MDS and JS
[2006] WASAT 192
•14 JULY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MDS and JS [2006] WASAT 192
MEMBER: MS C HILL (SENIOR SESSIONAL MEMBER)
HEARD: 7 JUNE 2006
DELIVERED : 14 JULY 2006
FILE NO/S: GAA 734 of 2006
BETWEEN: MDS
Applicant
AND
JS
Represented Person
Catchwords:
Guardianship and Administration Guardianship Limited appointment Administration Not capable Previous Enduring Power of Attorney not valid No less restrictive alternative Substantial estate requiring management
Legislation:
Guardianship and Administration Act 1990 (WA), s 43(1), s 43(1)(a), s 43(1)(b), s 64(1), s 64(1)(a), s 104(2)(a), s 119(3), s 119(3)(d)
Result:
Guardian application dismissed
Plenary administrator appointed
Category: B
Representation:
Counsel:
Applicant: Ms M Byrne
Represented Person : Ms Elliottt
Solicitors:
Applicant: Talbot & Olivier
Represented Person : Elliottt & Co
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
Mr MDS made applications for guardianship and administration orders to be made with respect to his mother, the represented person. The represented person has a diagnosis of dementia due to probable Alzheimer's disease, and other diagnoses that relate to physical ailments. She and her husband lived in their own unit until November 2005 when he suffered a stroke and eventually moved into permanent care. She continues to live in that unit, cared for by her son and daughterinlaw. The hearing took place on 7 June 2006 immediately following hearings for both guardianship and administration for her husband. Mrs JS is unable to make reasoned decisions in her best interest in relation to accommodation, health care or the management of her estate. Currently her younger son is making all decisions in relation to any necessary medical treatment but lacks the necessary authority to do so. Consequently, he was appointed as her guardian for this purpose only.
The Tribunal appointed the applicant to the position of plenary administrator for a fiveyear period.
Application
Mr MDS (applicant) made application under s 43(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) for the appointment of a guardian for his mother (represented person), and proposed that he be appointed to that position. He also made application under s 64(1) for the appointment of an administrator, also proposing himself as administrator.
The brother of the applicant, Mr GS, proposed that he be appointed as both guardian and administrator.
Present at the hearing were the represented person, her legal representative, Ms M Elliott, the applicant, Mr MDS, his legal representative, Ms M Byrne, the husband of the represented person, Mr MS, the younger son of the represented person, Mr GS, the daughterin-law of the represented person, Ms FS, and Ms Seskas, paid carer.
Guardianship
Capacity
The Tribunal received reports from Dr Viera, Geriatrician, dated 13 January 2006 and 28 March 2006, Dr Vernon, General Practitioner, dated 4 May 2006 and 5 May 2006, Dr Warne, Geriatrician, dated 31 May 2006 and Dr Clarnette, Geriatrician, dated 31 May 2006. In addition, at the hearing, Ms Elliott submitted an addition report from Dr Vernon dated 2 June 2006, and Mr GS submitted a carer's report that he had prepared himself dated 19 May 2006.
In the report dated 28 March 2006, Dr Viera states that the represented person is incapable of making reasonable decisions in relation to personal health care or her living situation.
In his report dated 4 May 2006, Dr Vernon reports that the represented person is capable of making reasonable decisions in relation to personal health care and her living situation.
On 26 May 2006, the represented person attended the rooms of Dr Clarnette for the purpose of assessing her testamentary capacity. However, in his report dated 31 May 2006, Dr Clarnette also reports on her capacity to make decisions relevant to the appointment of a guardian, and he states that the represented person " … does not have capacity within the meaning of section 43(1)(b) of the Guardianship and Administration Act".
Mr GS reported that the represented person is sometimes confused, always followed instructions, usually conversed sensibly but sometimes had memory lapses. He said that some things get "stuck in her head" such as still living at her old address, but that she makes decisions about what she wants to buy and what she wants to eat.
Ms Elliott stated that it was not her intention to argue capacity given that there was a report from Dr Clarnette, whom she noted was not only an expert in this area but who also has benefit of his experience as a member of the State Administrative Tribunal. She pointed out that when her client had spoken earlier in the proceedings, she had stated her wishes clearly in that she wanted to stay in her own home with Mr GS providing care.
At this point, it is relevant to describe the circumstances of the hearing. Applications were before the Tribunal for guardianship and administration for not only the represented person but also for her husband of approximately 70 years. All the parties for both hearings were in the hearing room, and while the applications were dealt with separately, from time to time, evidence was given that related to both the represented person and her husband, or that related more to the represented person whose application was not the focus of the discussion at that particular time. On these occasions, the Tribunal was obliged to determine to which application the evidence related.
The represented person stated that she is happy living in her own home and with the care given to her by Mr GS. She said that she would like it to remain that way. The applicant also reported that his brother, Mr GS, provides the care for the represented person. He gave his view that his mother is not capable of making decisions that related to lifestyle and that while he considered that it was appropriate that his brother make those decisions on her behalf, he would like to be consulted.
Ms Byrne said that her client, the applicant, would like to be appointed as a joint guardian with his brother, Mr GS, as it would give him a greater role in decisionmaking for the represented person. In particular, there may be a need for higher level care in the future and requiring a decision to be made concerning accommodation.
Mr GS reported that in January 2004, his father had asked him and his wife to provide some personal care for the represented person at the rate of $450 per week. By the end of that year, more daily care was required for which his father paid him $200 per day. Since his father suffered a stroke in November 2005, the applicant and his wife have provided 24hour care.
Mr GS and his wife provide personal care and companionship. They take the represented person out most days so that she regularly participates in the daytoday life of the community. Mr GS stated that he is aware that his father is determined that the represented person should join him at the Maurice Zeffert Nursing Home and that he did not want her to move there against her wishes.
The applicant acknowledged that when the option of moving to higher care had been discussed, Mr GS had taken the represented person to look around a home. She had not wanted to go and the matter had been dropped.
Mr GS also oversees any medical or health care that has been required and that his right to do so had not been questioned by any of the medical staff with whom he came into contact. The applicant agrees that his brother is well suited to this task, but expressed dissatisfaction that he had not been consulted on any aspect of the represented person's medical care. Mr GS acknowledged that he had been lax in advising his brother of the represented person's medical status, but gave an undertaking to the Tribunal that he would improve his performance in the future.
Findings
The Tribunal recognises that there are differing views as to whether or not the represented person is capable of making decisions concerning her accommodation, care and medical treatment. However, the most persuasive opinion is that given by Dr Clarnette, who assessed the represented person with the specific objective of determining her capacity to make reasoned decisions. Consequently, the Tribunal finds that the represented person is not capable of making decisions as prescribed in s 43(1)(a) and s 43(1)(b) of the GA Act.
With respect to the appointment of a guardian, the Tribunal finds that currently there is no need to formally appoint a person to make decisions concerning accommodation or other lifestyle matters, as the younger son, GS, in his capacity as carer of the represented person, is currently doing so and that the applicant sees him as well suited to the task.
With respect to guardianship, the question remains as to who should make decisions relating to medical treatment. The hierarchy of those who may make decisions under s 119(3) of the GA Act falls first to an appointed guardian and second to a spouse. In this instance, the husband of represented person has been found by the State Administrative Tribunal to be incapable to make reasonable decisions in his own best interest. Thus, the next in the hierarchy is the applicant.
The applicant states that his younger brother, Mr GS, is the most appropriate person to oversee the medical management of his mother, although he expressed his dissatisfaction that he has not been kept well informed about her health issues. Mr GS undertook to improve his communication on these matters.
The Tribunal finds that it is necessary to clarify who is the person to make these decisions, and as a consequence, appoints Mr GS as guardian under s 119(3)(d) of the GA Act.
Administration
Capacity
In his report dated 28 May 2006, Dr Viera states that the represented person is unable to make reasonable decisions in relation to her financial affairs.
In his report dated 4 May 2006, Dr Vernon states that he is unsure of the represented person's ability to make reasonable decisions in relation to her financial affairs.
Dr Warne states in his letter dated 31 May 2006 that the represented person is:
" … able to state that she wished to remain in her own home and that she truly wishes her son, G.S. to manage and support her in her own home. [She does not wish to enter residential care at Maurice Zeffert Nursing Home.] However, she would not be able to manage higher levels of capacity such as managing her finances or any businesses or complex business transactions."
In his report dated 31 May 2006, Dr Clarnette states that the represented person:
" … does not have capacity within the meaning of section 64(1)(a) of the Guardianship and Administration Act. She cannot make reasonable judgments regarding her estate as she cannot retain pertinent information about her estate."
Ms Elliott advised the Tribunal that she would defer to the opinion of Dr Clarnette.
Findings
The Tribunal finds that the represented person is a person for whom s 64(1)(a) of the GA Act applies.
Enduring Power of Attorney as a less restrictive alternative
On 9 January 2006, the represented person signed an Enduring Power of Attorney in which she appointed the applicant and his brother, Mr GS, as joint attorneys. The applicant then contacted Dr Viera for his opinion as to whether it was appropriate for his mother to execute such a document.
In a letter to the applicant dated 13 January 2006, Dr Viera states:
"In summary[,] at the moment both Dr. Gild and myself are in agreement that your parents do not unfortunately have testamentary capacity and that an enduring power of attorney signed by them would not be valid and we would strongly recommend an application to the Guardianship Board."
The applicant states that he deferred to the opinion of Dr Viera and has not attempted to act under the power.
In a report written on 2 June 2006, Dr Vernon states that, as at 9 January 2006, the represented person "would have been capable of executing an EPA".
Examination of the Enduring Power of Attorney document shows two aspects that make its validity suspect. First, the witness does not have an occupation that is prescribed on the list of those who may witness such a document, and second, the date of acceptance has been omitted.
In his report dated 5 May 2006, Dr Vernon states:
"I believe [the represented person] is capable of understanding the general purpose of the instrument of an EPA. Her knowledge of the detail of the estate is poor but she understands she has a large estate mainly money in the bank. She appreciates the attorney has complete and unchecked authority of her estate, but she can direct her wishes."
In his report dated 31 May 2006, Dr Clarnette states that the represented person "does not have capacity at this point in time to make an enduring power of attorney".
Findings
Even if ignoring the omitted date of acceptance, the Tribunal finds that this document is not a valid Enduring Power of Attorney as required under s 104(2)(a) of the GA Act.
Need for an Administration Order and who should be appointed
The applicant reported that all the assets of the represented person were held jointly with her husband, and that while his mother may have signed cheques from time to time, the primary manager of financial matters had been her husband. Mr GS submitted a carer's report that he had prepared for the benefit of the Tribunal in which he stated that "[MS] had always handled [the represented person]'s affairs … ".
The estate was not insubstantial, with joint assets of approximately $2.2 million on deposit at Bankwest. In addition, the represented person and her husband were soon to receive an inheritance of $1 million. Other assets included equity in a home unit, a vehicle, and a coin collection held in a bank deposit. The represented person received no pension; rather her income was derived solely from interest on these investments. The applicant stated that he had been involved in the affairs of his parents for the last 20 years as an advisor and a "sounding board". He stated that he was well aware of the nature and extent of the estate.
The applicant proposed himself as administrator and advised the Tribunal that he would ensure that the assets are maintained and protected. He proposed to leave the investments as they were, that is, on deposit at Bankwest, as that was the way his father had preferred to operate.
Mr GS said that joint administration between himself and the applicant was his preferred option. He stated that he needed to be appointed so that he could look out for his mother's interests. He advised the Tribunal that one week after the represented person's husband, Mr MS, had been admitted to hospital due to a stroke, he had taken the represented person to the bank. On that occasion, she had opened an account in her own name and had withdrawn half of the funds from the joint account and deposited them into her new account.
Mr GS stated that "We thought Dad could empty the account and leave her with nothing". He then stated "We believed Dad and [the applicant] would try to get their hands on the money". He was unable to give any reason why he had thought that this was a possibility. He stated that with regard to the actual managing of his parent's affairs over the 70 years of their marriage, "[the applicant] would have been involved" and that his mother "may have signed cheques". He then said that separating the accounts without consulting his father "seemed like the thing to do".
Mr GS also stated that he had the cheque book from the joint account and that the represented person signed cheques as required.
Until this point in the proceedings, the applicant was unaware that the represented person had her own account or that the initial deposit had been as a result of a withdrawal from the account held jointly by the represented person and his father. He stated that he was in the best position to make judgments [concerning the estate] and that his brother has a questionable background with respect to money.
In response to a statement from Ms Elliott, Mr GS stated that he was a discharged bankrupt but that his inability to run his business did not affect his ability to manage the affairs of the represented person. He asserted that his brother's company has been in receivership "with the tax office". The applicant advised the Tribunal that his company had won the case. He expressed his view that it appeared that funds from the account held jointly by his parents had been misappropriated.
Ms Elliott proposed that Mr GS had been performing the role of assisting the represented person with her finances since 2005 and that he was willing to continue in that role.
Findings
Drs Viera, Warne and Clarnette are all of the view that the represented person is currently unable to make decisions in her own best interest with respect to the management of her estate.
The estate of the represented person is substantial and the income it generates is sufficient for both her and her husband to pay their necessary expenses. The Tribunal is satisfied that the usual practice was for the husband of the represented person to manage their joint estate and that over the past 20 years, Mr MS has actively sought the advice of the applicant on its management.
The Tribunal finds that Mr GS made an unreasonable assumption that the estate of the represented person was in need of protection and that the outcome of this assumption was not necessarily in her best interests.
The applicant is willing to take on the responsibility of managing the estate and proposes that he be the person appointed. The Tribunal accepts his assertion that he is capable of managing the estate, both in the best interests of the represented person and in a fashion that she and her husband would choose were they capable to do so themselves.
Orders
The orders of the Tribunal are:
1.Under s 43(1) of the Guardianship and Administration Act 1990 Mr GS be appointed as guardian, with the authority to, subject to Div 3, consent to any treatment or health care of the represented person.
2.The Enduring Power of Attorney executed on 9 January 2006 wherein the represented person appointed the applicant and Mr GS as her joint attorneys is no longer in effect.
3.Under s 64(1) of the Guardianship and Administration Act 1990, the applicant be appointed as plenary administrator for the estate of the represented person.
4.This order shall be reviewed on 7 June 2011.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C HILL, SENIOR SESSIONAL MEMBER
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