| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MB and EM [2013] WASAT 106 MEMBER : MR M ALLEN (SENIOR MEMBER) HEARD : 20 DECEMBER 2012, 27 MARCH 2013, 13 JUNE 2013 DELIVERED : 5 JULY 2013 FILE NO/S : GAA 4584 of 2012 GAA 4226 of 2012
GAA 4441 of 2012
GAA 4440 of 2012
BETWEEN : MB Applicant
AND
EM
Represented Person
Catchwords: Guardianship and administration Elderly woman with intellectual disability Applications for revocation of enduring power of attorney and enduring power of guardianship, an administration order, and review of guardianship order Findings that represented person unable to care for herself or make reasonable judgments about her personal or financial affairs, and was not capable of making an enduring power of attorney or enduring power of guardianship at the time of executing those documents - Enduring powers of attorney and guardianship
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revoked Orders made appointing two sisters as joint administrators and joint guardians, but subject to conditions that administrators and guardians provide information to, and consult, other siblings of the represented person Legislation: Guardianship and Administration Act 1990 (WA), s 3, s 4, s 16(4), s 43, s 44(1), s 44(2), s 64, s 68(1), s 68(3), s 80, s 86, s 104(1a), s 104(1)(b)(i), s 108, s 109, s 109(1)(c), s 110B, s 110F, s 110K, s 110N, Div 3 Pt 5, Pt 9A Result: Enduring power of attorney and enduring power of guardianship revoked
Plenary administration order made
Guardianship order revoked and replaced with a new limited guardianship order
Summary of Tribunal's decision: The proceedings before the Tribunal concerned a 68yearold woman with an intellectual disability and involved applications for the revocation of an enduring power of attorney and an enduring power of guardianship, for an administration order and the review of a limited guardianship order concerning the woman. At an early stage of the proceeding the Tribunal had made a limited guardianship order for the woman under which the Public Advocate was to determine issues relating to accommodation, contact with other persons, and consent to further neuropsychological assessment of whether the woman was capable of making decisions or managing her personal and financial affairs and expressing views and wishes concerning such matters.
The Tribunal was satisfied that, currently, the woman lacks capacity to make reasonable judgments about, or manage, her financial and personal affairs and was not capable of understanding the nature and effect of the enduring power of attorney and the enduring power of guardianship when those documents were executed in 2011. Accordingly, the Tribunal revoked the enduring power of attorney and enduring power of guardianship and concluded that an administration order and a guardianship order were needed in the best interests of the woman.
The Tribunal concluded that two of the woman's sisters had been most active in looking after the woman's interests in the past and that they had the support of most of the woman's other sisters and that their appointment would be consistent with the views and wishes of the woman, to the extent that such could be ascertained. The Tribunal considered that those two sisters should be appointed, notwithstanding that they had in the past made decisions without
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consulting other family members in relation to decisions concerning the woman, and that they had acted preemptively by removing the woman from the residence of the cousin.
The Tribunal imposed conditions on the appointment of the two sisters as joint guardians and administrators requiring them to provide information to the woman's siblings about the woman's care and wellbeing and her financial affairs, and requiring them to consult, and take into account the views and wishes of the siblings in relation to any significant decision to be made about the woman's financial affairs or concerning her accommodation, services or any treatment decisions to be made.
Category: B
Representation: Counsel:
Applicant : Self-represented
Represented Person : Mr P Mugliston (Hearing 20 December 2012) and Mr A Brook (Hearings 27 March 2013 and 13 June 2013)
Solicitors:
Applicant : N/A
Represented Person : Brook Legal and Settlement Services
Case(s) referred to in decision(s):
RS & Anor and DV [2011] WASAT 144
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 These proceedings concern, EM, who is a woman of 68 years of age and who has been variously described as suffering from a congenital developmental disability, frontal lobe syndrome, generalised anxiety disorder and obsessive compulsive disorder. These reasons for decision relate to various applications under the Guardianship and Administration Act 1990 (WA) (GA Act), further details of which are set out below. They involve an application for an administration order, review of a guardianship order made at an earlier hearing of the matters, and applications for orders in relation to an enduring power of attorney (EPA) and an enduring power of guardianship (EPG) made by EM on 15 August 2011.
Background 2 For most of her life, until the end of 2010, EM lived on the family farm with her parents until that became impossible due to the death of her mother and the placement of her father in a nursing home. In 2008 she suffered some kind of deterioration of her mental state that resulted in her hospitalisation for some weeks in Perth, although there was no clear evidence as to just how long the admission was for. 3 EM has six sisters and one brother. Her brother lives in New South Wales and took no part in the proceedings in the Tribunal. One of her sisters (NW) also lives in New South Wales and participated in all hearings in the Tribunal by telephone. EM's five other sisters (LB, RW, LA, MM and HW) all live in Perth and participated in all the hearings, although RW was unable to attend the last hearing as she was overseas but she made a written submission. 4 In early 2011 EM came to Perth and for a couple of months spent short periods of time with several of her sisters. At that stage there were no firm plans as to where she would live in the long term and, for reasons that will become apparent later in these reasons, her sisters living in Perth did not communicate with each other well about future plans. It appears that at this time two of EM's sisters (MM and LB) took the initiative in relation to where EM was to live in the short term, although that was not necessarily with the knowledge or agreement of the other sisters. 5 In March 2011 MB, who is a cousin of EM and who is a retired clinical psychologist and neuropsychologist, made an offer to LB and MM (Page 5)
that EM could stay with him for a short period as a trial and, if it 'worked out', then she could live with him permanently. It appears that MM and LB accepted this offer without the knowledge or agreement of at least some of the other sisters, and at least some of them were opposed to the idea subsequently. 6 Nevertheless, EM began to live with MB on a permanent basis and remained there until the end of November 2012. I accept MB's evidence that during that time he spent a great deal of effort working with EM to address her behavioural issues, including obsessive behaviour and incontinence, with some success. 7 During 2011 and 2012 MB facilitated EM having contact with her sisters and other members of her extended family, although it was common ground that from early 2012 the relationship between MB and EM's sisters, particularly LB and MM, began to deteriorate and EM saw less of her family members. I heard various versions as to why this occurred, but it is not necessary to try to make findings about the reasons. It appears to have been a combination of a number of factors, including: • MB wished to limit, or at least regulate, EM's contact with others because it was important that EM had a very fixed routine in order to address her behavioural issues. • MM and LB appear to have formed an adverse view about MB at least in part because of their perceptions of how he related to EM. • MM and LB attempted to have MB restrict EM's access to other family members because of personal issues between the sisters. 8 What is clear is that, during 2012, MB's relationship with MM and LB deteriorated, with increasing dissatisfaction on the part of MM and LB regarding EM's placement with MB. 9 On 21 November 2012 MB applied to the Tribunal for guardianship and administration orders in respect of EM under the GA Act, referring to the deteriorating relationship between him and MM and LB and the need for certainty regarding who was to have authority to make various kinds of decisions regarding EM. 10 On 10 December 2012 MB made further applications to the Tribunal, seeking orders under s 109 and s 110N of the GA Act in relation to an (Page 6)
EPA and an EPG that MB believed had been made by EM, but the details of which he was not then aware. That application referred to EM having been removed from MB's house on 28 November 2012 by LB and MM without any prior notice and in circumstances that were said to have caused EM great distress. 11 By the time of the first hearing in the Tribunal on 20 December 2012 it was apparent that EM had executed an EPA and EPG on 15 August 2011 by which she had appointed MM and LB as her joint and several attorneys and as her joint enduring guardians. 12 The Tribunal was also told at that hearing that EM had been admitted temporarily to a residential care facility (The Lodge) and that consideration would be given to her remaining there permanently. It was apparent that the decision to place EM at The Lodge was made by LB and MM and that, although some of EM's sisters were aware of this proposal, others were not. 13 At the completion of the hearing on 20 December 2012 I was satisfied that there was insufficient evidence of urgency to make any orders in relation to the management of EM's financial affairs. However, on the evidence regarding EM's limited capacity to make decisions for herself, I considered that it was necessary and appropriate for a limited guardianship order to be made for a short period of time to deal with the conflicting views that were apparent about what would be in EM's best interests regarding shortterm and longterm accommodation and to deal with issues regarding who EM should have contact with. As foreshadowed above, the evidence given at that time involved numerous versions of the events during 2011 and 2012 with numerous interpretations of the motives of the various parties during that time. It was obvious that there was significant conflict between MB, LB and MM and that there had been, and continued to be, some conflict between EM's sisters in relation to EM's welfare. 14 I therefore made a guardianship order appointing the Public Advocate as EM's limited guardian with powers to make decisions regarding EM's temporary and permanent accommodation and her contact with others, and to consent to the undertaking of neuropsychological testing and assessment of EM's capacity to make reasonable judgments about her financial and personal affairs, and her capacity to express views and wishes regarding who should be appointed to manage her financial and personal affairs, and the reliability of any such views and wishes. The order was to be reviewed after three months. (Page 7)
15 Two further hearings were held, the last of which was on 13 June 2013, following which the Tribunal reserved its decision on all the matters then before it.
Issues to be determined 16 The issues before the Tribunal for determination are as follows: a) Whether an administration order should be made for EM. This requires consideration of whether EM is unable, by reason of a mental disability, to make reasonable judgments regarding all or part of her estate and, if so, whether she needs an administrator (s 64 of the GA Act). b) Whether the current guardianship order should be continued. This requires consideration of whether EM 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 and, if so, whether she needs a guardian (s 43 of the GA Act). c) In determining whether there is a need for a guardianship order or an administration order, it is necessary to consider whether the EPA and EPG constitute less restrictive alternatives to such orders. This requires consideration of whether EM was capable of making such documents at the time of their execution. d) If orders are to be made, then the questions arise as to who should be appointed as administrator or guardian and with what functions and powers. 17 In determining matters such as these, the Tribunal must observe the principles set out in s 4 of the GA Act, which can be relevantly summarised as follows: a) the primary concern of the Tribunal shall be the best interests of EM; b) EM is to be 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 her financial (Page 8)
affairs, until the contrary is proved to the satisfaction of the Tribunal; c) a guardianship or administration order should not be made if EM's needs could be met by other means less restrictive of her freedom of decision and action; d) any orders that might be made should be in the most limited terms that would be sufficient to meet EM's needs, and any orders should impose the least restrictions possible in the circumstances on EM's freedom of decision and action; d) the Tribunal should, as far as possible, seek to ascertain the views and wishes of EM as expressed, in whatever manner, at the present time or as gathered from EM's previous actions.
Capacity of EM regarding personal and financial affairs 18 The evidence that was available to the Tribunal regarding EM's capacity can be summarised as follows: a) A report prepared in 2008 by Dr Y, a general practitioner who had seen EM infrequently in 2008 and 2005, was to the effect that EM had an intellectual disability and that Dr Y considered that she was capable of making decisions about personal healthcare but not about her financial affairs, and Dr Y was not sure about her capacity to make decisions regarding her living situation. Despite the view concerning EM's capacity regarding financial affairs, Dr Y indicated that he thought EM had the capacity in 2008 to make an EPA. b) A psychologist's report of an assessment of EM in 2008 was to the effect that EM could follow simple instructions but not complex ones and had problems expressing complex ideas. Her intellectual functioning was assessed as falling in the extremely low range. c) Dr C, a general practitioner who had seen EM during her time living with MB, provided a report to the Tribunal in which she offered the opinion that EM was incapable of making decisions regarding her personal healthcare, her living situation or her financial affairs. Dr C observed that EM was capable of thinking about choices if they were offered to her, but she was not capable of any independent planning. (Page 9)
d) Ms A, who is the respite coordinator at a respite centre that EM attended regularly whilst living with MB, provided a report in which she observed that EM could make simple choices and follow instructions, but because of her cognitive impairment EM would often forget those instructions. EM displays confusion and anxiety from time to time, usually related to conflict between MB and EM's sisters. EM was said to be able to have coherent conversations regarding simple matters but whenever any more complex issue is involved she tends to be agreeable and susceptible to changing her mind as she tries to please everyone. EM was said to be not capable of understanding the impact of bad decisions on her quality of life but she is capable of appearing to understand but, in Ms A's opinion, she cannot understand issues and their relevance to her quality of life. e) Dr V, a neuropsychologist engaged by the Public Advocate following the making of the guardianship order in December 2012, provided a report. The main points of this report were that EM's overall intellectual ability fell in the extremely low range; she struggled to write a complete sentence and her verbal and language skills were extremely limited, consistent with her intellectual disability; a reduced working memory affected her capacity to encode new verbal material into memory; there were pronounced impairments in higher level thought; and mental arithmetic was in the extremely low range. Dr V said that, in summary, the review highlighted a pattern of fairly significant and generalised cognitive deficits consistent with EM's intellectual disability. EM lacked the cognitive abilities to manage even simple dayto-day finances or lifestyle decisions such as health and safety in the home. She could not retain relevant information, generate or weigh up alternatives, or appreciate the consequences of more complex decisions, and she was easily influenced by others and vulnerable to inconsistent decisionmaking. She did not understand the nature and effect of an EPA or an EPG. (f) MB provided various written statements setting out, from the perspective of his profession as a clinical psychologist and neuropsychologist, his views about EM's various conditions and behaviours, and the limitations in her ability to understand (Page 10)
complex matters and her susceptibility to being influenced by others. 19 I did not understand any of the parties to contend that at the time of the various hearings in the Tribunal EM was capable of making reasonable judgments or decisions about her personal or financial affairs. In my view, that was an appropriate stance to take, and I find that the presumptions regarding EM's capacity (referred to in s 4 of the GA Act) are, on the evidence referred to above, displaced. For the purposes of making an administration order, I find that EM's inability to make reasonable judgments about her financial affairs is due to her intellectual disability, which is a 'mental disability' as that term is defined in s 3 of the GA Act. 20 EM is therefore a person for whom a guardian and an administrator may be appointed, if she is need of such appointments.
Need for a guardian and administrator 21 EM has bank accounts and term deposits totalling approximately $410,000 and bank shares valued at approximately $35,000. An accommodation bond for The Lodge is still to be paid from those amounts. EM requires someone to manage these funds, either under an EPA or an administration order. 22 In relation to personal affairs, I was informed that the Public Advocate, as limited guardian, had made the decision that EM would accept a permanent placement at The Lodge and that it was likely she would remain there for the foreseeable future, although a move at some time could not be ruled out. Medical decisions will need to be made from time to time as EM suffers from a number of medical conditions. 23 I have considered whether there is a continuing issue regarding the contact EM should have with others, in particular, MB. I was told that since living at The Lodge EM had made contradictory statements to various people regarding her wish, or otherwise, to have contact with MB. It appears that MB has been able to speak to EM by telephone on several occasions and that EM has been happy to have that contact, but has told MB that she has been told that she is not to have contact with MB. On two occasions MB has been to The Lodge but has been told by staff that he cannot see EM because EM is quoted as saying that she does not want to see him. I was told that there are currently no restrictions on MB having contact with EM and that none of EM's sisters would want to hinder that contact - so there are not currently any formal reasons why EM (Page 11)
should not have contact with him if she is happy to do so. I suggested to MB and the Public Advocate's representative that MB and the representative could go to The Lodge together so that the representative could try to clarify once and for all what EM says about seeing MB. In the circumstances of no one wanting to restrict MB's contact with EM, on balance, I consider that there is no need for a guardian to have the function of determining contact issues. 24 In my opinion, EM has a need for both an administrator and a guardian, unless the EPA and EPG can be regarded as valid and likely to operate in EM's best interests. I now turn to the question of whether the EPA and EPG were validly made by EM.
Validity of EPA and EPG 25 These two documents were executed by EM on 15 August 2011 when MM and LB arranged for her to see a solicitor (Mr B) with them. As noted above, MM and LB were appointed as attorneys and enduring guardians. The EPA conferred on the attorneys the power to do anything on behalf of EM that she could lawfully do by an attorney and the authority of the attorneys was not subject to any conditions or restrictions. The EPG conferred on the enduring guardians the power to perform 'all of the functions of an enduring guardian, including making all decisions about my health care and lifestyle' and the EPG authorised the enduring guardians to act 'in any circumstances, including when my doctor states I am unwell and do not have the capacity to act on my own behalf'. 26 The two documents appear regular on their face subject to one qualification mentioned below and were witnessed by Mr B and a legal secretary. 27 Mr B told the Tribunal in a written statement that EM was, at the time, '… oriented to time, place and person and she understood that she was authorising her two sisters to manage her financial affairs and decisions relating to her welfare. Prior to signing the documents [Mr B] explained to [EM] in simple language the effect of the [EPA] and [EPG] and then asked [EM] if she would like her two sisters to make decisions relating to her financial affairs and to her personal welfare to which she responded ''Yes'''. Mr B also told the Tribunal orally that he discussed with EM her living and financial situation. EM had said that her father had previously managed her financial affairs but she was happy for her sisters to take over. Mr B told the Tribunal that he felt confident about forming a view regarding EM's capacity to understand, because he had (Page 12)
previously worked as a psychiatric nurse and was familiar with such issues. 28 Dr C and Dr V were asked to express an opinion about whether EM was likely to have been capable in August 2011 to execute the EPA and EPG, having regard to their assessments of her capacity in late 2012 and early 2013. Dr C said that EM was 'probably not capable of making [an EPA] and [an EPG] on 15 August 2011 as she has limited capacity for decision making'. 29 Dr V's report on the issue was more fulsome, and included the following main points: • The assessments in 2008 showed that EM met the diagnostic criteria for an intellectual disability, and the findings of Dr V's assessment in 2013 of an intellectual capacity that fell within the extremely low range were consistent with that history and the history of developmental delay. • Individuals with an intellectual disability are at a slightly elevated risk of cognitive decline and dementia. The findings of the 2008 and 2013 assessments were broadly commensurate, and the history provided to Dr V by MM and LB was of improvement and stability rather than a deterioration of EM's cognitive abilities since 2008 and so it seems unlikely that EM's cognitive capacity has deteriorated since then. • EM's decision-making disabilities relate to her longstanding developmental condition (that is, intellectual disability) and lack of opportunity to master certain life skills. There is compelling evidence of significant compromise prior to 2011 and it appears doubtful that her capacity would have been materially different in 2011 than it was in early 2013. 30 Dr V's earlier report concerning her assessment in early 2013 had stated that EM said that she had not previously signed papers to appoint a guardian, but then said, wrongly, that she had signed papers appointing MB. She did not say that she had appointed MM and LB and she was unable to say what her current EPA arrangements were but on direct questioning indicated MM was the only person to help with financial decisions. Dr V said that it was clear that EM did not fully understand the nature and effect of an EPA, despite repeated explanations. She was confused about the roles of an attorney and guardian and was inconsistent (Page 13)
about when such documents could come into effect and when they could be revoked or changed. She thought an enduring attorney could 'look after all my clothes and everything' and, after saying that, she had signed a paper for MM to manage her finances 'last year', then said that an EPA could only be signed 'when someone dies'. 31 Dr V concluded that EM did not understand the nature or effect of an EPA or an EPG and, given her lack of knowledge and understanding about her assets (or what the values of them represented), it is unlikely EM could meaningfully consider the implications of appointing an enduring attorney. 32 I note that the EPA is of the type that came into effect as soon as it was executed (s 104(1)(b)(i) of the GA Act) whereas clause 3 of the EPG provides, as noted above, that the enduring guardians may act '… in any circumstances, including: when my doctor states I am unwell and do not have the capacity to act on my own behalf'. Section 110F of the GA Act provides that an EPG has effect, subject to its terms, 'at any time the appointor is unable to make reasonable judgments in respect of matters relating to his or her person'. If clause 3 of the EPG was intended to provide by the use of the word 'including' - that the enduring guardians could act under the EPG at times other than those specified by s 110F, then the EPG would not be consistent with the provisions of Pt 9A of the GA Act. At the least, clause 3 of the EPG is ambiguous in relation to when the EPG takes effect. Even if EM understood the terms of the EPG as prepared by Mr B, her understanding would have been of something that goes beyond what is permitted by the GA Act. 33 I do not, however, rely on this point, because I have concluded that EM did not have the capacity to execute the EPA and EPG. For a person to make a valid appointment under an EPA or and EPG he or she must have 'full legal capacity' to do so (s 104(1a) and s 110B of the GA Act). To have such capacity the person must, at the time of appointment, understand the nature and effect of the formal instrument and the nature and extent of the powers to be entrusted to the substitute decision-maker. The person must have a clear understanding of the nature and effect of the instrument and its implications: RS & Anor and DV [2011] WASAT 144 at [15]. 34 In reaching that conclusion I accept the evidence of Dr V outlined above, which was not really challenged by any party, and I am satisfied that EM was not capable of understanding the nature, effect and implications of the EPA and the EPG when she signed them in (Page 14)
August 2011. To the extent that Dr V's opinions differ from those of Dr Y in 2008 and Mr B in 2013, I prefer those of Dr V, due to Dr Y's report being based on little contact and reflecting the position some five years ago, and the more specialised nature of Dr V's area of expertise and the specific nature of the testing and assessment of EM's capacity. 35 It would not be in EM's best interests to have her financial or personal affairs managed under such documents in those circumstances. The EPA and the EPG cannot be seen as less restrictive alternatives to the making of an administration order or a guardianship order. 36 The Tribunal does not have the power under the GA Act to declare that an EPA is invalid, but does have that power in relation to an EPG (s 110K of the GA Act) - although no application has been made under that provision. However, when making an administration order the Tribunal can and must revoke or vary an EPA in certain circumstances (s 108 of the GA Act), and MB's application under s 109(1)(c) of the GA Act enables an order to be made revoking the EPA. Similarly, MB's application under s 110N of the GA Act enables an order to be made revoking the EPG. I am satisfied that orders should be made revoking both the EPA and the EPG. 37 It follows that an administration order should be made for EM and a guardianship order should continue to have effect. The next issues to address are, therefore, who should be appointed as administrator and guardian for EM.
Who should be appointed as administrator and guardian? 38 To be appointed as an administrator or guardian for a represented person a person must be over the age of 18 years (which is not an issue in this matter) and be willing to act, and the Tribunal must be satisfied that the person will act in the best interests of the represented person, be otherwise suitable to act, and (in the case of a guardian) not be in a position where his or her interests conflict or may conflict with those of the represented person (s 44(1) and s 68(1) of the GA Act. 39 In relation to suitability to act, s 44(2) and s 68(3) specify factors to be taken into account as far as is possible namely, the compatibility of the proposed appointee with the person and any existing guardian or administrator, the wishes of the person and the ability of the proposed appointee to perform the functions. In the case of a proposed guardian there is an additional factor, namely, the desirability of preserving existing relationships within the family of the proposed represented person. (Page 15)
40 It is to be noted that s 44(5) of the GA Act provides that, except in the case of a joint appointment, the Public Advocate is not to be appointed as a guardian unless there is no other person who is suitable or willing to act. 41 A number of proposals regarding who should be appointed were made to the Tribunal, in some cases supported by extensive submissions. In summary, they were: • MB proposed that he be appointed because (in summary), as a trained professional, he understands the roles and EM's conditions; has the time and availability to perform the roles; is committed to incorporating EM's wishes into decisionmaking and will encourage her independence; and will maintain and extend EM's supporting relationships and friends. Importantly, MB has proposed to the Public Advocate that EM should again live with him on a permanent basis rather than at The Lodge, and EM said that he would only be willing to pursue that option if he were granted the authority of being EM's guardian and administrator. • MM and LB propose themselves as EM's substitute decisionmakers, either under the EPA and the EPG or as joint guardians and administrators - on the basis that they have been the ones who have been most involved in caring for and helping make decisions for EM in the past, including protecting her from instances of attempted financial exploitation, and their appointment would be in accordance with EM's wishes. They undertook to consult other family members in relation to the decisions to be made. They said, in effect, that they were willing to allow major decisions to be made by a majority vote of EM's sisters. • The Public Advocate's representative proposed that two other sisters, RW and HW, be appointed because they were sensible people who were in good standing with most of the other family members and were more likely to be consultative in their roles. The representative did not support the appointment of MM and LB because of concerns regarding nonconsultation with other family members and because of a recent incident in which MM and LB took EM to visit their father for a few days without ensuring they had an adequate supply of EM's medication. (Page 16)
• NW supported the appointment of MB and did not support the appointment of any other family member. If MB were not appointed then the Public Advocate should be. • HW and RW said that they believed that a family member should be appointed; they were willing to be appointed if no one else was considered suitable, but they supported the appointment of MM and LB, provided there was certainty about consultation with family members. 42 I emphasise at this point that it is not the Tribunal's task in a proceeding such as this to make a decision about where EM should live. Necessarily, however, the views of various parties about that issue must not be overlooked because differing opinions are held by those who might be appointed as guardian or administrator. Who is appointed may well determine the accommodation question. MB and NW believe that it would be best for EM to return to live with MB, whereas all the other family members (with the exception of EM's brother whose views are not known) consider that EM's current placement is working well and that she would be best served by remaining at The Lodge. That view is supported by the Public Advocate, who has acted on that view by accepting the offer of a permanent place for EM at The Lodge. 43 Several findings of fact can be made at this stage: • I accept MB's evidence that EM benefited from living with him and that he was able to make significant advances in dealing with some of her behavioural issues. In the absence of any alternatives, living with MB might be seen as an acceptable alternative. • I consider that MB is suitable to be appointed as a guardian and administrator for EM by reason of his professional knowledge and his evident commitment to her welfare. • I find that MM and LB acted in a precipitous way in removing EM from MB's care. Although I accept their evidence that they believed EM was expressing dissatisfaction about staying with MB, in the light of EM's history and her vulnerability to being influenced, I consider that at the very least MM and LB should have consulted EM's sisters to see if they shared the concerns and should have discussed the matter with MB. I consider that the pre-emptive removal of EM was done as a (Page 17)
response to the knowledge that MB had made the first applications to the Tribunal. • I accept that, for historical reasons, there was not an adequate level of communication or consultation between EM's family members regarding EM's situation. I also accept, however, that the position has improved somewhat although I also accept RW's assessment that the position has not yet been put to a major test. 44 On balance, and notwithstanding the above matters, I have concluded that it would be appropriate to appoint MM and LB as EM's guardians and administrators for the following reasons: a) I am satisfied that they have been the family members who have, in the past and recently, been most active in looking after EM's interests, albeit at times without involving others. b) MM and LB have been involved in looking after EM's financial affairs in recent times, apparently satisfactorily subject to one point I will refer to below. c) All EM's sisters who live in Perth, and who will necessarily have most to do with her, believe that the appointee(s) should be immediate family members and support the appointment of MM and LB although others are willing to take on the jobs if no one else within the family is thought suitable. d) EM is in the position where, in my view, she needs and wants as much contact with familiar family members as possible and it is the fact (for various reasons mentioned above) that, whilst she lived with MB, that contact was to some extent limited. By contrast, all family members who live in Perth stated that it had become much easier to see EM now that she is living at The Lodge and, in addition, EM had been able to see several of her aunts regularly since she moved to The Lodge. In my opinion, the appointment of MM and LB is much more likely to result in EM having more contact with her extended family than would be likely to be the case if EM were to live with MB in circumstances where MB was her substitute decisionmaker and able, effectively, to determine what contact EM had with family members. (Page 18)
e) EM is now at an age where her physical or cognitive health may start to deteriorate and her care needs may increase, indicating that residing in a place like The Lodge may be increasingly more appropriate as time goes by. At the same time, I accept the evidence of family members and the Public Advocate that EM has settled into The Lodge very well, enjoys living there, and is particularly happy to be there because she is able to see family members more often. The appointment of MB in these circumstances, if it meant a possible or probable removal of EM from The Lodge, would not be in her best interests, nor in accordance with her wishes. f) I accept that MM and LB are genuine in their intentions to involve other family members in decisionmaking regarding EM. In any event, that can be achieved by the imposition of appropriate directions to the appointees in the orders of the Tribunal. g) According to Dr V's reports, which I consider to be the most reliable guide to what EM has said in recent times about her wishes concerning who she trusts and would like to be involved in looking after her personal and financial affairs, EM was clear and consistent in saying that she trusted MM and LB to manage her financial affairs. Although she was confused about the differences between a guardian and an administrator (something that is common amongst even fully competent persons), and did not consistently name anyone who she trusted to be her guardian, she did at one stage nominate that MM and LB were her guardians and at another stage said she would trust LB. The confusion about the differing roles, and the consistent nomination of MM and LB regarding finances, suggests to me that the best indicator of EM's wishes is that she would prefer MM and LB to be involved in decision-making for her in preference to any other. I consider that I should place considerable weight on that. I note that EM spoke negatively, albeit incorrectly, in relation to appointing MB as guardian. 45 The qualification I referred to above regarding the management of EM's financial affairs by MM and LB relates to the payment from EM's funds of legal fees amounting to approximately $18,000 for legal representation in the present proceedings, which, in the absence of further information, seems a substantial sum for the work involved. Mr B's (Page 19)
notice of legal representation lodged with the Tribunal indicated that he represented EM, MM and LB, although it was not clear in what capacities he represented MM and LB. I raised with Mr B the issue that if any legal fees paid properly reflected work done on behalf of MM and LB in their personal capacities then it would seem inappropriate for EM to pay for that work in the absence of an order by the Tribunal, pursuant to s 16(4) of the GA Act, which permits the Tribunal to make orders that a party's costs relating to proceedings be paid from the estate of the represented person. That is an issue I would expect MM and LB to pursue with Mr B. 46 For the reasons set out above, I will make an administration order, and revoke the guardianship order made on 20 December 2012 and replace it with a new guardianship order in the terms set out below. I consider that both orders should be reviewed by the Tribunal after three years, bearing in mind that the orders can be reviewed at any time prior to then, on applications under s 86 of the GA Act, albeit with leave of the Tribunal in the case of some applicants, should any circumstance change or should there be any other good reason to conduct an earlier review. 47 I observe, in conclusion, that the orders to be made are not what MB sought from these proceedings. That is not to infer that MB has acted in any way inappropriately in his care for EM or in making the applications to the Tribunal. The contrary is the case. I am completely satisfied that MB has throughout been motivated only by his concern for EM and what he believes to be best for her. He was justified in applying to the Tribunal to clarify who had authority to make decisions for EM, and in being concerned about her removal from his residence. However, my decision has been substantially influenced by a desire to achieve a result that will maximise EM's involvement with her family, particularly her sisters who live in Perth, and which is, to the greatest extent possible, consistent with the views and wishes that have been expressed by EM herself, notwithstanding the difficulties in establishing such views and wishes reliably.
Administration order 1. Subject to order 3, MM and LB are appointed joint plenary administrators of the estate of EM (the represented person) with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA). (Page 20)
Guardianship order (Page 21)
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M ALLEN, SENIOR MEMBER (Page 22)
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