LGM
[2016] WASAT 45
•4 MAY 2016
LGM [2016] WASAT 45
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 45 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:3856/2015 | 16 OCTOBER 2015 AND 3 DECEMBER 2015 AND 5 FEBRUARY 2016 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 4/05/16 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Guardianship and administration orders made | ||
| B | |||
| PDF Version |
| Parties: | LGM |
Catchwords: | Guardianship and administration Capacity Represented person diagnosed with anxiety and depression Represented person also diagnosed with Post Traumatic Stress Disorder Inconsistency in the evidence of the represented person's general practitioner Other evidence preferred which was indicative of the represented person having a much greater functional impairment than was assessed by the general practitioner Enduring power of attorney Enduring power of guardianship Only one qualified witness Defective as to form Son of the represented person not suitable to be appointed guardian and administrator Public Advocate appointed as limited guardian Public Trustee appointed as plenary administrator Enduring power of attorney revoked |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 65, s 68, s 69, s 84, s 104(2)(a), s 108(1a)(a), s 110(1)(c), s 110N(1)(a) |
Case References: | GC and PC [2014] WASAT 10 Re C [2012] WASAT 50 XYZ v State Trustees Ltd [2006] VSC 444 |
Summary | Applications for guardianship and administration orders were made in respect to LGM, the represented person, who at the time of the hearing was 64 years of age.,The represented person was living in temporary accommodation at the time the applications were made. He was not in receipt of an income and had a credit card debt of approximately $6,000.,Bank funds of approximately $17,600 the represented person had in November 2014 had all been expended.,Family members, including his exspouse and his sister, were concerned that the represented person was not functioning well and was under the influence of his son whom the exspouse (and mother of the son) said had a history of illicit drug use and would put his interests before those of the represented person.,The represented person had appointed the son as his attorney under an enduring power of attorney and as his guardian under an enduring power of guardianship. The instruments were defective in form because they had only one qualified witness.,The represented person's general practitioner was of the view that the represented person was capable of making his own personal and financial decisions. The represented person was said to suffer from anxiety and depression but that there had been a marked improvement in his mood in recent times.,In one document, the general practitioner had diagnosed the represented person with Post Traumatic Stress Disorder but he said that diagnosis and prognosis related only to the represented person's employment prospects. ,Other evidence before the Tribunal which was preferred, came from different sources, particularly the represented person's sister, the Public Advocate and the Public Trustee and which was indicative of the represented person having a much greater functional impairment than was assessed by the general practitioner.,The evidence from those sources was consistent with the represented person's presentation before the Tribunal, namely that he was vague in his responses, tangential and required regular prompting.,Despite the represented person's wish, the Tribunal was not convinced that the son should have a formal role in the represented person's decisionmaking.,The allegations made against the son regarding his illicit lifestyle issues were taken seriously by the Tribunal given that the evidence had come from the mother (exspouse), whose evidence was given significant weight and was not explicitly challenged.,The Tribunal also took seriously the exspouse's submission that the son (and another son) would likely place their interests over those of the represented person.,The Tribunal decided to appoint the Public Advocate as the represented person's limited guardian and the Public Trustee as his plenary administrator with a review of the orders in 12 months. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LGM [2016] WASAT 45 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 16 OCTOBER 2015 AND 3 DECEMBER 2015 AND 5 FEBRUARY 2016 DELIVERED : 4 MAY 2016 FILE NO/S : GAA 3856 of 2015 MATTER : LGM
- Represented Person
Catchwords:
Guardianship and administration Capacity Represented person diagnosed with anxiety and depression Represented person also diagnosed with Post Traumatic Stress Disorder Inconsistency in the evidence of the represented person's general practitioner Other evidence preferred which was indicative of the represented person having a much greater functional impairment than was assessed by the general practitioner Enduring power of attorney Enduring power of guardianship Only one qualified witness - Defective as to form - Son of the represented person not suitable to be appointed guardian and administrator - Public Advocate appointed as limited guardian - Public Trustee appointed as plenary administrator - Enduring power of attorney revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 65, s 68, s 69, s 84, s 104(2)(a), s 108(1a)(a), s 110(1)(c), s 110N(1)(a)
Result:
Guardianship and administration orders made
Summary of Tribunal's decision:
Applications for guardianship and administration orders were made in respect to LGM, the represented person, who at the time of the hearing was 64 years of age.
The represented person was living in temporary accommodation at the time the applications were made. He was not in receipt of an income and had a credit card debt of approximately $6,000.
Bank funds of approximately $17,600 the represented person had in November 2014 had all been expended.
Family members, including his exspouse and his sister, were concerned that the represented person was not functioning well and was under the influence of his son whom the exspouse (and mother of the son) said had a history of illicit drug use and would put his interests before those of the represented person.
The represented person had appointed the son as his attorney under an enduring power of attorney and as his guardian under an enduring power of guardianship. The instruments were defective in form because they had only one qualified witness.
The represented person's general practitioner was of the view that the represented person was capable of making his own personal and financial decisions. The represented person was said to suffer from anxiety and depression but that there had been a marked improvement in his mood in recent times.
In one document, the general practitioner had diagnosed the represented person with Post Traumatic Stress Disorder but he said that diagnosis and prognosis related only to the represented person's employment prospects.
Other evidence before the Tribunal which was preferred, came from different sources, particularly the represented person's sister, the Public Advocate and the Public Trustee and which was indicative of the represented person having a much greater functional impairment than was assessed by the general practitioner.
The evidence from those sources was consistent with the represented person's presentation before the Tribunal, namely that he was vague in his responses, tangential and required regular prompting.
Despite the represented person's wish, the Tribunal was not convinced that the son should have a formal role in the represented person's decisionmaking.
The allegations made against the son regarding his illicit lifestyle issues were taken seriously by the Tribunal given that the evidence had come from the mother (exspouse), whose evidence was given significant weight and was not explicitly challenged.
The Tribunal also took seriously the exspouse's submission that the son (and another son) would likely place their interests over those of the represented person.
The Tribunal decided to appoint the Public Advocate as the represented person's limited guardian and the Public Trustee as his plenary administrator with a review of the orders in 12 months.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
GC and PC [2014] WASAT 10
Re
- C [2012] WASAT 50
Introduction
1 Applications for guardianship and administration orders have been made in respect to LGM (represented person), who at the time of the hearing was 64 years of age.
2 In the course of the Tribunal proceeding, the represented person was living with Foundation Housing, an affordable (low income) housing provider. He was renting a room in a large block of units fitted with a bed and fridge. The represented person had access to communal living spaces.
3 The applications were made by PR (applicant).
4 The applications were made under the Guardianship and Administration Act 1990 (WA) (GA Act).
5 The applications were heard in the Tribunal's original jurisdiction.
6 The represented person has two sons, BM and JM. BM has been the most involved in the represented person's recent life.
7 The represented person has a sister, DP and an exspouse, SC who were involved in the Tribunal proceeding.
8 By an order made on 2 September 2015, BM was required to file a copy of the enduring power of attorney with the Tribunal by 28 September 2015.
9 By an order made on 2 September 2015, the Public Trustee was given the powers of a plenary administrator under s 65 of the GA Act.
10 Section 65 of the GA Act allows the Tribunal to make immediate provision for the protection of a person's estate pending the determination of the question whether the person is someone for whom a declaration can be made that they are in need of an administrator pursuant to s 64 of the GA Act.
11 The applications were the subject of three hearings, 16 October 2015 (first hearing), 3 December 2015 (second hearing) and 5 February 2016 (final hearing).
12 The represented person did not attend the first and second hearings. This was of concern to the Tribunal.
13 The represented person attended the final hearing after being requested by the Tribunal to do so.
14 The final hearing was scheduled after the decision was reserved at the second hearing. Following the second hearing, the Tribunal received a submission from the Public Trustee and copies of an enduring power of attorney (EPA) and an enduring power of guardianship (EPG) filed by BM. It was decided that the information in the documents warranted a reopening of the matter.
15 The EPA is dated 27 July 2015 and appointed BM as attorney. There is only one qualified witness to the instrument.
16 The EPG is dated 27 July 2015 and appointed BM as enduring guardian. It too has only one qualified witness.
17 The decision was reserved.
The relevant legislation
18 The relevant legislation is the GA Act.
19 The primary concern of the Tribunal is the best interests of the represented person: s 4(2) of the GA Act.
20 The represented person is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
21 Under s 43 of the GA Act the Tribunal cannot consider appointing a guardian for the represented person unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments about matters relating to his person; or is in need of oversight care or control in the interests of his own health and safety or for the protection of others.
22 Under s 64 of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of the represented person unless it is satisfied on the evidence that by reason of a mental disability, the represented person is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
23 Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
24 If a finding of incapacity is made in respect to the represented person, the Tribunal must further determine whether the represented person is in need of guardianship and administration orders. If the needs of the represented person can be met in a manner less restrictive of his freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
25 If the Tribunal decides that the represented person is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44,s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
26 As to the authority given to a guardian, the GA Act states that if a limited order is sufficient to meet the needs of the represented person then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on represented person: s 4(5) and s 4(6) of the GA Act.
27 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the represented person as expressed, in whatever manner, at the time, or as gathered from the represented person's previous actions: s 4(6) of the GA Act.
The question of the represented person's capacity
28 The represented person's general practitioner (GP) provided a report from September 2015 (Doctor's Guide) and also gave oral evidence at the second and final hearings.
29 The GP included in the Doctor's Guide a report from a geriatrician from March 2015. According to the Public Advocate, the geriatrician had seen the represented person in December 2014.
30 The geriatrician stated that the presenting problems with the represented person included cognitive impairment with some functional loss. The represented person was said to have problems with shortterm memory, word finding and visiospatial tasks. The geriatrician included the results of a Montréal Cognitive Assessment of 21/30 and for which a 'normal' score is equal to or greater than 26/30. The geriatrician stated that the presenting problem for the represented person had occurred on a background of generalised anxiety disorder and possible depression.
31 The geriatrician concluded that the represented person would be advised to have testing for reversible causes of memory loss. He advised the GP that the represented person had written to him stating that he did not want to follow up any further appointments with the memory clinic.
32 In the Doctor's Guide, the GP stated that the represented person had been given a Mini Mental State Examination (MMSE) on 21 September 2015. The represented person had scored 25/30 which, according to the GP, 'indicates that no significant cognitive impairment has been identified'.
33 The GP diagnosed the represented person with mild memory problems and anxiety. He said that the represented person had a history of chronic anxiety due to previous living conditions but was doing well with BM (his son's) guidance.
34 The GP was of the view that the represented person was capable of making his own personal and financial decisions.
35 The material filed by the represented person and BM included a 'Medical Certificate' prepared by the GP for the purposes of a Centrelink payment for the represented person (Centrelink report).
36 In the Centrelink report the GP stated a diagnosis of 'PTSD [Post Traumatic Stress Disorder]/anxiety'. This condition was stated by the GP as an exacerbation of an existing condition and the functional symptoms of which were panic attacks and reduced concentration. The GP assessed the represented person as being unfit for work or study from September 2015 to 21 December 2015 and stated in the Centrelink report that the represented person was likely to show considerable improvement within two years.
37 Also in the material filed by the represented person and BM, was a 'to whom it may concern' letter from the GP dated 21 August 2015 (August 2015 letter).
38 In the August 2015 letter, the GP stated that he had been treating the represented person for a number of serious issues with weekly counselling regarding past emotional and psychological abuse that had occurred in the last six years. The GP stated that he had noticed a marked improvement in both the represented person's physical and psychological health in the last four weeks. The GP stated that the represented person had conveyed to him that he wished to have nothing to do with the Tribunal proceedings due to his mental health and that he had advised the represented person to have BM deal with the matter.
39 In his oral evidence at the second hearing, the GP stated that he has been the represented person's treating doctor for eight years. He said that in December 2014 he had become concerned about the represented person displaying memory problems. At that time the represented person had scored 20/30 on a MMSE. The GP stated that the represented person was very depressed and anxious as a consequence of significant life events and was referred to a geriatrician for further assessment (see above).
40 The GP referred to the MMSE of 25/30 on 21 September 2015 as evidence of an improvement in functioning since December 2014.
41 The GP was of the view that the represented person seemed to be managing his accommodation notwithstanding that the accommodation was far from ideal and expected him to be eventually allocated public housing.
42 In response to the diagnosis he had stated on the 'Medical Certificate', the GP said that it was used for the purpose of forming an opinion as to whether the represented person was able to work.
43 In his oral evidence at the final hearing, the GP stated that he had last seen the represented person on 2 February 2016. A formal capacity assessment had not been undertaken. The represented person was oriented and the GP stated that he had relied on what the represented person told him to form the view that the represented person was capable of making personal and financial decisions. The GP assessed the represented person as having an improved mood because of his increasing independence.
44 The GP stated that anxiety/depression can lead to a form of 'pseudodementia' which mimics the symptoms of a dementia but does not constitute a diagnosis of that condition. The GP stated that the represented person has not been diagnosed with dementia. The represented person is prone to anxiety and the GP said that the triggers for that anxiety (which might lead to panic attacks) are lower than for the general population. Despite this, the GP was of the view that the represented person's confidence had increased recently and he was improving in his general functioning.
45 At the time of making the applications, the applicant was of the view that the represented person suffered from 'pronounced dementia'. The applicant also referred in his application to a 'psychiatric condition'. The applicant stated that from 'anecdotal evidence', it appeared that the represented person was 'completely disabled' when it came to making decisions and was suffering from paranoid delusions about individuals performing electric shock therapy on him. He was reported to have been overheard saying that he was spending two dollars or $500 to $3,000 per night on accommodation, when in fact he was staying in a shared lodge or hostel after leaving his mother's home where he had lived. The applicant further stated that the represented person had previously threatened suicide.
46 At the final hearing, DP, sister of the represented person, said that she had recently experienced the represented person as vague and quite confused. DP was of the view that the represented person was vulnerable to manipulation. She said the represented person was not taking care of himself and that he regularly visited his mother's home where he had previously lived.
47 DP stated that the represented person had been subjected to much stress over the years and, in particular, the death of his daughter in 2013 was a significant factor. She characterised the daughter's death has a 'breaking point' for the represented person.
48 DP stated that the represented person had always been an anxious person but that in her view, his anxiety had much increased in recent times.
49 BM (son) stated that the reason the represented person left his mother's home was his attempt to become independent once again. BM said that the Tribunal proceeding was having a negative impact on the represented person's mental state. He agreed that the death of his daughter had affected the represented person greatly.
50 BM stated that prior to the applications being made, the represented person was well on the way to finding a place of his own and enjoying retirement.
51 The Public Advocate interviewed the represented person on 7 October 2015.
52 In the interview, the represented person stated that he had no medical issues. He said he saw the GP some time ago and was prescribed Valium. However, he only took one tablet and appears to have misplaced the remainder of the medication. He advised the Public Advocate that he preferred natural remedies.
53 The Public Advocate reported that the represented person said that he had not seen the GP in respect of the question of his capacity to make lifestyle and financial decisions. He told the Public Advocate that he would need to discuss the matter with BM.
54 The represented person advised the Public Advocate that an Aged Care Assessment Team had visited him in his previous accommodation (with his mother) but he had indicated that he did not want to follow through with any proposal for further assessments.
55 The represented person told the Public Advocate that he and BM went to see a solicitor to discuss his mother's estate as he is a beneficiary under her will (she is not yet deceased). The represented person was unable to provide any detail on what occurred at the meeting. He did not recollect discussing matters about his finances and lifestyle in relation to the EPA and EPG and did not remember writing to the Tribunal about these matters (a submission purportedly made by the represented person and filed with the Tribunal on 30 September 2015).
56 The represented person advised the Public Advocate that he had two bank accounts, a savings account and an account with an ATM card. When prompted, he also advised he had a credit card. When the Public Advocate told the represented person the amount of debt outstanding on the credit card (the Public Trustee reports an amount of approximately $6,000), the represented person told the Public Advocate this amount did not seem correct because he had only used the credit card rarely, for fuel.
57 The Public Advocate stated that she spoke with the represented person's exspouse, SC.
58 SC was reported as saying to the Public Advocate that she had contact with the represented person recently and he had advised her that he had received electroconvulsive treatment, but that he had cancelled further appointments. SC expressed a view to the Public Advocate that the represented person was unable to handle any stress and she was concerned that BM was giving him incorrect information.
59 The Public Advocate also spoke with a tenancy support worker who had been assisting the represented person. The tenancy support worker said that the represented person had been referred by another agency in June 2015 due to difficult family dynamics with his sister DP and his mother and that he was still grieving the death of his daughter who died about two years ago. At that time, the represented person was working on low wages and could not afford private rental. The represented person had advised the tenancy support worker that he was not well, was stressed and wanted to retire. The tenancy support worker told the Public Advocate that since his retirement, she had observed a big difference in the represented person's presentation and she had not noticed him having any memory problems although he needed time to have things explained to him.
60 In her oral evidence at the second hearing, the Public Advocate submitted that in her view, the GP likely did not have a complete picture of the represented person's circumstances. She said that she had found the represented person to be vague and that he had difficulty in articulating a sequence of events. The represented person felt that he was capable, but the Public Advocate submitted this did not appear consistent with the facts. She said that it appeared the represented person could formulate a plan but seemed to find it difficult to follow through. The Public Advocate said that the represented person was very reliant on BM and sought his assistance.
61 In a report dated 2 December 2015 and in a submission dated 7 December 2015, the Public Trustee stated that in the communications with the represented person, the emails purportedly sent by him, were inconsistent with his verbal communications (by telephone), the latter being vague on detail and requiring prompting of the represented person to get him to respond. The Public Trustee stated that in a recent telephone conversation with the represented person, he was prompted by BM before discontinuing the call.
62 In a submission purportedly filed by the represented person on 30 September 2015, he stated that the Tribunal proceeding had affected his health and he recently found himself in a constant state of depression and sadness regarding the applications.
63 At the final hearing, the Public Advocate said that she had spoken briefly with the represented person prior to the hearing and that she found him unable to answer basic questions.
64 The represented person's presentation at the final hearing (the only hearing he attended), was consistent with the evidence of the Public Advocate. When asked, he was unable to articulate or explain how he would manage his funds. In his evidence it was difficult to obtain a coherent statement from him and he was often tangential in his responses. It was clear from his demeanour that he was heavily reliant on BM and to a lesser extent on JM, when responding to questions.
The question of the need for guardianship and administration orders
65 From the applications it appears the initial primary concern was that the represented person was not in receipt of any income and that he had purportedly given management of his finances to BM whom the applicant described as a 'drug addict'. Reference was made in the application to the allegation that BM had taken all of the represented person's funds, reported to be $10,000.
66 The applicant also described the represented person's other son, JM, as misusing illicit drugs.
67 The applicant expressed concerns that when the represented person's mother died he was set to inherit close to $500,000 which the applicant argued the represented person would not be able to manage.
68 In a submission purportedly made by the represented person in September 2015, he expressed outrage at the applications and stated that the process was causing him great distress. The represented person stated that he relied on his son BM who had been the person who had pointed out to him that his previous living conditions were unhealthy. The represented person stated that he lived with his son and that he could stay for as long as he needed. He said that BM was his attorney under an EPA and is guardian under an EPG and was sensitive to his religious beliefs.
69 The submission purportedly made by the represented person included copies of bank statements which showed details for a 'Goal Saver' account for two periods, the first beginning on 30 November 2014 with the balance of $17,641.22 and ending on 29 May 2015 with a balance of $9,789.24. The second statement begins on 26 June 2015 with an opening balance of $7,839.33 and ends on 1 September 2015 with a closing balance of $0.14.
70 The Public Trustee provided two reports to the Tribunal under the authority of the order made under s 65 of the GA Act. The first, dated 12 October 2015, stated that the represented person was employed as an office cleaner for 18 months up until June 2015. The represented person was said to have several bank accounts none of which were in credit. The represented person had a credit card debt amounting to $6,013.73. BM stated in his evidence that the credit card debt represented the accumulation of transactions over a period of time for the represented person and that it was the intention of the represented person to pay the credit card debt with his income tax refund.
71 The Public Trustee reported that the represented person had earlier received assistance from the tenancy worker to complete an application for a Newstart allowance from Centrelink. The application had been completed but not yet approved.
72 The Public Trustee stated that the he had completed the represented person's income tax return for 2014/2015 in early October 2015 and it was estimated that the represented person would receive a refund of $6,541.14.
73 The Public Trustee was also aware that the represented person was the alleged owner of a motor vehicle which had been apparently stolen and then found damaged. An insurance claim for the motor vehicle was currently with the insurance company. However, the Public Trustee had been advised that the vehicle was no longer in the represented person's name as it had been sold on 10 August 2015. The Department of Transport had no record of the motor vehicle being written off. BM had provided the Public Trustee with photos of the damage to the vehicle which were to be forwarded to the insurance company. The advice received by the Public Trustee on 4 December 2015 from the insurance company was that the represented person's vehicle had been assessed as a total loss and that they would pay him a settlement amount of $7,944.
74 The Public Trustee stated that the represented person was then residing in accommodation with Foundation Housing which had not received a payment from him since 28 August 2015 and consequently his rent arrears were $931.80.
75 The second report dated 2 December 2015 made reference to the 'vague' conversations the Public Trustee had had with the represented person (see above).
76 The Public Trustee stated that by December 2015 the represented person had been receiving the Newstart allowance. An income tax refund of $7,955.33 had been received.
77 The Public Trustee stated that he was applying for rental assistance from Centrelink on behalf of the represented person. In addition, the represented person would be eligible to receive the age pension in January 2016 when he attained the age of 65 years.
78 In a submission dated 7 December 2015, the Public Trustee stated that there had been several requests for extra money from the represented person by way of email. The Public Trustee was concerned, based on previous experience with the represented person, that the most recent request for funds of $250 was for the benefit of BM rather than the represented person (in his oral evidence BM accepted that he drafted the emails which were sent to the Public Trustee requesting funds).
79 It was reported by the Public Advocate that in her interview with the represented person on 7 October 2015 he had advised he had previously lived with his mother and at that time he had been working. He said he would help with jobs around the house and garden. He indicated that family relationships at the time with his mother and sister, DP, were not good. The represented person told the Public Advocate that he had been experiencing tightness in the chest and had decided to take early retirement. He said that after discussion with BM he had decided to move out of his mother's home and that BM found him his present accommodation of which he was happy. He said he was able to clean his room and did his own shopping sometimes with BM's assistance.
80 The represented person told the Public Advocate that his sons were not getting on and said that BM was his carer and upon whom he relied. He told the Public Advocate that he preferred BM to be the person to make all decisions for him when that was required.
81 The Public Advocate stated that the accommodation at Foundation Housing was temporary and an application was with public housing for ageappropriate accommodation. The Public Advocate was of the view that the represented person required assistance in the transition to independent living. She supported her appointment on the basis that she could use her expertise to ensure proper services would be put in place. She stated that there were concerns regarding BM and JM's ongoing involvement with the represented person and made reference to the state of the represented person's finances and the depletion of his bank accounts and the incurring of the credit card debt.
82 The Public Advocate stated that she acknowledged that BM had been instrumental in finding the represented person his current accommodation and also supported the represented person to visit his general practitioner. The Public Advocate accepted that the represented person appeared to have a very close relationship with BM and relied upon him to assist in decisionmaking.
83 The Public Advocate had spoken with SC, the represented person's exspouse. She stated that she continued to have an amicable relationship with the represented person. She acknowledged that the represented person and BM have a very close relationship. SC expressed a concern to the Public Advocate that both her sons had a history of illicit drug use and would place their own needs before the needs of the represented person.
84 The evidence of BM (and of JM who attended the final hearing only) was that the represented person is well supported by his sons, particularly BM, and that without the intervention of the applications, permanent accommodation would have been progressed to a greater extent than it was at the time of the final hearing.
85 BM submitted that the represented person was upset and distressed about the Tribunal proceeding and simply wanted to be left alone to be assisted by his sons to a level of independent living.
86 BM further submitted that the represented person had appointed him his attorney under the EPA and his guardian under the EPG and that clearly was an expression of the represented person's wish.
The decision of the Tribunal
87 A threshold question for the Tribunal is that of the represented person's capacity as referenced in s 43(1)(b) (guardianship) and s 64(1)(a) (administration) of the GA Act (see: 'The relevant legislation').
88 Because of the impact guardianship and administration orders have on a person's freedom of decision and action, clear and cogent evidence is required to rebut the presumption of capacity provided in s 4(3) of the GA Act (GC and PC [2014] WASAT 10 at [36]).
89 The Tribunal must assess all of the evidence before it, not just the medical evidence, but including the lay evidence and the presentation of the represented person. Whilst important, the medical evidence cannot be conclusive of all the issues. The Tribunal must make up its own mind (XYZ v State Trustees Ltd[2006] VSC 444 at [55] - [57]).
90 There is a conflict in the evidence about the represented person's capacity.
91 There is the evidence of the GP that the represented person has not been diagnosed with dementia, that he has psychological issues relating to significant life events and that his mood and functioning have improved markedly and are continuing to improve. This evidence is supported by BM.
92 I am not persuaded by the evidence of the GP because in my view there is an inconsistency in the assessments made by the GP that are before the Tribunal.
93 In contemporaneous reports from August 2015 and September 2015, there is in my view a not insignificant difference in the diagnosis and prognosis described in the Doctor's Guide and the August 2015 letter as against that of the Centrelink report. In the former we have a presently resolving anxiety/depression (a marked improvement in the last four weeks stated in the August 2015 letter) and in the latter we have a diagnosis of PTSD [Post Traumatic Stress Disorder] characterised by panic attacks and reduced concentration, and whilst considerable improvement is indicated, the GP places a timeframe of two years on this happening and in the interim assesses the represented person as unfit for work or study in the period to late December 2015.
94 In the final hearing the GP stated that when he had most recently seen the represented person on 2 February 2016, he had not undertaken any formal assessment and relied mainly on what the represented person told him.
95 The other evidence before the Tribunal, which I prefer, comes from different sources, particularly the sister, DP, the Public Advocate and the Public Trustee and is indicative of the represented person having a much greater functional impairment that is assessed by the GP.
96 The evidence from those sources is consistent with the represented person's presentation before the Tribunal, namely, that he was vague in his responses, tangential and required regular prompting.
97 There is clear evidence that since leaving his employment and his previous accommodation (his mother's home), the represented person has not initiated action regarding his bank accounts, his income entitlements and his longer term accommodation needs but rather this has initially been done by BM and later by the Public Trustee under the s 65 order.
98 When interviewed by the Public Advocate on 7 October 2015, the represented person was unable to recollect details of a meeting with his lawyer when the EPA and EPG were executed in July 2015 and did not remember the submission he purportedly made to the Tribunal at the end of September 2015.
99 The evidence shows that the represented person will not make a decision without BM and I am satisfied that in a practical sense BM (apart from the Public Trustee under the s 65 order), has been the effective decisionmaker.
100 The represented person has been unable to explain to the Tribunal how his bank funds were depleted in a relatively short time and how the debt on the credit card accrued.
101 I am satisfied on the evidence that the represented person has a mental disability which can be characterised as a psychological state of anxiety and depression which continues to have a significant impact on his daily functioning. PTSD cannot be discounted on the evidence but would likely require an assessment by a specialist practitioner.
102 The mental disability appears to affect the represented person's concentration, his ability to initiate and stay on task and his memory.
103 In my view the evidence shows that the represented person is very vulnerable to suggestion and influence in his precarious mental state.
104 I am satisfied that the represented person is currently incapable of looking after his own health and safety and is in need of oversight in the interests of his own health and safety.
105 I am also satisfied on the evidence that the represented person is currently unable to make reasonable judgments on matters that affect his accommodation and support, and matters relating to the protection and management of his estate.
106 The EPA and EPG, whilst expressing a wish of the represented person, cannot be used. The one qualified witness on both documents is insufficient, two witnesses are required (s 104(2)(a) and s 110E(1)(c) of the GA Act).
107 The EPA and EPG that are before the Tribunal are not less restrictive alternatives to the making of orders.
108 I am therefore satisfied that the represented person is in need of guardianship and administration orders.
109 I accept that it is the represented person's wish that his son, BM, make the necessary decisions for him.
110 I am not convinced that BM should be appointed the administrator of the represented person's estate or his guardian.
111 I am not satisfied that there has been a proper explanation given as to the diminution in the represented person's estate prior to the Public Trustee being given authority under s 65 of the GA Act, either by the represented person or BM, who in my view had effective control over the represented person's funds until the Public Trustee took control.
112 The Public Trustee has stabilised the represented person's estate.
113 The allegations made against BM (and JM) regarding their illicit lifestyle issues I take seriously given that the evidence has come from their mother, SC, whose evidence I give significant weight, and was not explicitly challenged.
114 I also take seriously the submission of SC that BM and JM would likely place their interests over those of the represented person.
115 I am satisfied these matters represent unacceptable risks to the represented person in the important personal and financial decisions that need to be made for him.
116 Taking all of this into account I am satisfied that it is in the represented person's best interests that the Public Trustee remain as the represented person's plenary administrator.
117 For the same reasons I am satisfied that it is the best interests of the represented person that the Public Advocate be appointed his limited guardian to make decisions concerning his accommodation and support services.
118 I am able to revoke the EPA pursuant to s 108(1a)(a) of the GA Act despite concerns as to its form (Re: C [2012] WASAT 50 at [56]).
119 I revoke the EPA.
120 There is not an application before me to revoke the EPG (s 110N(1)(a) of the GA Act) and there is not a mirror provision to s 108 for enduring powers of guardianship.
121 I have already noted that the EPG does not have the required number of qualified witnesses and therefore should not be accepted as being a valid instrument.
122 Depending on the acceptance of the guardianship order as the primary source of authority to make decisions for the represented person concerning his accommodation and support services, the Public Advocate may need to make application for revocation of the EPG.
123 The guardianship and administration orders are set for review in 12 months.
Orders
GAA 3856 of 2015:
124 The Tribunal declares that [LGM]:
(a) is incapable of looking after his own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to his person;
(c) is in need of oversight, care or control in the interests of his own health and safety; and
(d) is in need of a guardian.
- 1. The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be 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.
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3. This order is to be reviewed by 29 April 2017.
GAA 3861 of 2015:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b) is in need of an administrator of his estate,
- and the Tribunal orders that:
1. The order made on 2 September 2015 pursuant to section 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
2. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
3. The enduring power of attorney dated 27 July 2015 by which [LGM] appointed [BM] to be his attorney, is revoked.
4. This order is to be reviewed by 29 April 2017.
I certify that this and the preceding [125] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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