LK
[2017] WASAT 72
•8 MAY 2017
LK [2017] WASAT 72
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 72 | |
| 16/05/2017 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:485/2017 | 24 APRIL 2017 AND 5 MAY 2017 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 8/05/17 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Guardian and administrator appointed | ||
| B | |||
| PDF Version |
| Parties: | LK |
Catchwords: | Guardianship and administration Enduring power of attorney Capacity Nursing home charges Person responsible for treatment decisions Refundable accommodation deposit Centrelink Legal action to recover property Rules of the Supreme Court 1971 Order 70 of the Rules of the Supreme Court 1971 Guardian appointed Administrator appointed |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 44(b), s 45, s 64, s 68, s 68(1), s 68(3), s 69, s 80(3), s 80(4), s 84, s 97(1)(b)(iii), s 108(1)(a), s 110ZD, s 110ZD(4), s 110ZJ, Pt 9C Rules of the Supreme Court 1971 (WA), O 70, r 3(3), r 3(4) |
Case References: | Nil |
Summary | Applications for guardianship and administration orders were made in respect to LK pursuant to the Guardianship and Administration Act 1990 (WA). ,At the time of the applications LK was 90 years of age. She resided in a nursing home.,LK had two daughters DK and CG. She also had a son who did not participate in the Tribunal proceedings.,DK had been LK's primary carer prior to becoming unwell. CG had been estranged from LK but their relationship had been reestablished from about the middle of 2016. CG was considered by the nursing home to be the current primary point of contact for LK.,DK and CG were in dispute in respect to the nature of LK's estate, in particular a transaction in 2014 in which LK gifted her property to DK.,DK was LK's attorney under an enduring power of attorney made on 29 January 2008. In that instrument, LK declared that the EPA would only come into force upon a declaration by the Tribunal that she no longer had legal capacity.,That declaration had not yet been made by the Tribunal and there was not an application for such a declaration before the Tribunal.,The decision to gift her property to DK had a significant impact on the nursing home charges levied to LK such that she was subject to an increasing debt to the nursing home. In addition, there was the likelihood that Centrelink had not been notified of the gift which could result in an overpayment of LK's pension and a reduction in her ongoing pension entitlement.,CG adopted a position that consideration should be given to legal action being taken on LK's behalf to recover the property. She proposed to be appointed the administrator of LK's estate.,CG further proposed that she be appointed LK's guardian.,DK submitted that if an administrator were to be appointed it should be the Public Trustee because of the conflict between CG and DK.,A grandson of LK (DK's son) also proposed himself as guardian and administrator.,The Public Trustee submitted that in general it would only take legal action for a person if the person's estate was in a position to bear the costs of the action. The Public Trustee was also wary of taking any action for a person under funding by a third party.,The Tribunal was concerned about LK's security of tenure at the nursing home because of her increasing debt to the facility. There was also the need to clarify the decisionmaking regarding LK's ongoing medical treatment given the uncertainty of the operation of the 'person responsible' provisions of the Act. ,The Tribunal decided to appoint CG as LK's limited guardian.,The Tribunal further decided to appoint CG as LK's plenary administrator. The issue of the sale of the property and its effects on LK's current and future estate could not be underestimated and the daytoday management of her financial affairs could not be easily divorced from it.,The enduring power of attorney was revoked. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LK [2017] WASAT 72 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 24 APRIL 2017 AND 5 MAY 2017 DELIVERED : 8 MAY 2017 PUBLISHED : 16 MAY 2017 FILE NO/S : GAA 485 of 2017 BETWEEN : LK
- Represented Person
Catchwords:
Guardianship and administration - Enduring power of attorney - Capacity - Nursing home charges - Person responsible for treatment decisions - Refundable accommodation deposit - Centrelink - Legal action to recover property - Rules of the SupremeCourt 1971 - Order 70 of the Rules of the Supreme Court 1971 - Guardian appointed - Administrator appointed
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 44(b), s 45, s 64, s 68, s 68(1), s 68(3), s 69, s 80(3), s 80(4), s 84, s 97(1)(b)(iii), s 108(1)(a), s 110ZD, s 110ZD(4), s 110ZJ, Pt 9C
Rules of the Supreme Court 1971 (WA), O 70, r 3(3), r 3(4)
Result:
Guardian and administrator appointed
Summary of Tribunal's decision:
Applications for guardianship and administration orders were made in respect to LK pursuant to the Guardianship and Administration Act 1990 (WA).
At the time of the applications LK was 90 years of age. She resided in a nursing home.
LK had two daughters DK and CG. She also had a son who did not participate in the Tribunal proceedings.
DK had been LK's primary carer prior to becoming unwell. CG had been estranged from LK but their relationship had been reestablished from about the middle of 2016. CG was considered by the nursing home to be the current primary point of contact for LK.
DK and CG were in dispute in respect to the nature of LK's estate, in particular a transaction in 2014 in which LK gifted her property to DK.
DK was LK's attorney under an enduring power of attorney made on 29 January 2008. In that instrument, LK declared that the EPA would only come into force upon a declaration by the Tribunal that she no longer had legal capacity.
That declaration had not yet been made by the Tribunal and there was not an application for such a declaration before the Tribunal.
The decision to gift her property to DK had a significant impact on the nursing home charges levied to LK such that she was subject to an increasing debt to the nursing home. In addition, there was the likelihood that Centrelink had not been notified of the gift which could result in an overpayment of LK's pension and a reduction in her ongoing pension entitlement.
CG adopted a position that consideration should be given to legal action being taken on LK's behalf to recover the property. She proposed to be appointed the administrator of LK's estate.
CG further proposed that she be appointed LK's guardian.
DK submitted that if an administrator were to be appointed it should be the Public Trustee because of the conflict between CG and DK.
A grandson of LK (DK's son) also proposed himself as guardian and administrator.
The Public Trustee submitted that in general it would only take legal action for a person if the person's estate was in a position to bear the costs of the action. The Public Trustee was also wary of taking any action for a person under funding by a third party.
The Tribunal was concerned about LK's security of tenure at the nursing home because of her increasing debt to the facility. There was also the need to clarify the decisionmaking regarding LK's ongoing medical treatment given the uncertainty of the operation of the 'person responsible' provisions of the Act.
The Tribunal decided to appoint CG as LK's limited guardian.
The Tribunal further decided to appoint CG as LK's plenary administrator. The issue of the sale of the property and its effects on LK's current and future estate could not be underestimated and the daytoday management of her financial affairs could not be easily divorced from it.
The enduring power of attorney was revoked.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 Applications for guardianship and administration orders have been made in respect to LK (applications).
2 These applications are made pursuant to the Guardianship and Administration Act1990 (WA) (GA Act).
3 LK is 90 years of age. She resides in a nursing home.
4 LK has two daughters DK and CG. She also has a son who did not participate in the Tribunal proceedings.
5 DK and CG are in dispute in respect to the nature of LK's estate, in particular a transaction in 2014 in which LK gifted her property (property) to DK (property transaction).
6 DK is LK's attorney under an enduring power of attorney made on 29 January 2008 (EPA). In that instrument, LK declared that the EPA would only come into force upon a declaration by the Tribunal that she no longer has legal capacity.
7 That declaration has not yet been made by the Tribunal and there is not an application for such a declaration before the Tribunal.
8 The applications were referred to the Public Advocate for investigation and report: s 97(1)(b)(iii) of the GA Act.
9 The hearing on 24 April 2017 was attended by LK, DK (represented by counsel), CG, DG (spouse of CG), JG (grandson) and an investigator from the Office of the Public Advocate (Investigator).
10 The decision of the Tribunal was reserved.
11 On 2 May 2017, the Tribunal received a submission from CG through her solicitor making representations regarding the appointment of an administrator of LK's estate.
12 The Tribunal decided to reopen the hearing to consider the submission and to give the parties (including the Public Trustee) an opportunity to respond to it.
13 A further hearing was held on 5 May 2017. The decision of the Tribunal was again reserved.
Decision
14 On 8 May 2017, I decided to appoint CG as LK's limited guardian to make decisions concerning her accommodation and medical treatment.
15 I also decided to appoint CG as the plenary administrator of LK's estate and revoke the EPA.
16 My reasons follow.
The relevant legislation
17 The primary concern of the Tribunal is the best interests of LK: s 4(2) of the GA Act.
18 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of LK as expressed, in whatever manner, at the time, or as gathered from LK's previous actions: s 4(7) of the GA Act.
19 LK is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
20 Under s 43(1)(b) of the GA Act, the Tribunal cannot consider appointing a guardian for LK unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
21 Under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of LK unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
22 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.
23 If a finding of incapacity is made in respect to LK, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of LK can be met in a manner less restrictive of her 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.
24 If the Tribunal decides that LK 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.
25 As to the authority given to a guardian, if a limited order is sufficient to meet the needs of LK 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 LK: s 4(5) and s 4(6) of the GA Act.
The question of LK's capacity
26 The Tribunal has been provided with a number of medical, allied health and other reports which consider the issue of LK's capacity.
27 In chronological order the reports are as follows:
February 2014 Dr K, Consultant Geriatrician
28 The results of testing undertaken by Dr K, including a Mini Mental State Examination (MMSE) in which LK scored 26/30, were consistent with a diagnosis of mild cognitive impairment. However at that time, LK did not meet the criteria for a diagnosis of dementia. LK was assessed as having testamentary capacity but was considered not to be in a position to have fully understood the consequences of gifting her property to DK. Dr K commented that LK no longer managed her financial affairs, leaving those matters to DK under the EPA.
March 2016 My Aged Care Report
29 LK was said to be frail and was considered to be a high falls risk. She was said to be dependent upon DK for domestic matters, bill paying and personal care. Reference was made to a MMSE score of 24/30 with LK having deficits in memory. Despite this LK was considered cognitively intact, alert and oriented.
September 2016 Occupational Therapy assessment
30 Testing by the occupational therapist indicated LK as having a mild cognitive impairment with shortterm memory loss, part disorientation to time and reduced concentration. LK was able to provide an accurate social history and was considered to have intact reasoning and abstract thought.
January 2017 Dr K, Consultant Geriatrician
31 Dr K noted that since her 2014 report, LK had been admitted to a nursing home. Dr K assessed LK as demonstrating little insight into her care needs. LK was unable to recall the contents of her current will. On repeat cognitive testing, which involved a MMSE score of 19/30 and a Rowland Universal Dementia Assessment Scale (RUDAS) score of 18/30, LK was reported to have experienced a significant decline from the testing results of 2014. In the MMSE, LK lost points for orientation, recall and a reduction in language. In the RUDAS, LK lost points for recall, verbal fluency and judgment. Dr K assessed LK as having limited insight into her current financial assets and obligation and opined that LK had limited testamentary capacity. Dr K provided an updated diagnosis of mild to moderate cognitive impairment.
32 Dr K reported that LK's main request at the assessment, was that she return to live in the property. LK's main wish was to have all the children as ultimate beneficiaries of the property.
March 2017 Dr B, General Practitioner
33 It appears that Dr B did not have the benefit of Dr K's report from January 2017. He diagnosed LK as having a mild cognitive impairment based on a MMSE score of 22/30 undertaken on 22 February 2017. Dr B assessed LK as incapable in both personal and financial decisionmaking but capable of executing an EPA and Enduring Power of Guardianship (EPG).
February 2017 Nursing Home Facility Manager
34 The Facility Manager was of the view that LK was capable of making her own personal decisions, had 'fairly good insight' but would likely want family support. However, LK seemed unaware that she was required to pay care fees to the nursing home and also unaware that there was a debt to the nursing home and that her family were not assisting her in that regard.
Discussion on the question of LK's capacity
35 When I consider the medical and allied health evidence before the Tribunal, I am satisfied that LK has experienced a decline in her cognition and functioning since early 2014.
36 The earliest diagnosis was of a mild cognitive impairment made by Dr K in 2014, with testamentary capacity intact, but with an assessed impaired ability to fully understand the consequences of the property transaction.
37 I take the view, that the property transaction is a complex financial matter and am therefore satisfied that LK, even in 2014 likely experienced difficulties with complexity because of her cognitive decline.
38 The reports from 2016 suggest that, but for the effects of the mild cognitive impairment, LK remained relatively intact in her decisionmaking although she was experiencing problems with her memory.
39 It is in January 2017, that Dr K assessed a noticeable decline in LK's cognition from the earlier 2014 assessment. LK was assessed as having an increasing problem with her shortterm memory and deficits in her judgment. The diagnosis of LK was upgraded to mildmoderate cognitive impairment.
40 The assessment of Dr K, in my view is not inconsistent with the current assessment of the GP.
41 I give significant weight to the assessment of Dr K for two reasons. First, Dr K, as a consultant geriatrician, is a specialist medical practitioner in the area of old age and capacity assessments and secondly, Dr K has had the opportunity of testing LK over a period of time in 2014 and 2017, providing a longitudinal measure of the decline in LK's mental state.
42 The decline in LK's cognition and functioning has been exacerbated by the fact that she plays no part in the management of her financial affairs and appears not to question that management, or take a particular interest in it. In that regard LK is vulnerable to the uncritical decisionmaking of others.
43 I'm satisfied on the evidence that LK is a person for whom guardianship and administration orders could be made. She requires 24 hour care and supervision and is incapable of looking after her own health and safety and is in need of oversight and care in the interests of own health and safety. Because of her reduced mental state, I am satisfied that LK is unable to make reasonable judgments about important personal and financial decisions.
44 This finding is not disputed by the parties.
The applications
45 The applicant states that the initial trigger for the applications was twofold. First at the time of making the application, LK was in debt to the nursing home for her care fees of approximately $8,000 and assistance was not forthcoming from family members. Secondly, the applicant was aware that DK was very unwell and she was not responding to attempted phone contact. The applicant said that the nursing home requires someone to be a point of contact for issues that might arise in respect to LK.
46 The applicant states that the daughter CG has been visiting LK regularly and has been very helpful.
47 In her oral evidence, the applicant states that the statement of income and assets required to be filed with Centrelink when a person is admitted to a nursing home, remains outstanding for LK. As a consequence, LK is likely being charged fees for her residency at the nursing home which she may otherwise not be required to pay. For example, it appears she has been charged with a Refundable Accommodation Deposit (RAD) of $220,000 on the basis that she is still considered to be the owner of the property. The RAD remains unpaid and as a consequence LK is subject to a daily accommodation charge of $36.22 which is effectively an interest charge on the unpaid RAD.
48 The applicant states that part of LK's debt has been paid and in addition her pension has been redirected to the nursing home. However, the pension is currently insufficient to meet the ongoing charges of the daily bed fees and the daily accommodation charge, which means that the debt continues to grow and currently stands at $3,980.
49 The applicant states that she has been in contact with LK's grandson, JG, in lieu of being able to speak with DK. She has spoken with JG in regard to the debt to the nursing home and is aware that he is organising some dental treatment for LK. The applicant says her contact otherwise is with CG who regularly sees LK.
The daughter, DK
50 Although present at the hearing, DK was unable to directly participate due to her illness, but was able to provide instructions to her counsel.
51 Through her counsel, DK submits that in light of the most recent report of Dr K evidencing LK's decline in cognition and functioning, orders would be appropriate.
52 Because of her illness, DK has not been able to assist LK as she has previously done and has been unable to complete LK's income and assets information for Centrelink.
53 However it is the wish of DK that she continues to have input into LK's medical treatment and healthcare.
54 DK submits that her son and LK's grandson, JG, has been providing LK with assistance and should be considered for the appointment as her guardian and administrator.
The grandson, JG
55 JG says that since DK has become unwell he has ensured that LK's health needs have been met and has organised some dental care.
56 JG states that CG has only recently reestablished a relationship with LK and previously did not assist at all with LK's health and welfare.
57 JG said that he would consent to his appointment as LK's guardian and administrator although accepts there is a potential for a conflict of interest given his relationship to DK and the issue regarding the property transaction.
The daughter, CG
58 CG acknowledges that she was estranged from LK for some years but since the middle of 2016 states that their relationship has been reestablished.
59 CG states that she visits LK two to three times per week and discusses matters with the applicant regarding LK's medical needs and other matters. She says that she takes LK for long walks and engages with her socially.
60 CG states that JG has made promises about assisting LK which he has not kept.
61 CG says that no action has yet been taken in the courts regarding the property transaction.
62 CG says that with her nursing background she is well placed to deal with LK's medical needs. She says that although she has no relationship with DK, if she were appointed guardian she would place LK's interests above the conflict and would undertake to contact DK should a serious medical matter arise.
DG, spouse of CG and son-in-law of LK
63 DG submits that CG is the appropriate guardian for LK, as she is best qualified to undertake that role. He accepts that LK will require ongoing nursing home care.
64 DG submits that the Public Trustee should be appointed administrator of LK's estate.
The Public Advocate
65 The Investigator interviewed LK by telephone on 20 April 2017 (see below).
66 The Investigator submits that there is no current need for the appointment of a guardian for LK as informal measures are working effectively. LK currently resides in a nursing home and reports she is very happy there although she would consider returning to the property if it became available to her.
67 LK is said to have told the Investigator that her daughter CG is currently making treatment decisions for her and the Investigator submits that CG should be permitted to continue to make treatment decisions under the 'Persons Responsible' provisions of the GA Act: Part 9C and s 110ZJ.
68 The Investigator states that central to the applications before the Tribunal is the property transaction. The Public Advocate filed a copy of a transfer of land document with the Tribunal showing that the property was transferred to DK on 14 January 2014, by way of a gift.
69 The Investigator states that her current understanding is that Centrelink is investigating the potential impact of the property transaction on LK's entitlement to the age pension.
70 The Investigator states that there appears to be no one person taking responsibility for the payment of LK's nursing home fees, although it is noted that some payment has been made since the applications were made.
71 The Investigator submits that the EPA cannot be considered a less restrictive alternative to the making of an administration order, given the conflict of interest in which DK finds herself regarding the property transaction.
72 The Public Advocate supports the appointment of the Public Trustee as the administrator of LK's estate.
The views and wishes of LK
73 LK was interviewed by the Investigator on 20 April 2017 by telephone. The Investigator says that LK presented as cooperative, warm and friendly and who readily responded to questions put to her.
74 In the interview, LK frequently returned to the topics of the property and her wish that her three children share her property and that she trusts her daughter CG to manage her affairs and care for her, as she has trusted her other daughter DK to do so in the past but who is currently too unwell to continue.
75 Relevantly, LK told the investigator that she hadn't properly considered the effect of the property transaction when it was made in 2014 and that if she had the opportunity she would like to return to her home, although she is happy in her current accommodation.
76 LK told the Investigator that she does not know who is paying her nursing home fees but is aware that fees need to be paid, and trusts that one of the children will deal with the matter.
77 At the hearing, when asked whom she would choose if she needed somebody to assist her, LK says that any of her children could help. She considers herself to be happy in the nursing home. She wants the property shared between her three children.
Other material available to the Tribunal
78 Prior to the hearing on 24 April 2017, the Tribunal was provided with additional material from the Public Advocate and from DK's legal representative.
79 Relevantly, this included a copy of a letter sent by a legal firm to DK dated 7 October 2016 and purportedly acting under the instructions of LK. The letter demanded that DK execute a transfer of land, to transfer her legal interest in the property to LK within a certain time period and failing which, there would be an expectation that instructions would be given to commence legal proceedings.
80 The documents also contained a copy of an email by DG to the Commonwealth Government dated 13 November 2016, noting that CG had submitted the form entitled 'Permanent Residential Aged Care Request for a Combined Assets and Income Test' to Centrelink on 22 August 2016, in which it had been advised that LK no longer owned the property because it had been gifted to DK in 2014, but allegedly not disclosed to Centrelink.
81 DG expressed concern that notification had not yet been received from Centrelink.
Submission from CG's legal representatives (legal firm) subsequent to the hearing on 24 April 2017 and the responses of the parties
82 The legal firm states it was approached by CG during the latter part of 2016 in relation to the property and the property transaction.
83 The legal firm states that since that time it has been in the process of determining whether or not LK has the capacity to instruct to issue legal proceedings.
84 The legal firm states that it has been in touch with the Public Trustee and reports it has been advised that if appointed the administrator of a person's estate, the Public Trustee is likely only to initiate legal proceedings if the person's estate has sufficient funds to pay the legal costs of any action.
85 As a consequence, the legal firm has put to the Tribunal that the most appropriate person to act as next friend for LK, in the anticipated legal proceedings would be CG, and proposes that CG be appointed in that role and that the Public Trustee otherwise manage the remainder of LK's estate.
86 In oral submissions, counsel for CG states that investigations regarding the property transaction are well advanced and the position has been reached where action can be commenced.
87 Counsel states that CG has been made aware of her obligations as next friend including the potential for liability to costs.
88 Counsel submits that were the Public Trustee appointed to consider the property transaction, it would likely involve duplication of expenses and duplication of the work that has already been completed.
89 Counsel states that CG will now consent to her appointment as LK's plenary administrator.
90 The Public Trustee has filed a written submission with the Tribunal.
91 Relevantly, the Public Trustee submits that given what it currently knows about LK's financial circumstances, the Public Trustee would be unlikely to take legal proceedings on behalf of LK to recover the property, if it were appointed as plenary administrator of her estate. However, the Public Trustee could not categorically rule it out.
92 The Public Trustee states that it would be very wary of entering into any arrangement where it would take legal proceedings on the basis of funding promised by a third party.
93 The Public Trustee refers to Order 70 of the Rules of the Supreme Court 1971 (WA) (Rules) and submits that the application of Order 70 would mean that if, as proposed by counsel for CG, CG is appointed administrator with the specific role of undertaking action in respect to the property transaction and the Public Trustee is appointed administrator for the balance of LK's estate, then CG would likely be appointed as next friend of LK. The Public Trustee refers to the somewhat ambiguous nature of sub rules 3(3) and 3(4) in the event the Public Trustee and another person are appointed administrators with separate functions.
94 In oral submissions MB, representing the Public Trustee, states that if for example the Public Trustee, as administrator for LK, was to determine that the evidence overwhelmingly supported action in respect to the property transaction, action would not necessarily be undertaken. Other factors including, critically, the inherent risks of any legal action and cost factors relative to the ability of the estate to pay, would continue be considered in the decision whether or not to proceed.
95 Counsel for DK submits that if by consenting to be appointed administrator, CG has implicitly agreed to fund any action in respect to the property transaction, then that funding could be directed to the Public Trustee if the latter were appointed LK's administrator.
96 MB says that the Public Trustee does not generally support thirdparty funding of legal action because of the concerns that the funding party, may try to take control of the direction of the action by virtue of controlling the funding for it.
97 MB expresses a concern that once an action is commenced for a person under a disability, court approval is required to discontinue that action (should for example, funds run out) and in that situation costs will likely be an issue.
98 The principal submission of DK is that because of the acrimonious relationship between her and CG, there is an inherent risk that CG will pursue the action regarding the property transaction with a personal agenda rather than objectively considering the best interests of LK. It is submitted that this situation would not be in LK's best interests and it would be much more appropriate for the Public Trustee to be appointed administrator of LK's estate.
Discussion on the need for a guardian and administrator
99 It is generally accepted that LK is well cared for in the nursing home. She says that she is happy there.
100 Despite this LK has consistently expressed a wish to return to her home, however, the indications are that even if the property became available, the high care needs of LK could not be met in the home environment.
101 However, the ongoing consequences of the property transaction and any legal action that may be taken in respect to it, may impact on the security of LK's accommodation in the nursing home, given that she has an increasing debt with the facility. In the circumstances, I am concerned that LK's security of tenure in the nursing home cannot be guaranteed.
102 I am therefore satisfied that there is current need for the appointment of a guardian to make decisions about LK's ongoing accommodation needs.
103 LK's daily care needs are met by the nursing home. There is no evidence before the Tribunal to indicate that she is in need of additional services.
104 I am satisfied therefore that there is no current need for the appointment of a guardian to make decisions about the services to which LK should have access.
105 There is provision in the GA Act for a person in a hierarchy of persons, to make treatment decisions for a patient who is unable to make reasonable judgments in respect of any treatment proposed to be provided to them.
106 Part 9C of the GA Act and in particular S110ZD, sets out the way in which treatment decisions can be made without the need for a guardianship appointment.
107 Treatment is defined in s 3 of the GA Act as medical or surgical treatment, including a lifesustaining measure and palliative care, dental treatment or other care. A treatment decision in relation to a person means a decision to consent or refuse consent to the commencement or continuation of any treatment of the person.
108 In the hierarchy of person's available to LK, it would be a child of LK who could potentially be the 'person responsible' (person responsible) to make her treatment decisions. That is, a child of LK, in LK's circumstances would be the person highest in the hierarchy set out in s 110ZD(4) of the GA Act.
109 Any person responsible must be of full legal capacity, be reasonably available and be willing to make treatment decisions in respect to LK.
110 It appears to be the case that prior to her becoming unwell, DK made the necessary treatment decisions for LK as the person responsible.
111 There is currently some doubt as to who currently has taken control of the treatment decision process. JG has said that he has organised dental treatment and CG says that she deals with LK's health and care matters with the nursing home.
112 The applicant accepts CG as the contact person for LK's health needs.
113 The current wish of LK is that CG deals with her health matters on the understanding that DK cannot do so.
114 In all the circumstances, I consider it to be in LK's best interests that a guardian be appointed to provide certainty in the decisionmaking around her medical needs. The person responsible provisions of the GA Act, it seems to me, do not provide sufficient clarity in LK's situation for those provisions to be used effectively and efficiently.
115 JG has proposed himself as LK's guardian. Under s 44(b) of the GA Act, a person proposed as guardian cannot be in a position where their interests conflict or may conflict with the interests of the person. The nature of any conflict is not further defined in the GA Act.
116 Whether or not it can be reasonably argued, that JG is in a position of a conflict of interest because of the matter of the property transaction, I would in any case appoint CG as LK's guardian for treatment purposes for three reasons. First, if the person responsible provisions of the GA Act were able to operate, then CG would sit above JG in the hierarchy. Secondly, CG has a nursing background and can therefore direct her knowledge of medical matters to treatment decision for LK and thirdly, it is LK's current wish that CG be involved in this way.
117 I therefore appoint CG as limited guardian of LK to make her treatment decisions. In doing so, I accept the undertaking given by CG that should any significant medical matter arise for LK, then despite the conflict with DK, she will alert DK to LK's circumstances at the time.
118 Having appointed CG as guardian for treatment purposes, I should also appoint her as guardian to make any accommodation decision for LK if that becomes necessary.
119 I am satisfied that LK is in need of an administrator.
120 I accept the evidence that LK's estate is currently in a parlous state. It seems to be the case that Centrelink was not notified of the property transaction in 2014, which may mean that LK becomes liable for an overpayment of her pension and further that she may continue to be eligible for less than the full rate of the pension.
121 LK's financial indebtedness to the nursing home and the status of her asset position in regard to the calculation of the nursing home fees that are set by Centrelink, need to be clarified.
122 There is then the critical matter of the property transaction and what to do about it. The evidence is that CG and DG have been at the forefront as to whether action should be taken to recover the property for LK.
123 These are significant matters that apart from the ordinary daytoday management of LK's estate need resolution.
124 The issues are clear; the question is who should be appointed as administrator of LK's estate to take control of these matters.
125 JG cannot be appointed as the administrator of LK's estate. He is in an evident conflict of interest as DK's son when considering the property transaction.
126 I am not persuaded by the submission of DK that if CG is appointed as administrator, she will pursue DK on the basis of a personal agenda. Whilst it is unfortunate when family members consider taking legal action against one another, there is no evidence in the particular circumstances of CG that indicate personal animosity to DK is the driving force.
127 The evidence of the applicant is that CG is well regarded by her, and it could just as easily be said that CG will consider taking action in regard to the property transaction because she perceives a wrong that she wants to correct for LK, particularly in a situation where LK's current financial situation is extremely uncertain, and as I have already mentioned there is some risk to her ongoing accommodation.
128 Any administrator must act in the represented person's best interests and can be held to account if it is found that this is not the case (see for example s 80(3) and (4) of the GA Act).
129 I accept the submission of MB that it is not in LK's best interests to have two administrators appointed with separate tasks. The significance of the property transaction and its effects on LK's current and future estate cannot be underestimated and the daytoday management of her financial affairs cannot be easily divorced from it.
130 Section 68 of the GA Act provides the Tribunal with some guidance in the appointment of an administrator.
131 Unless there is evidence to the contrary, which in my view there is not, I must accept CG's intentions in her proposal to be appointed administrator of LK's estate. I have already done so in respect to appointing her as LK's guardian.
132 I am satisfied on the evidence before me that CG will act in LK's best interests and is otherwise suitable to act as administrator of her estate. She is compatible with LK as her daughter, and LK has expressed her wish that CG be involved in her decisionmaking. I am satisfied that CG will be able to perform the functions of an administrator: s 68(1) and (3) of the GA Act.
133 I will therefore appoint CG as the plenary administrator of LK's estate.
134 Having made the administration order, I will revoke the EPA: s 108(1)(a) of the GA Act.
135 Both the guardianship and administration orders will be set for review in five years: s 84 of the GA Act.
Orders
The Tribunal declares that the represented person, LK;
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b) is in need of an administrator of her estate;
(c) is incapable of looking after her own health and safety;
(d) is unable to make reasonable judgments in respect of matters relating to her person;
(e) is in need of oversight, care or control in the interests of her own health and safety; and
(f) is in need of a guardian;
and the Tribunal orders that:
1. CG is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. The enduring power of attorney dated 20 January 2008 by which LK appointed DK to be her attorney, is revoked.
3. CG 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) Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.
4. The administration and guardianship orders are to be reviewed by 8 May 2022.
I certify that this and the preceding [135] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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