MDS and MS
[2006] WASAT 193
•14 JULY 2006
MDS and MS [2006] WASAT 193
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 193 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:726/2006 | 7 JUNE 2006 | |
| Coram: | MS C HILL (SENIOR SESSIONAL MEMBER) | 14/07/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Guardianship application dismissed Plenary administrator appointed | ||
| B | |||
| PDF Version |
| Parties: | MDS MS |
Catchwords: | Guardianship and Administration Guardianship No need Administration Not capable Substantial estate requiring management assets at risk |
Legislation: | Guardianship and Administration Act 1990 (WA), s 43(1), s 64, s 64(1), s 119, s 119(3)(c) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MDS and MS [2006] WASAT 193 MEMBER : MS C HILL (SENIOR SESSIONAL MEMBER) HEARD : 7 JUNE 2006 DELIVERED : 14 JULY 2006 FILE NO/S : GAA 726 of 2006 BETWEEN : MDS
- Applicant
AND
MS
Represented Person
Catchwords:
Guardianship and Administration Guardianship No need Administration Not capable Substantial estate requiring management assets at risk
Legislation:
Guardianship and Administration Act 1990 (WA), s 43(1), s 64, s 64(1), s 119, s 119(3)(c)
Result:
Guardianship application dismissed
Plenary administrator appointed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Ms M Byrne
Represented Person : Ms M Elliott
Solicitors:
Applicant : Talbot & Olivier
Represented Person : Elliott & Co
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 Mr MDS made applications for guardianship and administration orders to be made with respect to his father, the represented person. The represented person suffered a stroke on 11 November 2005 from which he had poor intellectual recovery, and he now resides in a nursing home. The hearing took place on 7 June 2006, immediately prior to hearings for both guardianship and administration for the wife of the represented person. Following some discussion, Mr MDS was unable to identify any reasons why his father was in need of a guardian, and subsequently, that application was dismissed. The Tribunal appointed the applicant to the position of plenary administrator for a fiveyear period.
Application
2 Mr MDS made application under s 43(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) for the appointment of a guardian for his father, MS (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.
3 Present at the hearing were the represented person, Mr MDS (the applicant), the applicant's legal representative, Ms M Byrne, the wife of the represented person, Mrs JS, her legal representative, Ms M Elliott, the represented person's younger son, Mr GS, the represented person's daughter-in-law, Mrs FS and Ms Seskas, paid carer.
Capacity
4 Reports were received from Dr Gild, the represented person's general practitioner, dated 21 April 2006 and 6 May 2006, and Dr Viera, geriatrician, dated 13 January 2006 and 28 March 2006. In addition, reports were received from Janet Clark, Nursing Home Area Manager, dated 19 April 2006, and Aviva Lipman, social worker, dated 3 May 2006. All these reports indicated that the represented person is unable to make reasonable decisions in relation to his personal health care, living situation or his financial affairs.
5 None of the interested parties at the hearing disputed these opinions.
(Page 4)
Guardianship
Evidence
6 The represented person is currently accommodated in a nursing home. It is the view of the applicant that the accommodation meets his father's needs and he does not anticipate the need for this placement to be changed. The applicant has a good working relationship with the staff at the home and they approach him or his wife when any issues arise in respect to the represented person. They have also sought his consent for the represented person to see a physiotherapist.
7 In summary, any need for decisions concerning lifestyle, accommodation, medical intervention and general health decisions are made by the applicant in his role as eldest son of the represented person.
8 Mr GS, the represented person's younger son, offered no concerns about guardianship for his father, stating that his interest was focused on the possibility of the appointment of a guardian for his mother.
Findings
9 The reports received by the Tribunal from two medical practitioners, a social worker and the area manager of the nursing home all indicate that Mr MS is unable to make decisions in his own best interest with respect to those decisions that a guardian might be required to make on his behalf. The applicant is currently making such decisions and noone is disputing the appropriateness of this arrangement.
10 The hierarchy of those who may make decisions under s 119 of the GA Act falls first to an appointed guardian and second to a spouse. As, in this instance, the wife of the represented person has been found by the Tribunal to be incapable of making reasonable decisions in her own best interests, the next in the hierarchy is the applicant. Consequently, the Tribunal finds that under s 119(3)(c) of the GA Act, the applicant already has the necessary authority to make any decisions relating to medical treatment.
11 The current situation is a less restrictive alternative to that of an order under s 43(1) of the GA Act, and as a consequence, the Tribunal finds that there is no need for a guardian to be appointed to make decisions for the represented person.
(Page 5)
Administration
Circumstances of the Hearing
12 Applications were before the Tribunal for guardianship and administration, not only for the represented person but also for his wife 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 Mr MS and his wife, or that related more to the represented party 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.
13 Having considered the evidence presented in the various medical reports that the represented person is incapable of making decisions in his own best interests in relation to his financial circumstances, the Tribunal was obliged to determine if there was a need for an administrator to be appointed, and if so, who that person should be and the extent of his powers.
14 The applicant reported that all the assets of the represented person were held jointly with his wife, Mrs JS (the mother of the applicant) and that while she may have signed cheques from time to time, the primary manager of financial matters had always been the represented person.
15 This view was supported by Mr GS when the affairs of Mrs JS were under discussion. He submitted a carer's report that he had prepared for the benefit of the Tribunal in which he stated that "[the represented person] had always handled [Mrs JS]'s affairs … ".
16 The estate was not insubstantial, with joint assets of approximately $2.2 million on deposit at Bankwest. In addition, the represented person and his wife 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, his income was derived solely from interest on these investments.
17 The applicant stated that he had been involved in the affairs of his parents for the last 20 years as advisor and a "sounding board". He stated that he was well aware of the nature and extent of the estate. Two months after the represented person suffered his stroke, the applicant contacted Dr Viera for his opinion concerning the appropriateness of executing an
(Page 6)
- Enduring Power of Attorney. In his letter 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."
19 When asked directly who should be responsible for the management of his estate, the represented person said "[MDS] should handle my affairs". This viewpoint was reinforced when the represented person agreed with the proposition that MDS was the person he would choose for this responsibility.
20 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.
21 Mr GS said that joint administration between himself and his older brother, 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. At a later point, when the affairs of his mother, Mrs JS, were under discussion, he advised the Tribunal that one week after the represented person had been admitted to hospital due to a stroke, he had taken his mother 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.
22 Mr GS stated that "We thought Dad could empty the account and leave her with nothing". He then stated "We believed Dad and [MDS] 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 parents' affairs over the 70 years of their marriage, "[the represented person] 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".
(Page 7)
23 Mr GS also stated that he had the cheque book from the joint account and that Mrs JS signed cheques as required.
24 Until this point in the proceedings, the applicant was unaware that his mother 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 mother. 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.
25 In response to a statement from Ms Elliott, Mr GS stated that he was a discharged bankrupt. He asserted that his brother's company has been in receivership "with the tax office". Mr MDS 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.
Findings
26 The reports received by the Tribunal from two medical practitioners, a social worker and the area manager of the nursing home all indicate that Mr MS is unable to make decisions in his own best interests with respect to the management of his estate.
27 This estate of the represented person is substantial and the income it generates is sufficient for both him and his wife to pay their necessary expenses. The Tribunal is satisfied that the usual practice was for the represented person to manage the estate held jointly with his wife, Mrs JS, although the possibility that Mrs JS was also consulted from time to time is not discounted.
28 The Tribunal is satisfied that over the past 20 years, the represented person has actively sought the advice of the applicant in the management of this estate. The represented person told the Tribunal that the person he would choose to manage his estate is his son, the applicant. In turn, 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 the represented person would choose were he capable to do so himself.
(Page 8)
Orders
29 The orders of the Tribunal are:
1. The application made under s 43(1) of the Guardianship and Administration Act 1990 be dismissed.
2. Under s 64(1) of the Guardianship and Administration Act 1990, the applicant, Mr MDS, be appointed as plenary administrator for the estate of the represented person.
3. This order shall be reviewed on 7 June 2011.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C HILL, SENIOR SESSIONAL MEMBER
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