the Tribunal must take into account the desirability of preserving the existing relationships within L's family: s 44(2)(a) GA Act.
I accept W's evidence that because of her employment, she has distanced herself from the family conflict and has remained neutral. W acknowledges that B, K and O are L's family and her view is that it is appropriate that L live in New South Wales where most of his family is.
W's view, based on first-hand experience, is that it is extremely difficult and stressful to care for L as his illness has progressed. W told me that her view is that residential care in New South Wales would be the best option for L. I find that W has a realistic and sound understanding of L's care needs.
I asked W how she thought her mother might accept a decision that L was to return to New South Wales. W said that E and H would be able to fly over to visit him and noted that it is easier for two people to fly to New South Wales than for six people to fly to Western Australia.
W gave evidence that if L returned to New South Wales and lived in aged care, she intends to take him home to the Apartment on the weekends, so L would continue to enjoy a connection with his home of 17 years.
Although I am satisfied that W can and will make sensible decisions for her father in his best interests, and she is not influenced by her mother's interests, I am concerned that the decisions W would make as guardian would cause further conflict between L's family members, specifically between E and W.
L's family with E is already divided geographically. Any more conflict about L's living arrangements could have implications for 7year-old H and his ability to see his older siblings, or for 14-year-old J and her living arrangements. To say that the family dynamics in this matter are highly complex is an understatement.
Consideration of E as guardian
Acting in L's best interests - maintaining his supportive relationships
I am not satisfied that E will be able to act in L's best interests in respect of maintaining his supportive relationships with all his family members: s 51(2)(g) GA Act.
E gave evidence that when L was in Hospital N, she would visit in the evenings as B, K and O would visit L during the day. Around the same time, E obtained the equivalent of a restraining order to protect herself from B and K on the basis that B and K entered the Apartment without permission when E was staying there in April.
L needs his guardian to ensure that he has contact with all his family members in order to maintain his supportive, meaningful relationships in his advancing years. The restraining order will prevent E from connecting with and facilitating L's contact with B and K.
If E was L's guardian, I would be concerned about any further admission to hospital and whether B, K and O would be notified. In addition, if L passed away, I would be concerned about how quickly the family would be told and whether they would have an opportunity to say goodbye if that time came.
E disclosed during the Hearing that L's sister P is terminally ill with cancer. This makes it even more important that all efforts are made for L to communicate with his family, particularly his sister who also lives in New South Wales. E appeared unable to grasp the importance of family members having the opportunity to spend time with L in his advancing years, particularly when suffering from a progressive illness.
I find that E's ability to make decisions in L's best interests is impacted by the long-standing conflict that exists between her and B, K and O, and E's rigid view about who can be involved in L's life. E's view is that B, K and O should not be involved because that would cause her to be excluded, meaning, it's one or the other.
Noting that E has been living in Western Australia for the last five years and could not be aware of how much time L has spent with B, K and O in that time, E summarised her view in the Hearing as follows:
I was with him for 22 years and they wanted nothing to do with him, and now all of a sudden because he's sick they should have a choice to have something to do with him and I'm just shoved to the side. That's not right.
E gave evidence that she has possession of L's mobile telephone. She therefore controls who can contact him. E said that she answers every call and returns every missed call, so she knows that B, K and O have not tried to call him. When I asked why Hospital G and the Tribunal had not been given contact details for B, K and O, E told me that their contacts are not saved into L's phone.
E stated at 1.18 pm in the Hearing that she did not have L's phone.
I am satisfied, and I find, that if E was the guardian, she would not maintain his supportive relationships with all his family members.
Acting in L's best interests - L's wish to return to New South Wales
The guardian must take into account, as far as possible, the wishes of the person as expressed, in whatever manner, or as gathered from the person's previous actions: s 51(2)(e) GA Act. I asked L if he would like to go back to New South Wales, and he said, 'I'd be mad if I said no'.
E made the following statement early in the Hearing:
I am not wanting to, and [L] might get cranky at me for saying this, but I am not wanting to send him back to New South Wales.
I find, based on this statement, that E is aware that L wants to return to live in New South Wales. L said that he did not know if he was on holidays with E or not, and self-consciously told me that he would get mixed up. I note that consistency, familiarity and routine is very important for people with dementia. L only stayed in E's home for four weeks and had been in Hospital G for six weeks at the time of the Hearing. L thought he was staying in a hotel.
E's evidence about going to New South Wales evolved throughout the Hearing. After saying she did not want to send L back, she later said that she may go back to New South Wales at some point, but she cannot make that decision until November when her lease ends. Later again, she said that if L wanted to go to New South Wales for a holiday, she would have no issue taking him.
While I doubt the sincerity of this statement in any event, I find that L does not want to have a holiday in New South Wales. He wants to go home.
I am satisfied, and I find, that if E was the guardian, she would not follow L's wish to return to live in New South Wales.
Conflict of interest between E and L
A guardian cannot be in a position where their interests conflict or may conflict with L's interests: s 44(1)(b) GA Act. E does not accept that a conflict of interest exists between her and L. I have identified the following three conflicts of interest:
(a)first:
(i)E's view that B, K and O are not entitled to have contact with L based on E's perception about what occurred in the past; and
(ii)L's right to have contact with all his family;
(b)second:
(i)E's initial position that she wants L to remain in Western Australia with her and she is 'not wanting to send him back to New South Wales'; and
(ii)L's wish to return to live in New South Wales; and
(c)third:
(i)L's wish to return to live in New South Wales; and
(ii)E's updated position, expressed over an hour later in the Hearing, that she is unable to move to New South Wales (which is different to L going back) until her lease ends in four months' time, to avoid the financial detriment that would be caused by breaking the lease.
L's ability to perform the functions vested in the guardian
Despite E's stated belief that she has always acted in L's best interests, I find that E is unable to perform the functions proposed to be vested in the guardian and act solely in his best interests: s 44(2)(d) and s 44(1)(a) GA Act.
On 12 July, two weeks before the Hearing, E attempted to discharge L from Hospital G against medical advice, alleging that the medical staff were not taking care of him. The staff that witnessed the incident described her agitation and heightened state as inappropriate, threatening and aggressive towards staff and patients. I would describe the behaviour I observed during the Hearing in similar terms.
I accept that E is devoted to L and has made considerable personal efforts to care for him. However, the incident mentioned above at Hospital G and E's conduct during the Hearing demonstrates that E has been unable to engage with other people involved in L's care in a cooperative and constructive manner. It is vitally important that the guardian can do this.
I observed an interaction between E and W during the Hearing, where E was argumentative and combative towards W when W was calmly discussing her father's best interests. I accept that E perceives her advocacy as sincere and promotes L's best interests, however the behaviour I witnessed did not advance L's interests at all.
It was clear to me that in addition to being rational and composed, W is able to advocate for her father even when her mother does not agree. This is a significant reason why I have found W to be suitable to be appointed as her father's administrator, which is discussed further below.
L's guardian must be able to communicate with all members of his family and keep them updated in respect of L's health and welfare. L needs his guardian to make sound decisions to ensure he is able to maintain supportive, meaningful relationships with all members of his family during his advancing years as his illness inevitably progresses. I consider that this is most likely to be achieved by an independent guardian; that is, the Public Advocate.
I am satisfied that the only option open to the Tribunal is to appoint the Public Advocate as L's guardian.
(3)(b) What functions should the guardian have?
Medical treatment
I find that L requires a medical treatment guardian to give informed consent to medical treatment and procedures. While L has a number of family members that would having standing under the hierarchy of decision-makers set out in s 110ZD of the GA Act, it is in L 's best interests that there is clarity for all health professionals that treat him about who has the authority to make medical treatment decisions. This was a main reason why Hospital G made the application to the Tribunal.
Accommodation
L requires a guardian to be able to make decisions about accommodation, firstly in relation to where he will live when discharged from Hospital G, and secondly, whether he will stay in Western Australia or return to New South Wales.
Services
L requires a guardian to make decisions about services, specifically in relation to the ACAT services, as it appears that there have been assessments performed in both New South Wales and Western Australia. If L does not move into residential care, his guardian will need to read and sign contracts to engage service providers and communicate with L's family members in relation to the provision of services to L.
Contact
L requires a guardian to make decisions about who he will have contact with and the extent of that contact. The evidence demonstrates a difficult and complex family history, made more challenging by:
(a)the grief experienced by the family in relation to the progressive nature of L's illness; and
(b)the enduring tensions between L's two long-term former spouses, which currently include a restraining order.
In light of that, decisions about future contact need to be made by a guardian to protect L's supportive, meaningful relationships.
Restrictive practices
The notes provided by Hospital G make multiple mentions of L's impulsivity, reduced attention and inability to follow instructions. It is therefore likely that restrictive practices, such as a mechanical or environmental restraint, will be imposed in an aged care setting to ensure that L's health and safety is protected.
Travel
L requires a guardian to make decisions about whether he will travel interstate, for a holiday or to live, and the terms and conditions of that travel.
Conclusion
I am therefore satisfied that there is a need for a guardian appointed by the Tribunal to make decisions for L about his medical treatment, accommodation, services, contact, restrictive practices and travel.
(3)(c) Jurisdiction of guardianship order - s 44A GA Act
As L is in Western Australia, the Tribunal has jurisdiction to make a guardianship order that will empower the Public Advocate to make decisions for L while he is in Western Australia, including where he will live and whether he will travel interstate.
If a decision is made for L to return to New South Wales, while the Tribunal order may be recognised there, it is possible that the Public Advocate may be unable to make a decision or give consent to matters that are specific to New South Wales or are not covered by these orders.
I discussed during the Hearing that if this occurred, an application could be made to the New South Wales Civil and Administrative Tribunal (NCAT).
3(e) Who should be L's administrator?
When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of L, is suitable to act as the administrator of his estate and will be able to perform the functions vested in them.
E and W both proposed themselves for nomination as L's administrator. I find that E and W are over the age of 18 years and have consented to act as the administrator.
Consideration of E as administrator
As set out in detail in these reasons, I am satisfied and I find that E is unable to act solely in L's best interests in respect of his personal matters due to, among other things, the ongoing conflict with B, K and O and the conflict of interest between E and L.
As I have appointed the Public Advocate as L's guardian, which E has staunchly opposed, I am not satisfied that if E was appointed as the administrator that she would give effect to the decisions made by the independent guardian. I am therefore satisfied that E would not be able to perform the functions vested in the administrator: s 68(3)(c) GA Act.
I therefore find that E is unsuitable for appointment as L's administrator.
Consideration of W as administrator
I find that W will act in L's best interests in relation to his financial matters and that she is suitable to be appointed as her father's administrator: s 68(1)(c) and s 68(1)(d) GA Act.
Prior to L's relocation to Western Australia, W was responsible for managing L's finances. L authorised W as a signatory on his bank account before he lost capacity and W assisted him with budgeting, the payment of his bills and communicating with Centrelink. I find that this is evidence of L's wish that W assist him with his finances, and he willingly accepted her help: s 4(7) GA Act.
I am satisfied that W will be able to perform the functions vested in the administrator, particularly around the reporting requirements to the Office of the Public Trustee. W's employment is based on ethics, integrity and transparency, and due to her professional obligations, I am satisfied that she will diligently manage her father's finances.
I am also satisfied that W will act in L's best interests to:
(a)work co-operatively with the independent guardian and give effect to the decisions made by the guardian: s 68(3)(a) GA Act;
(b)act as an advocate for L in relation to his estate: s 70(2)(a) GA Act;
(c)encourage L to live in the general community and participate as much as possible in the life of the community: s 70(2)(b) GA Act;
(d)protect L from financial neglect, abuse or exploitation: s 70(2)(d) GA Act;
(e)consult with L and as far as possible, take into account his wishes as expressed, in whatever manner, or as gathered from his previous actions: s 70(2)(e) GA Act;
(f)act in the manner that is least restrictive of his rights while consistent with his proper protection: s 70(2)(f) GA Act;
(g)maintain the supportive relationships that L has: s 70(2)(g) GA Act; and
(h)maintain L's familiar cultural, linguistic and religious environment: s 70(2)(h) GA Act.
(3)(e) What should the administrator's powers be?
I am satisfied that it is appropriate that the administration order be a plenary order, which will allow the administrator to deal with all aspects of L's estate in his best interests. I am satisfied on the evidence provided by Hospital G that L is unable to make decisions about simple or complex financial matters, process or remember information, or advocate for himself.
I will also include a gifting authority of $1,000 per year so the administrator can purchase gifts on L's behalf. He has six children and two former spouses that he may wish to buy gifts for.
(3)(f) Jurisdiction of administration order - s 38D GA Act
Like the guardianship order, the administration order can be recognised in NSW. The administration order will allow W to communicate with Centrelink and My Aged Care which are both administered by the Australian Government. The order will also allow W to transact with businesses that operate nationally, such as to close L's accounts with Optus or to open an account with a bank that operates nationally to redirect his pension.
However, the administration order may not allow W to deal with L's Lease for the Apartment, which is a state-based contract in New South Wales. If not, an application may need to be made to NCAT for a financial manager to be appointed to manage L's financial and legal matters in New South Wales, and specifically, the Lease.
W seeks to have the Lease transferred into her name. She pays the rent and has assured the Tribunal that she will continue to do so, on the basis that L is legally liable to pay the rent while the Lease is in his name.
In circumstances where the Apartment has continuously been the family home for L and the children for the last 17 years, and the rent payable is significantly less than market rent, my view is that it is appropriate that W take all steps possible to transfer the Lease into her name. This will ensure stability for herself, J, L and the rest of the family.
I expect that transferring the Lease to W would be in accordance with L's wishes, particularly when considering W's intention is to bring L back to the Apartment on weekends to maintain the familiarity and connection with his former life.
(3)(g) How long should the orders run before review?
When making orders, the Tribunal is required to fix a period for the review of the order. The medical evidence is clear that L has a diagnosis of a progressive illness such that his need for a guardian and administrator will be lifelong. I will make the order reviewable in 5 years, which is the maximum term possible.
L may move back to New South Wales, and while these orders can be recognised in New South Wales, it may be more appropriate or necessary at some point that similar orders are sought from NCAT. NCAT will likely examine, among other things, whether there has been sufficient resolution of the issues which currently preclude the appointment of a family member as guardian.
If orders are made by NCAT and the Tribunal orders are no longer required, an application can be made to this Tribunal for the orders to be revoked. Until that time, and subject to any further review, these orders appointing W as L's administrator and the Public Advocate as his guardian will remain in force until the statutory review which must occur within 5 years.
Orders
The Tribunal declares that the represented person, [L] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
1.[W] of [address] 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 $1,000 per annum on gifts on behalf of the represented person.
3.The enduring power of attorney dated 21 May 2024 by which the represented person appointed [E] to be their attorney, is revoked.
4.The administration order is to be reviewed by 25 July 2029.
Guardianship
5.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;
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact;
(e)to determine the services to which the represented person should have access;
(f)to decide whether to give or withhold consent to the use of any restrictive practice for the represented person proposed from time to time in compliance with Part 4A of the Quality of Care Principles 2014 made pursuant to the Aged Care Act 1997 (Cth); and
(g)to decide whether the represented person should travel and the terms and conditions of such travel.
6.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.
7.The guardianship order is to be reviewed by 25 July 2029.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
2 AUGUST 2024
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