LS
[2016] WASAT 89
•22 JULY 2016
LS [2016] WASAT 89
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 89 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:34/2016 | 8 MARCH 2016 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 22/07/16 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Guardians appointed Administrators appointed Enduring power of attorney and enduring power of guardianship revoked | ||
| B | |||
| PDF Version |
| Parties: | LS |
Catchwords: | Guardianship and administration Represented person has dementia and is incapable of making personal and financial decisions Enduring power of attorney Enduring power of guardianship Represented person separated from spouse for nearly 30 years Divorce considered by enduring guardian Property settlement considered by attorney Contact with represented person Conflict and division in the represented person's family because of the actions of the enduring guardian and attorney Public Trustee appointed as limited administrator to determine extent of represented person's estate Public Advocate appointed as limited guardian to determine the represented person's contact with others Enduring power of attorney and enduring power of guardianship revoked Former attorney and enduring guardian appointed administrator and guardian for the balance of the represented person's personal and financial decision-making |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 109(1)(a), s 109(1)(b), s 109(1)(c), s 110N(1)(a) |
Case References: | KS [2008] WASAT 29 |
Summary | LS, an 82yearold woman, had been diagnosed with dementia and lived in her home with support.,LS had four children, GS and DS, her sons, and AJS and ALS, her daughters.,LS had been separated from her spouse for about 30 years. They were not divorced and had not entered into a property settlement.,LS had made an enduring power of attorney and enduring power of guardianship appointing her son, GS, as guardian and GS and DS as joint and several attorneys. GS operated the enduring power of attorney. ,DS, supported by AJS, made a number of applications in respect to LS under the Guardianship and Administration Act 1990 (WA).,DS and AJS were concerned that GS had embarked on action to initiate a property settlement and a divorce. They said that was not what LS would have wanted and in any case her spouse (their father) was still concerned for her welfare and indicated a willingness to assist her financially should she need to go into care.,DS and AJS also said that they were inhibited in having contact with LS because of GS' attitude and behaviour. They felt as if they needed his permission to visit their mother.,DS sought the appointment of a guardian and administrator and the revocation of the enduring power of attorney and enduring power of guardianship. He also sought orders requiring GS to file copies of records and accounts of the transactions undertaken in his role as attorney.,GS opposed the applications. He said that it was his role to ensure LS' financial security given her increasing care needs. He rejected the assertion of DS and AJS that they needed his approval to visit LS. He only asked that they let him know when they intended to visit so he could be sure of LS' safety.,GS was supported by ALS.,The property settlement action by GS had caused a significant rift in the family because the children of LS had proceeded over the years on the basis of a presumption that things remain as they are. This seemed also to have been the position of LS and the matter was being raised now in circumstances where she was no longer capable of deciding 'yes' or 'no' to the action.,The proceedings had further exposed tensions and conflicts between the children of LS as to the relationship they had with her manifesting in the question of how contact with her should take place. ,The Tribunal found that it was reasonable to consider the future financial needs of LS in the context of the questions, what her estate consisted of and what would she have at her disposal to meet her future needs, given she had dementia and that her care needs (and costs) would increase over time.,The Tribunal found that the exploration of the extent of LS' estate could not be an exercise undertaken by a family member. The issue was far too divisive and required someone to look into the matter in an objective way, taking into account the family history and the views of all family members who clearly had strong opinions. ,The Public Trustee was appointed limited administrator to undertake this role and GS was appointed limited administrator to continue to manage the balance of LS' estate. The enduring power of attorney was revoked. ,The Tribunal accepted the evidence of DS and AJS that contact with LS was fraught and inhibited by the current relationship with GS and appointed the Public Advocate as limited guardian to determine contact and the temporary accommodation arrangements that may flow from the exercise of that function. GS was appointed guardian for the balance of LS' personal decision needs. The enduring power of guardianship was revoked. ,The applications concerning the enduring power of attorney were dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LS [2016] WASAT 89 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 8 MARCH 2016 DELIVERED : 22 JULY 2016 FILE NO/S : GAA 34 of 2016 MATTER : LS
- Represented Person
Catchwords:
Guardianship and administration Represented person has dementia and is incapable of making personal and financial decisions Enduring power of attorney Enduring power of guardianship Represented person separated from spouse for nearly 30 years Divorce considered by enduring guardian Property settlement considered by attorney Contact with represented person Conflict and division in the represented person's family because of the actions of the enduring guardian and attorney Public Trustee appointed as limited administrator to determine extent of represented person's estate Public Advocate appointed as limited guardian to determine the represented person's contact with others Enduring power of attorney and enduring power of guardianship revoked Former attorney and enduring guardian appointed administrator and guardian for the balance of the represented person's personal and financial decision-making
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 109(1)(a), s 109(1)(b), s 109(1)(c), s 110N(1)(a)
Result:
Guardians appointed
Administrators appointed
Enduring power of attorney and enduring power of guardianship revoked
Summary of Tribunal's decision:
LS, an 82yearold woman, had been diagnosed with dementia and lived in her home with support.
LS had four children, GS and DS, her sons, and AJS and ALS, her daughters.
LS had been separated from her spouse for about 30 years. They were not divorced and had not entered into a property settlement.
LS had made an enduring power of attorney and enduring power of guardianship appointing her son, GS, as guardian and GS and DS as joint and several attorneys. GS operated the enduring power of attorney.
DS, supported by AJS, made a number of applications in respect to LS under the Guardianship and Administration Act 1990 (WA).
DS and AJS were concerned that GS had embarked on action to initiate a property settlement and a divorce. They said that was not what LS would have wanted and in any case her spouse (their father) was still concerned for her welfare and indicated a willingness to assist her financially should she need to go into care.
DS and AJS also said that they were inhibited in having contact with LS because of GS' attitude and behaviour. They felt as if they needed his permission to visit their mother.
DS sought the appointment of a guardian and administrator and the revocation of the enduring power of attorney and enduring power of guardianship. He also sought orders requiring GS to file copies of records and accounts of the transactions undertaken in his role as attorney.
GS opposed the applications. He said that it was his role to ensure LS' financial security given her increasing care needs. He rejected the assertion of DS and AJS that they needed his approval to visit LS. He only asked that they let him know when they intended to visit so he could be sure of LS' safety.
GS was supported by ALS.
The property settlement action by GS had caused a significant rift in the family because the children of LS had proceeded over the years on the basis of a presumption that things remain as they are. This seemed also to have been the position of LS and the matter was being raised now in circumstances where she was no longer capable of deciding 'yes' or 'no' to the action.
The proceedings had further exposed tensions and conflicts between the children of LS as to the relationship they had with her manifesting in the question of how contact with her should take place.
The Tribunal found that it was reasonable to consider the future financial needs of LS in the context of the questions, what her estate consisted of and what would she have at her disposal to meet her future needs, given she had dementia and that her care needs (and costs) would increase over time.
The Tribunal found that the exploration of the extent of LS' estate could not be an exercise undertaken by a family member. The issue was far too divisive and required someone to look into the matter in an objective way, taking into account the family history and the views of all family members who clearly had strong opinions.
The Public Trustee was appointed limited administrator to undertake this role and GS was appointed limited administrator to continue to manage the balance of LS' estate. The enduring power of attorney was revoked.
The Tribunal accepted the evidence of DS and AJS that contact with LS was fraught and inhibited by the current relationship with GS and appointed the Public Advocate as limited guardian to determine contact and the temporary accommodation arrangements that may flow from the exercise of that function. GS was appointed guardian for the balance of LS' personal decision needs. The enduring power of guardianship was revoked.
The applications concerning the enduring power of attorney were dismissed.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
KS [2008] WASAT 29
Introduction
1 LS is an 82yearold woman diagnosed with dementia, living in her home with support.
2 LS has four children, GS and DS, her sons, and AJS and ALS, her daughters. ALS lives in the United Kingdom.
3 LS has been separated from her spouse for about 30 years. They are not divorced and have not entered into a property settlement.
4 On 17 October 2011, LS made an enduring power of attorney (EPA) appointing DS and GS as her joint and several attorneys.
5 On 30 January 2015, LS made an enduring power of guardianship (EPG) appointing GS as her enduring guardian.
6 Both the EPA and EPG were witnessed by LS' general practitioner.
7 In January 2016, DS made six applications in respect to LS pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act). The applications are for the making of:
• a guardianship order;
• an administration order;
• an order requiring GS as attorney under the EPA to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by GS of dealings and transactions made by him in connection with the EPA;
• an order requiring such records and accounts to be audited by an auditor appointed by the Tribunal and requiring a copy of the report of the auditor to be furnished to the Tribunal and the applicant;
• an order seeking revocation of the EPA or the varying of its terms; and
• an order seeking revocation of the EPG.
8 The applications were heard on 8 March 2016. The hearing was attended by LS, GS, DS, AJS and ALS by telephone from the United Kingdom, and a representative from the Office of the Public Advocate (Public Advocate).
9 The decision was reserved.
Decision
10 I have decided to revoke the EPA and EPG and in substitution of those instruments make guardianship and administration orders.
11 I have decided to appoint GS as plenary guardian of LS except for the function given to the Public Advocate. The Public Advocate is appointed limited guardian to decide the contact LS should have with others and the extent of that contact and to decide the temporary accommodation arrangements that may flow from the exercise of that function.
12 I have decided to appoint GS as administrator of the estate of LS except for the function given to the Public Trustee. The Public Trustee is appointed limited administrator to decide whether any action should be taken in respect of LS' interests in the marital assets of her and her spouse and if considered to be in her best interests to take whatever action is necessary to secure that interest as part of her estate under the authority of GS as administrator.
13 The orders are set for review in two years.
14 The applications made under s 109 of the GA Act are dismissed.
The relevant legislation
15 The primary concern of the Tribunal is the best interests of LS: s 4(2) of the GA Act.
16 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of LS as expressed, in whatever manner, at the time, or as gathered from LS' previous actions: s 4(7) of the GA Act.
17 LS is presumed to be capable of looking after her own health and safety; making reasonable judgements 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.
18 Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for LS 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 about 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.
19 Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of LS 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.
20 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.
21 If a finding of incapacity is made in respect to LS, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of LS can be met in a manner less restrictive of her freedom of her 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.
22 If the Tribunal decides that LS 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.
23 As to the authority given to a guardian, the GA Act states that if a limited order is sufficient to meet the needs of LS 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 LS: s 4(5) and s 4(6) of the GA Act.
24 The Tribunal has a general supervisory jurisdiction in respect of enduring powers of attorney: KS [2008] WASAT 29 at [26].
25 The Tribunal may make an order revoking an enduring power of guardianship: s 110N(1)(a) of the GA Act.
The question of LS' capacity
26 The Tribunal has before it a report from LS' GP of six years (the same GP who witnessed the EPA and EPG).
27 The GP states that LS was diagnosed with dementia in 2011 and suffers from memory and cognitive impairment. LS is said to lack insight into her care and financial needs. The GP opines that she is incapable of making reasonable decisions concerning her personal health care, living situation and financial affairs. He also assesses her as now being incapable of executing an enduring power of attorney.
28 It is common ground that LS lacks capacity. GS states that he acts on his authority under the EPA and EPG.
29 I am satisfied on the evidence and declare that LS is incapable of looking after her own health and safety, is in need of oversight, care or control in the interests of her own health and safety and by reason of her dementia is unable to make reasonable judgments in respect of matters relating to her person and her estate.
LS' estate
30 A statement filed by GS shows LS' estate as comprising a joint tenancy with her spouse in the property in which she lives (property); bank funds of about $128,000, miscellaneous furniture and old motor vehicles (scrap value). She is in receipt of the age pension and interest income on her bank funds.
The evidence and submissions of DS and AJS
31 There appears to be two principal concerns expressed by DS and AJS. The first relates to their contact with LS and the allegation that GS is isolating LS from their respective families. DS puts it this way:
… This has come about through [GS]'s disdain for any efforts or suggestions to involve [LS] with [service provider] and his domineering and dismissive attitude (T:10; 08.03.16).
32 DS says that he is reluctant to visit LS because GS might be present and make the visit uncomfortable. He says that he feels as if he needs to obtain GS's permission before visiting LS.
33 DS states that he was offended by the tone of a message (email) received from GS that LS should go to Cervantes for the most recent Christmas when she had spent Christmas at his place for the past 15 years.
34 DS contends that GS is not a fit and proper person to act as LS' guardian under the EPG.
35 AJS states that the applications made by DS are a response to the distress within the family and GS's attitude in that he does not appear to be able to work collaboratively with some of his siblings.
36 AJS states that she and GS have had many altercations over the years (including being physically assaulted by GS), and that he has continually refused her offers of assistance in the care of LS. AJS says:
… I feel very sad that I can't spend time with my mum anymore because I have to be excessively accountable to [GS] who makes me feel like I'm the hired help. And I just feel that [GS]'s control of the situation has become absolute, and I can't work with him (T:49; 08.03.16).
37 The second concern involves GS' management of LS' estate under the EPA.
38 Although appointed joint and several attorneys with GS, DS states he has left the management of LS' finances to GS because he has taken the view that there was no point in having two people involved.
39 DS states that he asked GS allow him to inspect the records kept as the attorney. He says that initially, he wanted to know why GS was asking family members for a contribution to the cost of additional care for LS, when GS was away. DS says that he believed that LS' pension should be sufficient to pay for the costs of care.
40 DS states that GS refused to allow him access to the documents and he then used his authority under the EPA to approach LS' bank. He has perused the bank records and accepts they 'seem fine' and that he is not concerned there has been any misappropriation by GS. He states:
… looking at the accounts now, I don't see it's necessary to have a full audit unless there are some accounts missing that aren't included … (T:18; 08.03.16).
41 DS says that he made the applications mainly because of GS's decision to use his authority to arrange a divorce for LS and to seek a property settlement with his father (father or spouse).
42 DS states that GS 'basically threatened' their father in respect to the divorce and property settlement and this is contrary to the wishes of LS expressed over a long period of time.
43 DS questions the motives of GS in pursing this matter:
… whether it's for personal gain through his obvious desire to get control of mum's house … (T:17; 08.03.16).
44 AJS states that even though GS believes that their father no longer cares for LS, she knows that he does care about her emotional, social and financial wellbeing. She says that although separated from LS, their father did not want this to happen. Their father was sent to Port Hedland to work five years before his retirement and 'mum didn't really welcome him back' (T:48; 08.03.16).
45 AJS' initial submission was for DS to be appointed the guardian and administrator for LS and that the EPA and EPG be revoked. DS consented to his appointment in the first instance, however after hearing the evidence and submissions of the Public Advocate, both DS and AJS changed their views and now support the Public Advocate's proposal (see below).
The evidence and submissions of GS and ALS
46 GS states that he takes issue with the assertions of his siblings that they feel isolated from LS. He says his communications have been directed at seeking their help in providing care and support for LS.
47 GS says that he attends to LS on a daily basis and that his siblings' visits are infrequent (although AJS states that in 2015 she spent approximately 50 nights with LS).
48 GS states that he has never instructed AJS not to stay at LS' home but the context has been the expectation that she would 'behave' herself or 'modify [her] behaviour' otherwise she should stay somewhere else (T:60; 08.03.16).
49 GS states that he has not required his siblings to obtain permission from him to visit LS by using his authority under the EPG. He says that he has asked them to advise him before any intended visit to ensure LS' safety. He states he would be concerned if he found LS not at home and not knowing that one of his siblings had taken her on an outing.
50 GS states that he has actively pursued his role as the attorney for LS from about the time the EPA was made. He says that he has kept extensive records and has been honest in his dealings with the estate of LS.
51 GS states that he finds DS' allegation that he is trying to get hold of LS' property, ridiculous. He says he has a substantial property portfolio in his own right.
52 As regards to seeking financial contributions from his siblings towards the cost of LS' care, GS states that after he sought advice he was aware that it was appropriate to pay for that care from the estate of LS, however he formed a view that because she only receives the pension, she should not pay for all her care. GS states that he has received a contribution from ALS.
53 GS says that he was reluctant to initially provide DS access to the EPA records because DS, in his view, betrayed confidences by disclosing to their father, LS' financial and personal situation. However, he did offer for DS and AJS to view the records on his computer where the majority are kept.
54 GS accepts that due to the joint and several character of the EPA and the conflict with DS, the EPA should no longer operate. He submits that he should be appointed LS' sole administrator to continue to manage her estate.
55 In respect to his action to seek divorce and property settlement for LS, GS states:
That was brought about by the fact that my mother and father separated for 29 years. They have never either formally or informally agreed on any property settlement. My father recently sold his house in [deleted] for $2.5 million, so he has in excess, if you include his half share of the [property] in excess of $3.2 million in cash and assets. Mum has basically her half share in the house, which is $500,000 or so, give a bit, plus a small amount of money in the bank. In addition, because a joint tenancy, she has an asset or a half share in an asset that she can't realise.
The issue of the ownership of [the property] has festered around for years. Now, it's something that needs – I feel this issue needs to be resolved and what I'm trying to do here is resolve mum's longterm financial and personal security by sorting out this issue. And it wasn't a step that was taken lightly. I haven't actually yet commenced divorce proceedings or property settlement proceedings. What I've done is raise the spectre as the last resort that this will be this if we can't sort this out by negotiation or by consent orders, this is what will happen.
Now, I did this with very good advice. I spoke to the [Office of the Public Advocate] … and they said you can do this as the EPA, get legal advice. So I got two separate legal opinions on this and they were both overwhelmingly in favour of saying, "Yes. If you can't resolve it, this is the way you have to do." Very clear statements on the way to go and these are the likely outcomes. And, as I said, what I'm trying to do here, acting in Mum's best interests again, is to secure her longterm financial future so that when she moves or has to move somewhere else or wants to move to a smaller house or care or whatever, it can be done, because, at the moment, it's not. It's totally, you know, in the air, indeterminate (T:30; 08.03.16).
56 GS states that he has not to date instructed his lawyer to commence a property settlement action.
57 GS states that on 30 November 2015, he sent a 'polite' email to his father suggesting that the issue of the ownership of the property needed to be resolved by him transferring his share of the property to LS. He says that since the separation, there had been very little by way of financial or emotional support from his father towards LS.
58 GS states that his father has not responded to his communications with him so discussion about LS's financial needs has not occurred.
59 When asked why the idea of a property settlement is only now being considered and not earlier by LS herself when she was still capable, GS responded that in his view, LS always put everybody else's needs before her own and she would say things such as 'No, let's not do that. It'll cause too much grief, too much upset in the family and we don't want any fuss.’ (T:42; 08.03.16).
60 GS submits that the proposed property settlement is the most pressing but divisive issue that confronts LS presently.
61 ALS submits that GS is the fit and proper person to act on behalf of LS. She states that in her view, GS has acted diligently and has always been the one who has delivered the majority of LS' care and not just when it suited him. She says that it would not be a good idea by introducing a different decisionmaking regime.
62 As regards the concern raised by DS about Christmas and the allegation about the tone of GS' communication with his siblings, ALS states she did not find anything offensive in the email sent by GS, taking it as a request rather than a command.
63 Both GS and ALS do not agree with the proposal of the Public Advocate (see below).
The views and wishes of LS
64 The Public Advocate interviewed LS at her home on 15 February 2016. The report of the Public Advocate filed with the Tribunal states relevantly that:
• LS had no recollection of having made the EPA and EPG;
• She stated that there was no need for a divorce and that she had never discussed a property settlement;
• GS took her to her medical appointments and that she trusted him with her life;
• She believes she is still capable of making her own decisions; and
• She appeared to be unaware of any conflict or disagreement between her children.
65 In her oral evidence, LS states that she bought the property because her spouse had 'gone north' and an opportunity arose to purchase it. When asked whether she owned the property solely she said 'I think so' and 'I regard myself as the owner' (T:23; 08.03.16).
66 LS states that GS looks after her very well and does not make any demands. She says she is quite happy to have GS with her.
The evidence and submission of the Public Advocate
67 The Public Advocate states that he has spoken with the lawyer who gave advice to GS regarding the proposed property settlement. The lawyer was able to say that she had been taking instructions from GS about the possibility of a property settlement but that she had received advice from DS as the joint and several attorney, to discontinue any action.
68 The Public Advocate is of the view that GS has undertaken the role of the daytoday management of LS' personal and financial needs in an admirable way. However the Public Advocate is concerned as to whether the property settlement should proceed, but that in any case, someone independent of the family should be given the task of considering the matter and consulting with all family members.
69 The Public Advocate states that he spoke with the spouse of LS who said that, if the time came for LS to go into care, he would be able to contribute to the costs without having to dispose of the property.
70 The Public Advocate does not agree with GS that divorce must follow a property settlement and speculates whether GS as enduring guardian, has the authority to initiate such a process on behalf of LS.
71 The Public Advocate proposes that the EPA should be revoked and that GS be appointed the administrator of LS' estate except for the matter of deciding her interests in the marital assets, which should be left to the Public Trustee.
72 The Public Advocate expresses doubt as to whether LS had the capacity to execute the EPG in January 2015 despite the document being witnessed by her GP.
73 The Public Advocate submits that GS has appropriately assumed the role of LS' guardian in regard to her care and medical needs but suggests that GS is under considerable stress in that role and that his siblings in Western Australia feel disinclined to visit LS in the current circumstances.
74 It is proposed that the Public Advocate be appointed limited guardian for LS with the authority to make decisions about her accommodation and about her contact with others, specifically with her children. It is further proposed that the EPG be amended to reflect the authorities given to the Public Advocate but that otherwise the EPG be permitted to operate.
Discussion
75 It seems to me that the dominant reason that the applications are before the Tribunal concerns the proposed action by GS to initiate a divorce and a property settlement between LS and her spouse who have been separated for about 30 years.
76 This action has caused a significant rift in the family because the children of LS have proceeded over the years on the basis of a presumption that things remain as they are. This seems also to have been the position of LS and the matter is being raised now in circumstances where she is no longer capable of deciding 'yes' or 'no' to the action.
77 The proceedings have further exposed tensions and conflicts between the children of LS as to the relationship they have with LS, manifesting in the question of how contact with her should take place.
78 It seems reasonable, on its face, to consider the future financial needs of LS in the context of the questions, what does her estate consist of and what will she have at her disposal to meet her future needs, given she has dementia and that her care needs (and costs) will increase over time.
79 It is clear that this is a particularly sensitive matter for the family of LS.
80 Whilst it may be reasonable for GS as LS' attorney and guardian to reflect on the matter, the progress has been very difficult because of existing family relationships.
81 The situation at the time of the hearing is that GS sent an email to his father on 30 November 2015 concerning the ownership of the property to which he has not received a response. On the evidence, there has been no further attempt at communication. The Public Advocate has spoken with LS' spouse who has indicated a willingness to assist financially at a time when LS needs to go into care, but it would appear, without changing the ownership of the property.
82 There the matter essentially rests but for GS making provision for legal action to commence and DS trying to stop that from happening.
83 This is a most unsatisfactory position for LS.
84 I accept that determining the extent of LS's estate is, in the circumstances of her progressive dementia and her future care needs, something that needs to be done.
85 I further accept from what I have said that the exploration of the extent of LS's estate cannot be an exercise undertaken by a family member. The issue is far too divisive as GS himself states and requires someone to look into the matter in an objective way, taking into account the family history and the views of all family members who clearly have strong opinions.
86 I agree that the EPA cannot continue. It gives joint and several authority to GS and DS who are unable to work together. The EPA should be revoked.
87 The only means by which LS' estate can be managed in the absence of an EPA is by the making of an administration order.
88 I accept that in the management of LS' daytoday financial needs, GS has undertaken that task in a diligent and appropriate manner and should continue in that role under an administration order. This is consistent with the wish expressed by LS.
89 However, the decision about how to approach LS' interest in the marital assets after a very long separation should be undertaken by the Public Trustee as a suitable appointment independent of the family.
90 In appointing the Public Trustee in that particular role, I will need to direct GS to pay out of the estate of LS the fees and costs incurred by the Public Trustee.
91 As regards the guardianship issues, I do not have before me an application to amend the EPG, but rather, the application made by DS which seeks revocation of the EPG.
92 I accept the evidence of DS and AJS that contact with LS is somewhat fraught and inhibited by the current relationship with GS. I make no judgment as to who is at fault (if anybody). However, the evidence of DS and AJS simply reflects the situation as it is, or at least, how people perceive it to be.
93 This is not good for LS who should have as much contact with her children as circumstances will allow.
94 I agree with the submission of the Public Advocate that someone outside of the family needs to decide access or contact. This can only be the Public Advocate.
95 I agree, in part, with the submission of the Public Advocate regarding the decisions around LS' accommodation, but only as accommodation interacts with the contact function, in that her children might stay with LS in her home for a short period, or LS might stay with her children in their homes, also for a short period.
96 In order to give full effect to the contact function given to the Public Advocate, I will include the authority to make decisions about where and with whom LS is to live, temporarily.
97 The future permanent accommodation for LS will likely proceed, in my view, in a natural way. There is no suggestion that LS should not continue to live in the property but as her care needs increase, this will become more difficult and aged care might need to be considered at a later time. There is no particular evidence before me to indicate this will not proceed in an orderly way.
98 In order to deal with the guardianship issues before me, I must revoke the EPG and substitute its authority with a guardianship order.
99 I will appoint GS as LS' limited guardian with plenary authority save and except the functions given to the Public Advocate.
100 I will appoint the Public Advocate as limited guardian to determine the contact, if any, LS should have with others and the extent of that contact and to decide where and with whom she is to live temporarily.
101 I make the observation that I agree with the Public Advocate that a property settlement does not necessarily presuppose the need for a divorce.
102 I will dismiss the applications under s 109(1)(a), s 109(1)(b) and s 109(1)(c) of the GA Act for the following reasons.
103 I am satisfied that the evidence of DS mitigates his initial argument advanced for the making of orders under s 109(1)(a) and s 109(1)(b) of the GA Act. DS says that the bank records he inspected appear ‘fine’ and do not reveal concerns of misappropriation by GS. In addition, he takes the view that a 'full audit' is not required.
104 Taking the evidence of DS together with endorsement of the Public Advocate regarding GS' management of the day to day finances of LS, I see no need to make orders under s 109(a) and s 109(1)(b) of the GA Act.
105 I have revoked the EPA. I have done so under s 108 of the GA Act and therefore do not need to rely upon s 109(1)(c).
106 I will set a review date of 12 months for the guardianship and administration orders.
Orders
Guardianship
The Tribunal declares that the represented person, [LS]:
a) is incapable of looking after her own health and safety;
b) is unable to make reasonable judgments in respect of matters relating to her person;
c) is in need of oversight, care or control in the interests of her own health and safety; and
(d) is in need of a guardian.
1. [GS] of [address redacted] is appointed limited guardian of the represented person with plenary authority save and except the functions given to the Public Advocate.
2. 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 and with whom the represented person is to live, temporarily;
(b) to determine what contact, if any, the represented person should have with others and the extent of that contact;
3. 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.
4. The order is to be reviewed by 15 July 2017.
Administration
The Tribunal declares that the represented person, [LS]:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b) is in need of an administrator of her estate, and the Tribunal orders that:
and the Tribunal orders that:
1. [GS] of [address redacted] is appointed limited administrator with plenary powers save and except the function given to the Public Trustee.
2. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator of the estate of the represented person with the following function:
(a) To investigate the represented person's interest in the marital assets of her and her spouse, who are separated, and, if considered to be in the represented person's best interests, to take whatever action is necessary to secure that interest as part of her estate under the authority of [GS] as administrator.
3. [GS] is directed to pay from the estate of the represented person the fees and costs of the Public Trustee.
4. The enduring power of attorney dated 17 October 2011 by which [LS] appointed DS and GS to be her attorney, is revoked.
5. The administration order is to be reviewed by 15 July 2017.
Enduring power of attorney
The applications made under s 109(1)(a), 109(1)(b) and 109(1)(c) are dismissed.
Enduring power of guardianship
The enduring power of guardianship made on 30 January 2015 by [LS] appointing [GS] as her enduring guardian is revoked.
- I certify that this and the preceding [106] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER