MH
[2016] WASAT 80
•25 MAY 2016
MH [2016] WASAT 80
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 80 | |
| 06/07/2016 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:674/2016 | 6 APRIL & 13 MAY 2016 | |
| Coram: | MS F CHILD (MEMBER) | 25/05/16 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Public Trustee appointed administrator | ||
| B | |||
| PDF Version |
| Parties: | MH |
Catchwords: | Guardianship and administration Crossapplications for appointment of guardian and administrator Represented person with diagnosis of Alzheimer's disease and dementia Need for administrator of estate Need to secure estate to meet needs of represented person including payment of nursing home fees Informal management of estate not sufficient to meet needs of represented person Spouse not suitable for appointment as administrator Public Trustee appointed |
Legislation: | Guardianship and Administration Act 1990 (WA), s 65, s 68 |
Case References: | Nil |
Summary | Following hearings before the Tribunal of crossapplications for the appointment of an administrator of the estate of an elderly woman with a confirmed diagnosis of dementia, the Tribunal appointed the Public Trustee.,The Tribunal was not satisfied the woman's spouse was suitable for appointment as the administrator of her estate due to his memory problems demonstrated in the hearings and his failure to identify or plan to provide for her financial needs, which included entry into and payment for residential aged care. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MH [2016] WASAT 80 MEMBER : MS F CHILD (MEMBER) HEARD : 6 APRIL & 13 MAY 2016 DELIVERED : 25 MAY 2016 PUBLISHED : 6 JULY 2016 FILE NO/S : GAA 674 of 2016 BETWEEN : MH
- Represented Person
Catchwords:
Guardianship and administration Crossapplications for appointment of guardian and administrator Represented person with diagnosis of Alzheimer's disease and dementia Need for administrator of estate Need to secure estate to meet needs of represented person including payment of nursing home fees Informal management of estate not sufficient to meet needs of represented person Spouse not suitable for appointment as administrator Public Trustee appointed
Legislation:
Guardianship and Administration Act 1990 (WA), s 65, s 68
Result:
Public Trustee appointed administrator
Summary of Tribunal's decision:
Following hearings before the Tribunal of crossapplications for the appointment of an administrator of the estate of an elderly woman with a confirmed diagnosis of dementia, the Tribunal appointed the Public Trustee.
The Tribunal was not satisfied the woman's spouse was suitable for appointment as the administrator of her estate due to his memory problems demonstrated in the hearings and his failure to identify or plan to provide for her financial needs, which included entry into and payment for residential aged care.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 Reasons for the decision for the appointment of the Public Trustee as administrator of the estate of MH (represented person) made under the Guardianship and Administration Act 1990 (WA) (GA Act) were delivered on 25 May 2016. Some minor corrections and amendments have been made to the transcript of those reasons for clarity.
2 To comply with the GA Act, there is anonymisation of decisions and identifying material is removed before publication.
3 Applications were filed for the appointment of a guardian and an administrator for the represented person by two of her daughters, M and F (applicant daughters), on 12 February 2016.
4 Cross-applications were filed on 9 March 2016 by S, another daughter of the represented person, and FH, the represented person's spouse.
5 A letter dated 9 March 2016 by the applicant daughters sought the revocation of an enduring power of guardianship (EPG) believed by them to have been made by the represented person in 2014. The letter was treated as an application but was later withdrawn by the applicant daughters, as no EPG had been made by the represented person.
6 In standard orders made on 17 February 2016, the applications were referred to the Public Advocate for investigation and report at the hearing.
7 The issue in dispute between the cross-applicants at the first hearing was the question of whether the represented person could be safely discharged from hospital, which S said was due to occur within the week of the hearing. The applicant daughters asserted that the represented person could not be cared for safely at home due to her multiple health problems.
8 It was asserted on behalf of S and FH that the represented person could be discharged to her home; the services she had previously received reinstated; and that there was therefore no need for a guardian to be appointed for her.
9 In their application for the appointment of an administrator, S and FH said that the represented person's financial affairs should be managed in the same way as has occurred in the last number of years, with FH managing their joint financial affairs with no other change other than the formalisation of S and FH in the roles as administrators.
10 The applicant daughters assert that FH was struggling to make decisions in the represented person's best interests.
11 The applications were first heard on 6 April 2016. In brief oral reasons delivered on that day for the decision to appoint the Public Advocate as guardian of the represented person, the Tribunal found that the represented person was a person for whom both administration and guardianship orders could be made.
12 As there had not been sufficient time to hear the opposing applications for the appointment of an administrator and as the question of the need for an administration order had not been determined, the applications were adjourned to 13 May 2016, to be heard together with the review of the guardianship order made.
13 On 19 April 2016, the Tribunal appointed the Public Trustee, pursuant to s 65 of the GA Act, an emergency provision, to secure and manage the estate of the represented person after the Tribunal became aware of an attempt by S in April 2016 to register a caveat on the property jointly owned by the represented person and her spouse, FH.
14 As was explained on the day, the s 65 order was made ex parte with no notice to the represented person, as the Tribunal had found that the represented person was a person for whom an administration order may be made, and there was, in the judgment of the Tribunal, a need to make immediate provision for the protection of the represented person's estate.
15 At the hearing of the applications for the appointment of an administrator of the estate of the represented person on 13 May 2016, the Tribunal appointed the Public Trustee as plenary administrator of the estate of the represented person, with a review of that order in five years.
16 These are the reasons for that decision.
17 The Tribunal has received and considered the crossapplications filed, medical, social work, occupational therapy and other allied health reports, detailed written submissions from both sets of applicants including correspondence and documents including legal opinions. Over the hearings conducted before the Tribunal, it has also heard oral evidence from the applicants, from Dr SB and Dr JO, and oral submissions on behalf of FH and S on 6 April, and on 13 May 2016, oral submissions made on behalf of FH.
18 The Public Advocate's representative visited the represented person in hospital prior to the hearings in order to obtain her views and wishes, and provided a report of that interview to the Tribunal prior to the first hearing. The Public Trustee, acting under the s 65 order, provided a report to the final hearing.
19 The Tribunal has also considered information provided in the course of the hearing conducted on 19 April 2016 dealing with applications made in respect of FH and at which the s 65 order made for the estate of the represented person was announced.
20 The represented person has not attended any hearings before the Tribunal.
21 The represented person is an 88yearold woman who has a diagnosis of Alzheimer's disease. She was admitted to hospital in January 2016 following a fall and a broken arm/shoulder. She was transferred to another hospital in midFebruary 2016 and then transferred from that hospital to a third hospital. She was discharged from the third hospital to a nursing home in early May 2016.
22 According to the documents before the Tribunal, the represented person was first admitted to hospital with a fractured humerus, a urinary tract infection, cellulitis of the lower leg and malnutrition. The represented person suffered complications in hospital, including what is reported to be aspiration pneumonia. The represented person's medical history, according to hospital records, includes a previous diagnosis of dementia, a history of falls with injuries, including a broken hip in 2013, oesophageal cancer and treatment of infections.
23 Prior to admission to hospital in January 2016, the represented person was cared for at home by her spouse, FH, and daughter S, and received some services.
24 In material filed on 6 April 2016 by S, she says that she moved back to Perth in 2005 and into her parents' home to provide care and support to the represented person and FH. S states she has had 10 operations in the last 10 years but was able to provide daily assistance to the represented person and to FH to enable them to live in their home.
25 The applicant daughters say that S was made redundant from her job as a solicitor and moved in with their parents for what they say their parents said at the time was a temporary arrangement until she 'got on her feet'. Whatever the position, it is common ground that S has lived with the represented person and FH since that time, and while living with them has provided support and care to the represented person, including but not limited to liaising with service providers such as Silver Chain, who were providing wound management of pressure sores suffered by the represented person.
26 S has had at times her own mobility restrictions but says that this does not prevent her care of her parents.
27 The support that S and FH have provided to the represented person over many years of her dependence on them was acknowledged by the applicant daughters in the hearing on 6 April 2016.
Principles to be observed
28 In all proceedings before the Tribunal commenced under the GA Act, the Tribunal is bound by principles which provide that there is a presumption of capacity of the person for whom applications are made, that orders are not to be made unless needed, and that there are no less restrictive means by which the represented person's needs may be met. Any orders that are made should be made in the least restrictive terms possible; the wishes of the person concerned should be ascertained; and the primary concern of the Tribunal is the best interests of the represented person.
Is the represented person a person for whom an administration order can be made?
29 An administration order can be made where the Tribunal finds that the person is unable, by reason of a mental disability, to make reasonable judgments about any or all of her estate, and that she is in need of an administrator of her estate.
30 In the reasons delivered on 6 April 2016 for the decision to appoint the Public Advocate as guardian of the represented person, the Tribunal found that the represented person was a person for whom both guardianship and administration orders could be made.
31 Turning to the medical evidence before the Tribunal on 6 April 2016, that evidence included a report of Dr SB, geriatrician, dated 5 April 2016, which gives a diagnosis of the represented person of probable Alzheimer's dementia, which the doctor prescribes as 'progressive'.
32 Dr SB's report is consistent with the medical opinion of Dr JH, geriatrician, in a report dated 12 February 2016, that the represented person likely has 'advanced Alzheimer's dementia', which he described as 'progressive'. These reports are consistent with that of Dr GS, general practitioner, dated 11 February 2016, who says he has known the represented person for 15 years, is her regular medical attendant and last saw her on 12 January 2016.
33 Dr GS gives a diagnosis of dementia and says he first recognised the impairment in August 2009. He describes the represented person's condition as 'severe but worse with analgesics'.
34 An occupational therapist's report from the hospital dated 15 February 2016 states that the represented person is 'a two person assist for transfers' and is dependent for all her activities of daily living. The reports before the Tribunal also refer to double incontinence and pressure areas on the skin of the represented person which require nursing care.
35 All three doctors referred to give opinions that the represented person is incapable of making decisions about her personal healthcare, her living situation or her financial affairs. Dr SB, in an email to the Tribunal dated 10 May 2016, states that the represented person has a formal diagnosis of Alzheimer's dementia and lacks capacity in all domains.
36 Dr SB and Dr JO, Dr B's registrar, gave oral evidence by telephone to the hearing on 13 May 2016. In her oral evidence, Dr SB confirmed the diagnosis of Alzheimer's disease. Dr SB said she had advised FH and S of the diagnosis on 30 March 2016. Dr SB said that the diagnosis had been made following assessments and a narrative given by S of a threeyear history of 'memory changes' in the represented person. The evidence of Dr SB was not challenged in the hearing.
37 The represented person was interviewed at the hospital by the Public Advocate's investigator, who reports that the represented person was unable to provide informed views about the matters raised, was unable to indicate where she was or what type of facility she was in.
38 In the application filed by S and FH, and in the first hearing by S, it was asserted that prior to her hospital admission in January 2016, the represented person was able to 'talk coherently and [was] able to make most decisions'. The application filed questions any diagnosis of significant dementia prior to 13 January 2016. Further, in the application, FH and S question any conclusion of advanced dementia and the need for nursing home placement.
39 In her evidence on 6 April 2016, S said that, while dependent on care, the represented person was managing very well at home up until her admission to hospital in January 2016, and that in S's view, the represented person had deteriorated in terms of her cognition, mobility and continence during the hospital admission because of the lengthy hospital stay and the transfers within the hospital system.
40 S attended the Aged Care Assessment Team (ACAT) assessment of the represented person which was conducted at her home in October 2009. In her submission, S maintains she was not aware of the ACAT assessment conclusion, which reported to the general practitioner, Dr GS, that the represented person's shortterm memory deficits and impaired cognition were apparent in conversation. S states that she was not told of a cognitive impairment in the represented person by Dr GS until 4 June 2014. S challenges the ACAT assessment and says that the assessment did not take account of the represented person's medical condition or treatment.
41 This contrasts with the material filed by the applicant daughters who say their mother was given a dementia diagnosis in 2009.
42 In the first hearing, S reported a discussion with Dr SB in which she asserts that Dr SB stated that the represented person's impaired cognition may be related to interference by medication that the represented person has been on for some time for a cardiac condition, and by a resolving delirium. S stated in the hearing that she was hopeful of an improvement in the functioning of the represented person based on this advice from Dr SB (T:16; 06.04.16).
43 Although S was alerted in the course of the 6 April 2016 hearing that Dr SB's report did not refer to these factors, S maintained her position and did not refer to the represented person's diagnosis of Alzheimer's disease, which the Tribunal accepts she was told on 30 March 2016 by Dr SB. The Tribunal finds that S was less than frank in her evidence and submissions to the Tribunal on this issue.
44 Given the role S reports she plays in the life of the represented person attending both the ACAT assessment in October 2009 and subsequent medical appointments with both the represented person and FH, and arranging services on behalf of the represented person and Dr SB's reference in her evidence that the represented person's diagnosis of Alzheimer's disease was based in part on the narrative provided by S of a threeyear history of memory changes, the Tribunal finds it implausible that S was not aware of the progressive cognitive impairment experienced by the represented person.
45 The assertion that the represented person was able to make most decisions prior to her January 2016 hospital admission is not consistent with Dr GS's evidence and with the conduct of the represented person's affairs. It is submitted by the Public Advocate's investigator and accepted by the Tribunal that there was a contrast in the conduct of the represented person's affairs by S and FH, in that an enduring power of attorney (EPA), an EPG and a Deed of Occupancy were signed by FH in 2014 but not by the represented person.
46 A letter dated 28 July 2014 from solicitors referring to independent legal advice to FH does not refer to the represented person, and yet one of the documents on which it is said the solicitors provided independent advice is a Deed of Occupancy of a property in which the represented person was a joint owner. No letter addressed to the represented person purporting to give her independent legal advice has been provided to the Tribunal, so it is assumed that no such letter exists.
47 The explanation given by S to the Public Advocate's investigator, when the contrast was raised with her by the investigator, is that the represented person would be distressed and embarrassed if asked to execute an EPA, and an EPG is not accepted by the Tribunal. The Tribunal finds it is more likely than not that S was aware of the impairment and the consequent incapacity of the represented person much earlier, and probably prior to the drawing of the deeds in 2014 and F executing the EPA and EPG.
48 As noted on 6 April 2016, the Tribunal was satisfied, on the medical evidence before it at that time, that the represented person was a person for whom both an administration order and a guardianship order may be made. The medical evidence of Dr SB on 13 May 2016 is consistent with the earlier reports. Having regard to the medical evidence, the Tribunal confirms the finding that the presumption of capacity is set aside.
49 The represented person has dementia and, by reason of her dementia, is unable to make reasonable judgments about all of her estate and is therefore a person for whom an administration order may be made.
50 As stated, the principles provide that there must be a need for an order, even where a person has lost capacity. The Tribunal is satisfied that the represented person is in need of an administrator of her estate.
51 The represented person's estate, according to the application filed by S and FH, includes jointly held assets with FH, a house property, a house overseas, shares, rental income, and bank deposits of about $100,000. Her income is reported in the application filed by S and FH to include an overseas pension. In the report of the Public Trustee filed for the 13 May 2016 hearing, the represented person is reported to have been granted an Australian pension from 21 April 2016.
52 In that report, the Public Trustee states that the represented person has been admitted to residential aged care and that the refundable accommodation deposit (RAD) charged is $445,000, reported in the course of the hearing by counsel for FH to be increasing to $550,000 shortly. The Public Trustee reports that if none of the RAD is paid as proposed by the applicant daughter so that the house does not have to be sold, the represented person will be liable for a daily accommodation payment of $76.56 per day in addition to the basic daily care fee of $48.25.
53 Given the asset position of the represented person, she may also be asked to pay a meanstested care fee. The expenditure on nursing home care fees alone, not including the meanstested care fee which is yet to be assessed, has been calculated by the Public Trustee to be $1,747.34 per fortnight. The represented person's income has been reported at $1,460 per month, not including the Centrelink pension.
54 The Public Trustee calculates a shortfall of around $450 per fortnight of expenditure over income in accommodation charges. According to the report, there will also need to be consideration of how the represented person's share of costs of the house will be met in the future. There was also identified in that hearing an immediate need to execute the agreement with the aged care facility where the represented person lives to secure her placement there.
55 The complexity of the financial arrangements for the represented person is clearly beyond her, given her dementia. The represented person does not have an EPA. In determining whether the represented person is in need of an administrator of her estate, the Tribunal must consider whether the represented person's needs might be met by less restrictive means other than the formal appointment of an administrator of her estate.
56 The Tribunal finds that the represented person's needs include the need to secure her estate for her use and benefit as required for her future needs, including the payment of nursing home fees. The Tribunal finds that informal means to achieve this end cannot be relied on in the context of the history of the failure by S and FH, who the Tribunal finds have been managing the represented person's affairs informally for many years, to recognise and assert the represented person's interests in the house property jointly owned by the represented person and FH.
57 Turning to that history: in April 2014, a draft deed was drawn between FH, the represented person and their four children, which provided, in part, that FH and the represented person agreed to transfer the house to S, who would become the sole registered proprietor on condition that S pay to each of her three siblings $118,750. At clause 4 of the deed, FH and the represented person agreed to gift all of the chattels, household contents, furniture and personal effects located at the house to S on condition that S paid a further $6,250 to each of her three siblings.
58 In her submission, S states that the Deed of Family Arrangement (Deed) was exchanged for signature between the parties to the Deed and her brother signed the Deed, but it was not completed and was withdrawn on 3 May 2014. The Deed was not signed by the applicant daughters, who say they sought assurances from S about their parents' tenure in the property which they say were not forthcoming from S. S complains in her written submissions to the Tribunal that the applicant daughters did not raise the issue of capacity of the represented person at the time, and as a result she suffered financial loss, presumably because of the legal costs expended in drawing up the Deed.
59 Had the Deed been executed, the represented person and FH would have become tenants at will in their former home. These socalled 'assets for care' arrangements provide illusory or uncertain benefits and little or no protection for the elderly transferors, and certainly the Deed itself is silent on the accommodation needs of the parents, as is pointed out in the legal opinion provided to the Tribunal. The opinion obtained by S addresses the conflicts between S and the represented person, which would preclude S's appointment as guardian of the represented person. No conflicts are said to exist, and it is noted that S no longer proposes herself as guardian of the represented person. Notwithstanding the opinion of counsel that the Deed has no present relevance to the applications before the Tribunal, the Tribunal finds that the Deed is evidence of an inability of FH to consider and plan for the future needs of the represented person when she had a diagnosis of dementia and for whom the question of residential aged care had already been raised with him following her admission to hospital in 2013, according to S's own written submissions.
60 Following the failure to execute the Deed, a Deed of Occupancy was reportedly drawn up in July 2014 between S and FH, together with a right to purchase the property by S. The represented person was not a party to the Deed of Occupancy or the right to purchase. On 14 April 2016, S lodged the Deed of Occupancy dated 28 July 2014 with Landgate and attempted to effect registration of the interests purportedly created by it.
61 In the caveat lodged, the Deed of Occupancy is said to be made between S, described as a co-occupier and optionee, and F, a registered proprietor. There is no reference to the represented person, despite her being a joint owner with FH of the property. The caveat was lodged but not registered, as requisitions were made by Landgate, as the represented person, as noted, was a registered proprietor of the land in question but not a party to the Deed of Occupancy.
62 In counsel's opinion, previously referred to, dated 14 April 2016, doubt is raised about the enforceability of the Deed of Occupancy. It is unclear what was to be achieved by S by the registration of the caveat on the jointly owned property of the represented person and FH. At the time of S's attempt to register the caveat, the Tribunal is satisfied that S and F knew of the represented person’s diagnosis of Alzheimer's disease and the recommendation that the represented person enter residential aged care which was given by Dr JH as early as January 2016.
63 S knew the applications had been filed with the Tribunal for both the represented person and FH. She had attended the hearing before the Tribunal and was aware that the Public Advocate had been appointed as guardian of the represented person with functions which included admission of the represented person to respite care or transitional care in the determination of services. Given the reported assets of the represented person, it was likely that if the represented person entered residential aged care, a residential aged care deposit would be required for that entry.
64 As noted, the key issue in dispute between the crossapplicants before the Tribunal at that first hearing regarding the represented person was whether the represented person should enter residential aged care, as had been recommended by Dr JH who had seen and assessed the represented person in hospital in January 2016. The residential aged care placement was resisted by S, and reportedly by FH, throughout the proceedings, although in the hearing on 19 April 2016 of the applications made for him, FH expressed his anxiety about the reportedly imminent discharge from hospital of the represented person to her home.
65 He described her as 'being kicked out for bureaucratic reasons', and that 'we haven't any preparations to bring her home' (T:15; 19.04.16). This statement was in striking contrast to the lengthy written submissions about the proposal for the care of the represented person at home, and the evidence of S at the hearing on 6 April 2016 and the submissions made on both their behalf. The problem identified by FH in the admission on the represented person to care was 'we didn't have the resources to pay to go there' (T:17 and 18; 19.04.16).
66 As S, according to her submissions, had researched nursing home placements for the represented person, she would have been aware of the potential requirement to pay a bond to secure such a placement, as FH appears to have been. Even if the Deed of Occupancy was unenforceable as against the represented person, it would require someone independent of FH and S, who are both parties to the Deed of Occupancy, to assert this position, as the represented person clearly cannot do this for herself.
67 The position of FH is also problematic, given his demonstrated reliance and dependence on S and his own obvious difficulties demonstrated in the hearings. It is speculation, but the attempt to caveat the interests purportedly created by the Deed of Occupancy, with no regard to the rights or interests of the represented person in that property, might be seen as an effort by S to put the house property beyond the reach of the represented person or her appointed administrator should it be needed as a resource to fund her aged care. The timing of the lodgment of the caveat tends to support this explanation.
Who should be appointed as administrator?
68 The applicant daughters supported the appointment of the Public Trustee as administrator in the hearing on 13 May 2016. In the applications filed, and in later submissions filed on behalf of S and FH, the appointment of FH, or FH and S as joint administrators, is proposed. At the hearing on 13 May 2016, S reserved her position. Through counsel, FH proposed himself for appointment as sole administrator.
69 When making the appointment of an administrator, the Tribunal must be satisfied that the proposed appointee can perform the functions, will act in the best interests of the represented person and is otherwise suitable for appointment (s 68 of the GA Act).
70 Applications are before the Tribunal for FH for the appointment of an administrator and a guardian for him, and for intervention in an EPG signed by him. The matters are adjourned and referral has been made, at the request of the Tribunal through the Public Advocate by FH's general practitioner, to a psychogeriatrician for specialist assessment of his capacity, but he has refused to go for the assessment on legal advice.
71 It is submitted that it is unfair to determine the application for the represented person while the applications for FH remain undetermined, as he proposes himself for appointment as administrator of her estate.
72 The Tribunal does not accept this submission. The obligation of the Tribunal in determining the applications before it for the represented person is to have as its primary concern her best interests. Other considerations must be secondary to that, even unfairness to other parties.
73 The Tribunal finds that FH is not suitable for appointment as the administrator of the estate of the represented person. In his presentation at the Tribunal in hearings, FH has demonstrated difficulty in recalling information and is manifestly reliant on S, to whom he repeatedly refers questions put to him. Up until the final hearing, S and FH had the same legal representation.
74 The Tribunal was notified of new representation for S on 12 May 2016. The Tribunal alerted her former representative to the apparent issues of conflict at the earlier hearing. The same representative who acted for S and FH continues to act for FH and has instructed counsel. Although the Tribunal was assured by counsel she had met directly with FH and he could give her instructions, in the hearing FH presented as confused and at times disoriented to time.
75 In the course of the hearing on 13 May 2016, FH, in response to questions about financial arrangements of the represented person or himself, said he could not recall or could not remember, and repeatedly referred questions to S. At one point, in response to a question as to whether he had applied for a pension himself, he said, 'I do believe so, but again, you know, I leave all of that to my daughter S' (T:50; 13.05.16). When asked about his regular bills, he said, 'I can't remember' (T:51; 13.05.16).
76 When asked about a written proposal from his applicant daughter for payment of the aged care fees, FH appeared to be confused and was unable to respond to questions about it, despite it having been submitted on his behalf that he adopted the proposal. When asked about the represented person's admission to hospital in January 2016, he correctly identified the reason for admission as damage to her shoulder; however, he said that the represented person had been there 'about two years' (T27; 13.05.16).
77 It is true that the represented person was admitted to hospital in 2013, but it was clear to the Tribunal from the discussion with FH that FH was referring to the more recent admission. FH could not recall, without prompting, the name of the aged care facility into which the represented person had been admitted and where he visits at least once per day (T:48; 13.05.16).
78 Even after the representative of the Public Trustee had spoken to her report in the hearing regarding the residential aged care fee arrangements and the amount of the RAD, when asked about the amount involved, F said, 'I would refer you to my daughter S on that. She might know more about it' (T:49: 13.05.16). When asked if he had heard the Public Trustee's report which dealt with the RAD and which had just been given, F said, 'I can't remember clearly' (T:49; 13.05.16). FH is repetitive in his comments, and his statements to questions asked are not always responsive. It is clear he is anxious and somewhat confused.
79 Even allowing for the effect of stress to FH associated with the represented person's hospital admissions and the proceedings before the Tribunal, he presents with obvious difficulties, and his dependence and reliance on S is marked. His evidence and his presentation in the hearings is consistent with the reports of the hospital social worker that FH delegated his authority to make decisions for the represented person to S, and with the assertions of the applicant daughters that FH is under the influence of S and cannot act independently of her.
80 In the submissions filed by her, S states she has been assisting 'administratively' in the payment of the represented person's and FH's household accounts, but from FH's responses in the hearing, it is clear her assistance goes beyond this. A list of transfers, said to be reimbursements from the account of the represented person and FH to S, have been presented to the Tribunal. It is asserted by the applicant daughters there has been a lack of accountability on the part of S about the household finances, and that she has not contributed to the household by a regular payment of rent or board which may alleviate the financial stress on FH.
81 It is not necessary to decide these issues as S does not, at the present time, propose herself as administrator of the estate of the represented person.
82 Even if the Tribunal did not find that FH presents with demonstrated difficulties in understanding the financial management needs of the represented person, the Tribunal could not appoint him as administrator, given his failure to identify the interests of the represented person in respect of the execution of the Deed of Occupancy.
83 The statements of FH in the hearing when he agreed to the appointment of a Public Trustee, despite earlier submissions that he should be appointed, reinforces his commitment to S and his inability to differentiate the needs of the represented person from those of S and himself (T:58; 13.05.16).
84 Although the Tribunal acknowledges that it would in all likelihood not be the wish of the represented person, in her best interests, the Tribunal appoints the Public Trustee as the plenary administrator of her estate.
85 In light of the progressive nature of her illness, the complexity of the issues confronting her and what has been identified as longstanding conflict between some of the children of the represented person about her needs, the order is made for the longest period possible.
Orders
The Tribunal declares that [MH];
(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:
1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. This order is to be reviewed by 13 May 2021.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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