MHF and TF - [2013] WASAT 210

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MHF and TF [2013] WASAT 210

MEMBER: MS F CHILD (MEMBER)

HEARD: 1 AND 19 AUGUST AND 5 DECEMBER 2013

DELIVERED : 5 DECEMBER 2013

PUBLISHED : 6 MARCH 2014

FILE NO/S: GAA 2853 of 2013
GAA 2928 of 2013
GAA 3068 of 2013

BETWEEN: MHF
Applicant
AND
TF
Represented Person

Catchwords:

Guardianship and administration Review of orders appointing guardian and administrator Represented person with memory impairment and diagnosis of dementia Competing enduring powers of attorney and enduring powers of guardianship made in favour of sons and wife Represented person not returned to spouse's care after an outing Transfer of property of represented person to son at under value Wishes of represented person Suitability for appointment as guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 16(4), s 43, s 44, s 44(2), s 44(5), s 64, s 82(1), s 84, s 90, s 108, s 110, s 119
State Administrative Tribunal Act 2004 (WA), s 83(1)(b), s 87, s 87(1), s 87(2)

Result:

Applicant appointed limited guardian
Public Advocate appointed limited guardian to manage contact arrangements
Public Trustee appointed plenary administrator

Summary of Tribunal's decision:

The spouse of a man with a diagnosis of memory impairment applied to the Tribunal for guardianship and administration orders following the man not being returned to their home after an outing with his sons. The spouse sought legal advice and learnt that the represented person's interest in a property had been transferred to one son at under value some months before. The Tribunal made orders appointing the Public Trustee and Public Advocate as administrator and guardian.
Initially, the sons contended that their father could make his own decisions, and said that they believed he had mild memory impairment only. Later, on review of the orders, they conceded that he needed assistance to manage both his financial and personal affairs, and they supported the appointment of a guardian and an administrator for him. On review, all the parties supported the order confirming the Public Trustee as administrator.
On review of the guardianship order which had appointed the Public Advocate as guardian, the Tribunal appointed the spouse as limited guardian for the represented person to determine where and with whom he was to live, and to make decisions about services and treatment on his behalf. The Public Advocate was appointed as guardian to manage the contact the represented person had with his sons. The Tribunal found that the spouse of the represented person was suitable for appointment and did not accept the contention of the sons that there had been a failure to communicate medical matters to them and that she had a conflict of interest in relation to her care of the represented person. The Tribunal found that there was a need for an independent guardian to make decisions about contact, although it accepted that the regular fortnightly outings with the sons had been re-established since the return of the man to his home. The history and the apparent ongoing conflict between the spouse and the sons of the represented person indicated the need for an independent guardian to manage contact.

Category: B

Representation:

Counsel:

Applicant: Ms A Liston
Represented Person : N/A

Solicitors:

Applicant: Clement & Co Lawyers
Represented Person : N/A

Case(s) referred to in decision(s):

DB and MJB [2013] WASAT 73
GA and EA and GS [2013] WASAT 175
LC and JS [2007] WASAT 127
Medical Board of Australia and Woollard [2012] WASAT 209 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Reviews of orders

These reasons relate to decisions made on 5 December 2013 on review of orders made for TF (represented person) pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act) which provides for periodic review of any guardianship and administration order made.
The orders made in respect of TF were an administration order by which the Public Trustee was appointed plenary administrator of his estate on 1 August 2013 and a guardianship order made on 19 August 2013 by which the Public Advocate was appointed his plenary guardian.
On review, the appointment of the Public Trustee was confirmed, the guardianship order was revoked and new orders were made appointing MHF, the applicant and second wife of the represented person (spouse), as his limited guardian and the Public Advocate limited guardian to manage contact decisions.

Background

The represented person is a man of 74 years whose medical records disclose significant health problems including emphysema or chronic obstructive pulmonary disease, anxiety, depression and dementia.
The represented person has been married to his spouse for 19 years and was in a relationship with her for some years longer than that. He has three adult children from his previous marriage - sons JF and DF, and daughter, PFD.
On Sunday, 14 July 2013, JF and DF collected their father from the home he shares with his spouse to take him on a regular fortnightly outing, usually to a movie or for coffee. However, following the outing, they did not return him home. No prior arrangements were made with the spouse for an extended visit of the represented person away from his home. His sons took no clothing, personal items or medications for the represented person. One of the sons said later that they had arranged for medications to be provided by a doctor, having discussed the represented person's medical conditions with his own general practitioner some months before.

One of the sons contacted the spouse later in the afternoon and told her that the represented person would not be returned home. The spouse sought legal advice and applications were filed by her on 29 July 2013 seeking the appointment of a guardian and an administrator for the represented person.
The applications were brought on urgently on 1 August 2013, the Tribunal being satisfied that exceptional circumstances existed for the shortening of the period of notice. The represented person attended the hearing with his sons, DF and JF. The applicant spouse also attended and was legally represented.
The Tribunal was told that the represented person had executed a transfer on 21 April 2013 into JF's sole name of his interest in a property formerly held as tenants in common with JF. The transfer was registered with Landgate on 28 June 2013. It was also said at the hearing that the represented person's mail had been redirected, funds removed from bank accounts of the represented person and direct debits on the accounts dishonoured.
At the first hearing on 1 August 2013, the represented person's sons said that they had not returned their father to his home after the outing because he feared going into respite care when his spouse planned to travel overseas to see her mother, who was elderly and unwell.
Although the spouse's overseas trip was said to have been planned from 10 September to 4 October 2013, it may have been necessary for the spouse to leave earlier than planned, depending on her mother's condition.
At the first hearing, the Tribunal had before it a report of Dr RB, the represented person's general practitioner, dated 26 July 2013. The report notes that Dr RB has been the represented person's doctor for three years. Dr RB reports a diagnosis of 'cognitive decline 22/30 on MMSE'. The impairment is reported to have been first recognised by the doctor in 2010 and is described as 'progressive [with a] Fluctuating Mini Mental State Examination score never greater than 25/30'. The opinion expressed in the report is that the represented person is not capable of making reasonable judgments about his personal healthcare, his living situation or his financial affairs. Dr RB elaborates:
[The represented person] cannot understand the need for regular medication use. [He] lacks insight into consequences of decision‑making. Not able to formulate value/cost understandings.
Dr RB's opinion is that the represented person is 'incapable of giving an enduring power of attorney'. Dr RB also notes that it is 'not in the represented person's best interests to attend the hearing before the Tribunal as it may give rise to considerable distress caused by argument between his children and his current wife'. Dr RB describes the represented person as being able to make 'a limited contribution to the hearing'.
A copy of Dr RB's report and all the other material filed with the Tribunal with the applications was provided to the represented person's sons for inspection at the first hearing.
The material before the Tribunal includes a copy of the referral made by Dr RB to the Aged Care Assessment Team (ACAT) dated 18 January 2013. This documents notes 'medical conditions 10/2/2010 loss of memory ‑ severe and getting worse' and '15/8/2011 anxiety with depression. Memory/behaviour is variable but at times severe'.
A copy of a form prepared for a Centrelink carer payment and/or carer allowance dated 9 April 2013 completed by Dr RB records that the disability or medical condition of the represented person is 'Alzheimer's, COPD and depression'. The report notes that the represented person 'wanders and forgets' and that 'care [is] required for a significant period of each day'.
The represented person's sons disputed the medical evidence and said that Dr RB had told them their father had a 'minor memory loss', 'not severe' (T:23; 01.08.13) when they had met with him some months before with the written permission of their father and his spouse. In a later written submission by the sons, the reference to 'minor' memory impairment is qualified, and the represented person's sons say that Dr RB might have told them their father had moderate memory impairment.
JF acknowledged the represented person's short‑term memory 'isn't that good' (T:34; 01.08.13). JF said earlier in the hearing that he was aware of an ACAT assessment of their father at his home some months before and that a memory test had been conducted which he believed his father had 'failed' (T:27; 01.08.13).
JF said there should be further specialist medical assessment of their father, and the represented person's sons wished to obtain that assessment at Fremantle Hospital. However, JF agreed that they had not taken the represented person to a scheduled appointment with a geriatrician on 30 July 2013 while he was in their care. JF agreed that the spouse had advised him of the longstanding appointment, but maintained his father could make his own decisions about whether he attended the appointment or not. JF said they also believed that the specialist assessment had something to do with arrangements being made for respite care for their father while the spouse was overseas. The sons had not made enquiries of the spouse, the geriatrician or the general practitioner to seek clarification of this. JF said that he, his father and his brother had discussed the appointment and decided 'it wasn't necessary at this point' (T:26; 01.08.13).
Included in the material before the Tribunal is a Centrelink real estate asset review document dated 2 April 2013 which records that the represented person has a 40% ownership of a property at [address suppressed] valued at $435,000.
At the hearing, JF agreed that the represented person's share in this property previously held with JF had been transferred to the sole name of JF, for which JF had paid $60,000 into an account in the joint names of JF and the represented person which had been opened for that purpose. JF said that the funds were part payment of an interest‑free loan his father had given him 10 years before to buy out JF's former partner's interest in the property. His father's name had been put on the title at that time. JF said there was no written record of the loan agreement. He said he had rounded up the amount repaid to $70,000 as he was 'in a position to be able to do that at the moment financially' (T:30; 01.08.13). He said he had paid $10,000 as part payment some years before. He said he had arranged to refinance the property in 2013 for the express purpose of repaying his father.
JF agreed that he had not told the spouse of the transfer of the represented person's interest as he said the represented person had not wanted him to do so. JF said that they had not disclosed an Enduring Power of Attorney (EPA) dated 22 July 2012 or an Enduring Power of Guardianship (EPG) dated 17 March 2013 by which their father had appointed DF and PFD as joint attorneys and JF as enduring guardian. When asked about this, JF said in response that the spouse had not told them of an EPG and EPA executed by the represented person dated 15 April 2013 by which he had appointed her as attorney and enduring guardian. These documents were prepared by the solicitor acting for the spouse in these matters.

The Tribunal made orders on 1 August 2013 appointing the Public Trustee as plenary administrator of the estate of the represented person. The Tribunal accepted the opinions expressed in the report of Dr RB. He is the regular general practitioner of the represented person and has known him for three years. No other professional evidence was before the Tribunal.
The opinion of Dr RB expressed in the report that the represented person was not able to make reasonable judgments about his personal and financial affairs was consistent with the presentation of the represented person at the hearing as a person with significant memory impairment. From the represented person's comments at the hearings, it was clear he did not know where he was living and was unable to give an account of his circumstances. For example, at the hearing on 1 August 2013, the represented person could not say whether he had seen a movie on the day of the outing with his sons on 14 July 2013 only two weeks before. When asked why he had not gone home on that day, the following exchange took place (T:41; 01.08.13):
[MEMBER]: Your son said you decided ‑ ‑ ‑
[TF]:Yes.
[MEMBER]:‑ ‑ ‑ you weren't going back home that day.
[TF]:I don't know what it was that did it.
[MEMBER]:Yes.
[TF]:I was curious about that as well.
[MEMBER]:Were you?
[TF]:Yes, it just ‑ just happened, you know.
While JF asserted that the represented person's long‑term memory was 'reasonably good' (T:34; 01.08.13), the represented person incorrectly said he had been married for 45 to 50 years when, in fact, he and his spouse have been married for 19 years.
The report of Dr RB for the Tribunal is also consistent with other documents prepared by him (the ACAT referral and the Centrelink carers form). The Tribunal could not take further evidence from Dr RB to address the challenge to his written report by JF at the hearing as he was reported to be away at the time of the first hearing.
The Tribunal determined that it was not in the best interests of the represented person for the administration application to be adjourned in order to call Dr RB to give evidence, or for a further assessment of the represented person as proposed by JF. The Tribunal determined it was in the best interests of the represented person that the administration order was made on that day, as this might enable the Public Trustee, as administrator, to seek to set aside the transfer of the represented person's property interest: s 82(1) of the GA Act.
The EPAs were varied pursuant to s 108 of the GA Act and the attorneys directed not to act on the powers while the Public Trustee was appointed administrator of the estate of the represented person.
The guardianship application was adjourned as the Tribunal heard that the parties had agreed, following the expressed wish of the represented person made at the hearing, that he return to his home at the completion of PFD's visit from Sydney following the birth of her baby. The spouse agreed to these arrangements and the represented person's sons appeared to support this in the hearing. There was some discussion of the issue in the hearing, including the need for the represented person to be in a familiar environment, which goes on for some pages of transcript. The transcript of the hearing held on 1 August 2013 records, at page 60:
[MEMBER]:So everyone is understanding that, that when [daughter] goes, [the represented person] goes back to his wife.
[DF]:Yes.
The other consideration supporting the adjournment of the guardianship application was that the EPGs executed by the represented person within weeks of each other appointing his sons and then his spouse in two separate instruments, each with plenary authority, were clearly in conflict. However, any guardianship order made would be subject to the provisions in the GA Act in determining the hierarchy of decision‑making for the represented person. The guardianship application was adjourned to 13 November 2013 and the parties were alerted that an application pursuant to s 110N(1)(a) of the GA Act could be made to enable the Tribunal to make orders in relation to the EPGs.
Following the first hearing on 1 August 2013, the spouse made an application pursuant to s 110N(1)(a) of the GA Act for intervention in the EPGs executed by the represented person.
The spouse then sought a further urgent hearing, which was brought on 19 August 2013, as the represented person had not been returned to their home as had been agreed in the hearing on 1 August 2013.
At the hearing on 19 August 2013 (second hearing), the represented person's sons maintained that they had misunderstood the position agreed at the first hearing, and did not return their father home as he had changed his mind. JF said that the represented person was angry and distressed following their explanation to him some days after the first hearing about the purpose of the applications made to the Tribunal by his spouse.
By the time of the second hearing, the represented person had been interviewed for two hours privately by the Public Advocate's investigator at the home of the represented person's former wife and mother of his children, where he had been moved sometime in July 2013 following storm damage at his son's house where he had been living. The spouse was not told of his whereabouts. Consistent with his presentation in the first hearing, the represented person was reported by the Public Advocate's investigator to be disorientated and unable to give a clear account of where he was living or the reason for this. He was reported to be variable within the interview in his view as to where he wanted to live. One of the represented person's sons was reported to have postponed or cancelled a regular podiatry appointment of the represented person, and an appointment had been made with another general practitioner. The Public Advocate's investigator questioned whether these actions were in the represented person's best interests due to the need for continuity in his healthcare.
At the second hearing, the represented person said his wife 'would be my choice now' as a guardian (T:41; 19.08.13) and said he would return to their home if he had 'the okay' from his spouse and he could 'organise a lift with' one of his sons (T:44; 19.08.13).
At the conclusion of the second hearing, the Tribunal appointed the Public Advocate as plenary guardian of the represented person. The Tribunal determined that the represented person was a person for whom a guardian could be appointed as he was in need of oversight and care in the interest of his own health and safety. A guardian was needed primarily to determine where he was to live, but also to determine issues such as respite care when the spouse travelled overseas. The order was made a plenary one to avoid any ambiguity as to the scope of the authority of the Public Advocate in the face of the two conflicting EPGs which had been executed by the represented person.

The Tribunal suspended operation of both EPGs while the Public Advocate was appointed as guardian of the represented person pursuant to s 110N(1)(c) of the GA Act.
The guardianship order was set for review by 13 November 2013, to be heard together with the review of the administration order. Undertakings previously given by JF at the hearing on 1 August 2013 were confirmed by him at the second hearing; that is, that he would not withdraw funds from the joint account in the names of the represented person and himself and would allow the Public Trustee to collect funds from the account, and would not further encumber the property transferred to him by the represented person.
The listed date of 13 November 2013 was vacated because of the unavailability of the presiding member and the reviews were heard on 5 December 2013.

Legislation

On review of a guardianship and administration order pursuant to s 90 of the GA Act, the Tribunal may, as it considers appropriate, confirm, amend or revoke the orders.
To make an order (or confirm such an order on review), the Tribunal must be satisfied that the represented person is a person for whom orders may be made. To appoint an administrator of an estate of a represented person pursuant to s 64 of the GA Act, the Tribunal must be satisfied that the represented person is unable, by reason of a mental disability, to make reasonable judgments about his estate, and is in need of an administrator of his estate. Mental disability is defined under the GA Act to include dementia: s 3.
A guardian may be appointed if the Tribunal is satisfied, pursuant to s 43 of the GA Act, that the represented person is unable to look after his own health and safety, is unable to make reasonable judgments about his person or is in need of oversight and care in the interests of his own health and safety, and is in need of a guardian.
Section 110N provides for the revocation or variation of an EPG.
These provisions are subject to the principles set out in s 4 of the GA Act which apply to all proceedings commenced under the GA Act.
The principles provide that the primary concern of the Tribunal must be the best interests of the represented person. There is a presumption that persons are capable of making decisions about their person and about their estate unless there is evidence to the contrary to the satisfaction of the Tribunal. An order should not be made, or confirmed on review, unless there are no less restrictive alternatives to the making of orders to meet the needs of the person, and if orders are made, they should be made in the least restrictive terms possible. The Tribunal also must ascertain the wishes of the person as expressed or as gathered from their previous actions.
In the appointment of any guardian, the Tribunal must consider whether the person will act in the best interests of the person, is not in a position where their interests may conflict with the interests of the represented person, and is otherwise suitable to act as guardian of the represented person.
The question of suitability of the spouse as guardian is raised in these proceedings. To determine the question of suitability of a proposed guardian pursuant to s 44(2) of the GA Act, the Tribunal shall take into account as far as possible the desirability of preserving existing relationships, the compatibility of the proposed appointee with the person and with any appointed administrator, the wishes of the person, and whether the proposed appointee will be able to perform the functions vested in the guardian.
The Tribunal must not appoint the Public Advocate unless satisfied that there is no one else suitable and willing to act: s 44(5) of the GA Act.

The questions before the Tribunal on review

The provisions referred to above mean that the following questions are before the Tribunal on review of the orders:
1)Is the represented person a person for whom orders can be made? If so, is he is need of a guardian and an administrator of his estate or are there less restrictive alternatives to the making of these orders?
2)Are the EPAs or EPGs the represented person executed less restrictive alternatives to the making of orders?
3)If he is in need of a guardian and an administrator of his estate, who should be appointed in those roles?
4)For what period should the orders be made?
The Tribunal is also asked to make orders for the legal costs of the spouse to be paid from the estate of the represented person or by the sons of the represented person, JF and DF.

Evidence and material before the Tribunal

In the course of the hearings on 1 August, 19 August and 5 December 2013, the Tribunal heard from the following persons:
•TF, the represented person;
•MF, the represented person's spouse;
•JF, the represented person's son;
•DF, the represented person's son;
•AF, the represented person's brother;
•PFD, the represented person's daughter (by telephone to the second hearing);
•representatives of the Public Advocate;
•representatives of the Public Trustee; and
•Dr PM, geriatrician (by telephone at the December hearing).
The Tribunal received written submissions prepared for the spouse, submissions from the represented person's sons and from the daughter of the represented person, medical reports and other documentation referred to in these reasons, and submissions from the Public Advocate and the Public Trustee.

Wishes of the represented person

The represented person attended all hearings before the Tribunal and expressed his views and wishes at various times in the course of the proceedings. The Public Advocate's investigator who had interviewed the represented person privately reported at the second hearing that the represented person expressed inconsistent wishes in the course of the interview. The Public Advocate's investigator submitted that the represented person was vulnerable to suggestion and possibly easily led. She said he 'doesn't want to upset anybody' (T:45; 19.08.13).
The Tribunal considers that, generally, instruments such as EPAs and EPGs give an indication as to the wishes of a represented person.
The unwillingness of the represented person to upset others may be the explanation for his actions in executing conflicting EPAs and EPGs and perhaps for the differing views he is reported to have expressed about his marriage. The EPA which appoints DF and PFD jointly and which was executed on 22 July 2012 is the earlier document, and it might be argued (it was not) that this means greater reliance could be placed on it. On the other hand, counsel for the spouse says this document is a handwritten document produced without legal advice or assistance. This may be the explanation for the lack of an election in the acceptance as to when the power commences. This lack of certainty within the document creates real doubt about its validity. Nonetheless, it is accepted as an expression of the wish of the represented person at that time.
The EPA and EPG created in favour of the spouse were made after legal advice and assessment by the solicitor who drew them as to the ability of the represented person to instruct her. However, the represented person did not revoke the earlier instruments as he said he would, and Dr RB had given the diagnosis and reported his opinions as to the represented person's functioning. It is conceded for the spouse that the represented person was 'probably right on the cusp of incapacity' at the time of execution (T:9; 01.08.13) and doubt was expressed about all the documents. The conclusion that can be drawn arising from the conflicting documents executed by the represented person is that uncertainty and ambiguity is created about the durability or consistency of the represented person's wishes as expressed through these instruments.
The changing views of the represented person appear to be acknowledged by JF who reported a 'personality change' in the represented person and said they were 'playing catch-up' (T:53; 5.12.13). The brother of the represented person, AF, said that the represented person's deterioration was 'a bit quicker' than was expected by the family and this had caught the represented person's sons 'on the hop' and 'they would have done it before' (T:67; 5.12.13). AF agreed that they might have moved more quickly to give effect to what they believed was their father's previously expressed wish to separate from his spouse.
The Tribunal is to consider the wishes of the represented person as expressed both at the time and from his previous actions and, in this regard, although there was a separation early in their marriage, the represented person has been married to and living with his spouse for 19 years. Although he is reported by his brother to have been unhappy in his marriage for several years (the spouse said she was not aware of this), the represented person did not separate from his spouse.
Dr PM assessed the represented person as able to give preferences. In the hearing, when asked directly, he stated he wished to live with his spouse and that she be the decision‑maker for him. It is accepted that he may have given differing views to different people about his wishes in the past.

Medical evidence for the review

At the first hearing on 1 August 2013, the represented person's sons had asserted that further specialist medical assessment of the represented person at Fremantle Hospital was required, and, at the second hearing, DF said the sons had sought legal advice (T:35; 19.08.13). However, at the review hearing on 5 December 2013, they said that no further assessment or second opinion had been arranged regarding the represented person's capacity. The represented person's sons did not seek to call Dr RB to challenge his report. They produced no new medical or other professional evidence regarding the capacity of the represented person.
Prior to the review hearing in December 2013, the Tribunal requested a report from Dr PM, a geriatrician, who assessed the represented person on 29 October 2013. Her report provides a diagnosis of 'Early dementia, probable Alzheimer's type'. The condition is described as a 'progressive dementia, slowly progressive over seven to 10 years'. The doctor said she was 'unsure' whether the represented person could make reasonable decisions in relation to personal healthcare, living situation or financial affairs. She said she did not formally assess capacity.
Dr PM's letter to Dr RB, the general practitioner, a copy of which accompanied her report to the Tribunal, states the following:
…
… his sons removed him from his current wife and took him to Perth to live with one of them. This only lasted a week because after a storm the ceiling of [his son's] house fell in. After that they moved him into the home of his former wife where he stayed for a further four and a half weeks. [The represented person] apparently has no recollection of the events of this five and a half weeks.
…
Our clinic nurse did a MMSE where he scored 21/30. I performed the more sensitive MOCA where he scored 18/30. Most points were lost in the domain of delayed recall but also orientation, naming, verbal fluency and abstraction. Visuospatial and executive function[s] were both well preserved.
…
In oral evidence before the Tribunal at the hearing on 5 December 2013, Dr PM reported that the represented person's recall was 'very poor'. She said:
So his recall over a short period of time is very poor and that's one reason I question whether he would have capacity make complex decisions about things like accommodation and care.
…
… the fact that he couldn't recall a series of words after a period suggests to me that he wouldn't be able to recall complex information long enough to weigh up the pros and cons of his different alternatives and come to a decision. And if that was the case he would fail a test of capacity. (T:8 and 9; 05.12.13)
In relation to the testing undertaken, Dr PM said that although the MMSE score was a 'limited test', a score of '27 and above was considered to be within the normal range'. She said that the Montreal Cognitive Assessment (MOCA) was a more sensitive test and was 'more likely to pick up problems'. When asked what the represented person's score indicated she said:
Well, that suggests there's a moderate degree of dementia. If you actually look – he ‑ it wasn't just a problem related to memory. He scored low in a number of domains so it wasn't just delayed recall. He also wasn't entirely orientated. His language was impaired. Verbal fluency refers to the number of words beginning with a particular letter that he could name in a minute and his abstract thinking was impaired as well. So in order to have a diagnosis of cognitive impairment memory must be impaired but in addition, for a diagnosis of early dementia, other brain domains have to be affected and in his case there were impairments in quite a few domains of brain function. (T:10; 05.12.13)
JF asked Dr PM a question regarding the testing undertaken:
Yes. I was just going to ask you if the questions in the test are all sort of ‑ in the memory test were all aimed towards short-term memory problems?
and Dr PM replied:
In the dementias the main problem is short‑term memory. Long-term memory generally is preserved until very, very late in the disease. So typically if we're looking for dementia we're looking for short-term memory problems. (T:11; 05.12.13)
JF said the sons did not challenge the evidence of Dr PM but remain 'unsure' whether the represented person lacks capacity to make judgments about his person and his estate. JF said that he 'still could not beat [his father] at chess' and he was confused by this (T:14; 05.12.13). DF said there was 'obviously memory loss' (T:16; 05.12.13), but it was not clear to him whether this impacted on decision‑making. The represented person's sons concede that he is in need of oversight and care (although one son, DF, relates this to the represented person's breathing problems rather than his cognitive impairments).
The Tribunal accepts the evidence of a diagnosis of 'early dementia of probable Alzheimer's type' made by Dr PM who has assessed the represented person. Dementia is a mental disability for the purposes of the GA Act. As noted above, there is no conflicting medical evidence before the Tribunal. Further, the Tribunal accepts Dr PM's evidence of the impaired ability of the represented person to hold information in his memory for a sufficient time to apply it to complex decision‑making. Her evidence is consistent with Dr RB's opinion about the represented person's functioning - found in the reports prepared by him which are before the Tribunal - and the represented person's presentation in the three hearings he attended. His presentation in the hearings is consistent with the evidence of the spouse regarding his impaired functioning and dependence on others. Dr PM's report of her interview with the represented person to the general practitioner, and oral evidence that he was not fully oriented, was consistent with the report of the Public Advocate's investigator who also interviewed the represented person privately, outside the hearings. The represented person's brother acknowledges the memory impairment suffered by the represented person in the evidence he gave in the second and final hearings. The suggestion by the sons that the represented person's presentation at the hearings, which is manifestly impaired, was a result of stress of the hearings is rejected. Hearings before the Tribunal can be stressful, there is no doubt, but the represented person was pleasant, at times making jokes, and was not apparently distressed in the hearings.

Based on all the evidence, the Tribunal finds that the represented person remains a person for whom both an administration order and a guardianship order may be made. He is, by reason of his dementia and manifest memory impairments, unable to make reasonable judgments about his estate. The evidence of Dr RB that he did not understand the need for his medications, his son, JF's, evidence that the represented person required supervision and prompting about his medications, and the evidence of Dr PM that he cannot retain information about complex matters in his memory to apply the information to decision‑making, support the findings that the represented person is unable to look after his own health and safety, is unable to make reasonable judgments about his person, and is in need of oversight and care in the interests of his health and safety.

Is the represented person in need of a guardian and an administrator or are there less restrictive alternatives to the making of these orders?

The Public Advocate's delegated guardian (guardian) reports that the represented person spent the period his spouse was overseas in the respite facility first identified by the spouse and had been comfortable to go there. Contact with his sons had occurred without incident during this period in respite.
Although by the time of the review hearing the represented person had returned to his home with his spouse and fortnightly visits with his sons had been re‑established, there was broad agreement by the parties that a guardianship order should be made, but no agreement about who should be appointed.
The submission of the guardian referred to the past events, and contended that it may be prudent to appoint the Public Advocate as guardian. The guardian reported that the represented person's children held the view that there would be no communication about his health if the spouse simply exercised authority for treatment decisions as the person responsible under the less restrictive alternative available in s 110ZD of the GA Act.
JF, who had been appointed under an EPG executed by the represented person, did not assert that this authority should continue, and proposed the Public Advocate be appointed as guardian.

The spouse said she could not see any difference between an order of the Tribunal appointing her as guardian, if made, and the choice that the represented person had made, following legal advice, to appoint her in this role in April 2013.
The Tribunal finds there is a need for a guardian. The EPGs executed by the represented person have not and cannot operate as a less restrictive alternative to guardianship orders. The documents are in obvious conflict with the appointments of the represented person's son, JF, and the spouse, and the scope of authority granted to both is a plenary authority. There is therefore uncertainty as to who has authority to act for the represented person. Certainty can be provided by guardianship orders. The EPGs as a consequence must be revoked. In these circumstances, it is not necessary to make a finding as to the capacity of the represented person to execute either document.

Suitability for appointment

As the spouse proposes herself for appointment as guardian of the represented person, to appoint the Public Advocate as proposed by the children of the represented person, the Tribunal must find her unsuitable for appointment.
The guardian says that it is appropriate that the spouse be the healthcare decision‑maker for the represented person, as she attends all the appointments with the represented person. The guardian reports that the represented person's general practitioner supports this.
In supporting the re‑appointment of the Public Advocate, PFD, the daughter of the represented person, said in a letter received on 29 November 2013 that she 'felt that some health issues have been neglected and there has been a lack of further investigation into the severity of my Father's health', but she was then not available to elaborate on or substantiate her assertions in the hearing. In the second hearing, PFD said she had asked the spouse 'not to talk to [her] about anything to do with [the represented person's] health' because of her own serious health problems (T:37; 19.08.13).

DF said he had concerns about the care of the represented person by the spouse due to the cancellation in 2011 of private health insurance for the represented person. DF believed the spouse was responsible for this, as his father had denied knowledge about the cancellation when he had spoken to him about it. In reference to his sister, PFD's letter, DF also said that all three children were concerned about the failure to refer the represented person for assessment by a specialist, given the seriousness of their father's chest condition as described to them by Dr RB. DF conceded that referral to a respiratory medicine specialist had not been raised by the children with the spouse. It was also conceded that while the represented person was in their care between 14 July and 23 August 2013, they had not organised a referral for specialist assessment.
The guardian reported she had discussed with Dr RB the represented person's breathing difficulties and the possible future need for oxygen therapy, but at the time of the review, the guardian had not sought referral for a specialist assessment either.
Having conceded that the issue had not been raised with the spouse, DF then referred to an email from his sister, PFD, which he had forwarded to the spouse in February 2013 regarding a referral to a geriatrician. It took some time to clarify the specific allegations made (T:34 and 35; 05.12.13):
[MEMBER]:And what you're saying is that [the spouse] should have arranged a second opinion?
[DF]:No, I'm saying that a second opinion would be very helpful.
[MEMBER]:Yes. Okay. What I'm trying to get to here is to be clear about what is said that has been neglected in terms of [the represented person's] health.
[DF]:Okay. Yes.
[MEMBER]:So just specific to that question.
[DF]:Yes.
[MEMBER]:In relation to that allegation ‑ ‑ ‑
[DF]:Yes.
[MEMBER]:‑ ‑ ‑ what do you mean?
[DF]:Specific to that, given that there was such a large period of time between the email in February regarding the possible geriatrician's time to visit him, and Dr [RB] even expressed to us his concern and misunderstanding as to why the first appointment with [K] was so far from his initial consultation with himself. He couldn't understand why it would take that long for [the represented person] to be booked in with [K].
...
[MEMBER]:Yes. So there was a concern that in some way there was a delay between Dr [RB's] referral and the geriatric – the assessment by the geriatrician.
[DF]:Yes, that's correct.
[MEMBER]:And what is said that ‑ is that some neglect of [the spouse], is it?
[DF]:Well, that was his concern when we saw him.
Counsel for the spouse said any delay between the referral and the appointment in July 2013 with the geriatrician was explained by the need for the geriatrician to travel down from the major hospital to their location to assess patients in that catchment area. DF, in later evidence in conflict with his earlier evidence (T:44; 05.12.13) that Dr RB 'couldn't understand' the delay, confirmed the accuracy of this statement.
The example given by DF does not support the allegation that the spouse has neglected the represented person's health. DF's evidence that Dr RB, in April 2013, indicated to the sons that the spouse was culpable in some way for the delay in the represented person being assessed by a geriatrician must be seen in context of what actually occurred. Any additional delay in an assessment of the represented person by a geriatrician must be attributed to the actions of the sons, since it was they who did not take the represented person to the longstanding appointment in July 2013, and it was not until late October 2013 that the assessment by Dr PM took place. The assertion from the sons that the represented person did not attend the appointment because 'he didn't want to go' reflects poorly on them since they knew, on their own evidence, that their father had impaired memory and was suggestible. He was vulnerable and he was in their care. If, as DF asserts, the children had concerns about the lack of specialist assessment from February 2013, and Dr RB had in April 2013 expressed the concerns attributed to him by DF about the delay in the assessment, it was clearly a failure to act in their father's best interests that they did not ensure he attended this assessment. DF's evidence that the sons were concerned about the delay in assessment is also in conflict with the evidence of JF given at the first hearing, which DF did not challenge at the time, that the sons did not think that the geriatrician's assessment scheduled in July 2013 was necessary at that time.
The Tribunal places no weight on the contention of PFD, the daughter, supported by DF, that the spouse neglected the healthcare of the represented person; it is inconsistent with material before the Tribunal of the spouse's role in arranging assessment and treatment of the represented person. This is also not supported by the Public Advocate who has independently investigated the applications. In relation to the cancellation of the health insurance in 2011, nothing much can be drawn from this about the spouse's conduct, since it is not suggested by DF that the represented person lacked the capacity to make this decision for himself at that time.
The final allegation is that the spouse failed to communicate with the children about their father's health concerns. On their own evidence, the represented person's sons agree that the spouse spoke to them about Dr RB's opinion of their father's condition. The spouse prepared a folder of information and invited them to read it. The spouse says she advised the represented person's sons about Dr RB's opinion in January 2013 and spoke to them about what this might mean for the future, including that if she was unable to continue to care for the represented person at home as his condition deteriorated, his assets ‑ including his share of the property owned with JF ‑ might be called on to obtain access to residential care for him. In April 2013, she and the represented person gave written authority for the sons to speak directly to Dr RB about their father's health, which they say they did in late April 2013. It must be said that it appears that they misused this opportunity to obtain information about the represented person's medications, which facilitated their actions in July 2013. The spouse advised them of the specialist assessment appointment in July 2013 and asked the sons to take the represented person to the appointment.
Since the represented person has returned to his home, the spouse has telephoned DF to advise of the outcome of the assessment by Dr PM. She now says she will email them with regular updates on their father's health to avoid any possible miscommunication over the telephone.
The Tribunal does not accept that there has been a lack of communication by the spouse regarding the represented person's health.
DF points to a 'mutual lack of trust' (T:52; 05.12.2013) in their relationship with the spouse, which has developed since July 2013, as a reason that the Public Advocate should be appointed guardian of the represented person.
While it is accepted that there now may be a lack of trust between the represented person's sons and the spouse, this is largely of the sons' own making because of the events in July 2013. This lack of trust does not mean that the spouse is unsuitable for appointment as guardian of the represented person in respect of decisions other than management of contact with the sons. While his relationship with his children is reported by his brother, AF, to have been a priority for the represented person, their contact with him, although regular, has been limited to fortnightly visits ‑ his daughter, PFD, less so since she does not live in Western Australia. Given this, any ongoing tension in the relationship between the spouse and the children can be managed without this impacting on the represented person, especially since the Public Advocate is given the function to determine contact the represented person has with others.
The Tribunal accepts the undertaking given by the spouse that she will regularly update the sons about the represented person's medical matters by email, information which they will in turn provide to their sister, PFD.
At the end of the hearing, after the represented person had spoken about his wishes to be cared for by his spouse, DF raised the question of the spouse's health and put in issue her mental health. DF said she had been seeking medication for depression and he believed she slept very late. DF says he believed this to be the case since, when he had telephoned the represented person in the morning, the represented person had been in bed at 11 am on occasions. DF questioned the spouse's ability to act as a carer for the represented person, given the responsibility involved.
The Public Advocate's representative reported that this matter had not previously been raised. The guardian reported that the Public Advocate raised no issues in relation to the care of the represented person by the spouse, and had earlier indicated that the spouse's management of the represented person's healthcare had been appropriate. Counsel for the spouse said that no issues had previously been raised in respect of the spouse's ability to care for the represented person, and counsel described the personal comments made about the spouse as inappropriate and unfounded, a submission that the Tribunal accepts.
In respect of the criteria for assessment of suitability in s 44 of the GA Act, the represented person is again living with his spouse, who has resumed her role as primary carer which is his primary supportive relationship. From the material before the Tribunal, the spouse appears to appreciate, and to have responded to, the represented person's deteriorating condition and has sought appropriate referrals, including the ACAT assessment. She has identified and engaged services assessment by a geriatrician, respite care and regular podiatry for the represented person. She is reported to be in regular consultation with the represented person's doctor. She says she has 'no problem' with a referral for specialist assessment of the represented person's breathing as suggested by DF in the hearing. It is likely this will occur if the general practitioner recommends it. As the direct carer of the represented person, there is, as the guardian points out, a practical benefit to him of the spouse having the authority to make decisions about the represented person's healthcare and the services to which he should have access, as she is his direct carer and takes him to appointments. This is particularly so as the represented person has a progressive condition and his needs will likely increase. The Tribunal is satisfied, applying the criteria in the GA Act, that the spouse is able to perform the functions of guardian of the represented person.
The spouse supports the appointment of the Public Trustee and is agreeable to work with the trust manager to set in place suitable arrangements for the represented person's day‑to‑day financial needs.
The spouse's appointment as guardian is consistent with the expressed wish of the represented person who, when asked about the two conflicting EPGs, said the spouse 'would be [his] choice now' (T:40; 19.08.13).
In relation to the contact issue, although the regular fortnightly contact the sons have with the represented person has been re‑established since his return home, the history of this matter ‑ the stated lack of recognition by the sons of their father's impaired capacity and his vulnerability as a consequence, the underlying tension between the parties, and the lack of trust which has developed between the sons and the spouse since July 2013 ‑ supports the need for an independent guardian to manage contact. Contact is an area where there could be an escalation of tension and conflict between the parties and it is not in the best interests of the represented person that he be subjected to disruption, as occurred in July 2013.
Having found the spouse suitable for appointment as guardian of the represented person, other than to manage contact with the sons, the Tribunal revokes the order appointing the Public Advocate as plenary guardian and appoints the represented person's spouse as his limited guardian with the functions to decide where and with whom he is to live, and to make decisions about treatment and services on his behalf.
The Public Advocate is appointed limited guardian to determine the contact the represented person has with others and the extent of that contact.
As noted above, the EPGs are revoked.
In the review hearing, the Public Trustee reported that the transfer of the represented person's interest in the property to JF was under investigation.
The Public Trustee's representative reported that monies received by the represented person from JF ($60,000) had been recovered by the Public Trustee from the account held in the names of JF and the represented person.
Despite the represented person formerly being on the title of the property, the Public Trustee reports that JF maintains his assertion that the represented person loaned him money as an interest‑free loan, rather than intending to purchase an interest in the property which has since been transferred to him.
The Public Trustee submits that the transfer of the represented person's property interest at under value may have implications for his pension entitlements into the future, as it may be deemed by Centrelink as a gift. JF says that no advice was sought by him in relation to the potential Centrelink implications for the represented person of the transfer of the property interest to him.
The inadequacy of the competing EPAs as less a restrictive alternative to meet the represented person's needs for management of his financial affairs is underlined by the existence of the conflicting documents themselves and the inability of the represented person now to revoke one. On this issue the Tribunal accepts the evidence of Dr RB that the represented person is not now capable of executing an EPA.

The represented person is in need of an administrator of his estate to ascertain the extent of his estate and to take any legal action necessary to secure his estate so that it might be applied to meet his needs. This will include an investigation of whether the transfer of his property interest to his son, JF, should be set aside. There is no less restrictive alternative to meet this need. In the circumstances of the history of this matter, the appointment of an independent experienced administrator is in the best interests of the represented person.
All parties support the reappointment of the Public Trustee as plenary administrator of the estate.
The EPAs executed by the represented person, first in favour of his son, DF, and daughter, PFD, and then in favour of his spouse, are revoked as inconsistent with the appointment of the Public Trustee as plenary administrator of the estate pursuant to s 108 of the GA Act.

Costs

The spouse has claimed her costs associated with the proceedings from the estate of the represented person or to be paid from the sons of the represented person. Two tax invoices (both dated 30 October 2013) refer to fees charged of $5,200 in respect of the original applications filed (discounted from $8,073), and counsel's fees of $800 and $6,000 for the further application for revocation and appointment of an 'interim' guardian (discounted from $8,146). All of these figures are exclusive of GST.
The starting position in respect of claims for legal costs in the Tribunal is that parties bear their own costs: s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). This applies to proceedings brought under the GA Act. There are, however, provisions for the Tribunal to award costs in a particular case.
Section 87(2) of the SAT Act provides that the Tribunal may make an order for the payment by a party of all or any of the costs of another party. In addition, s 16(4) of the GA Act provides that the Tribunal may make an order for the legal costs relative to the proceedings to be paid out of the estate of the represented person in circumstances where the party seeking costs has acted in the best interests of the represented person.

Section 16(4) of the GA Act claim

The decision of LC and JS [2007] WASAT 127 identified factors which might justify an order pursuant to s 16(4) of the GA Act, including complexity of the case and conflict between the parties.
The circumstances of the case warranted the spouse seeking legal advice and representation before the Tribunal; it was only through the enquiries of the spouse's solicitor that the transfer of the property was revealed and the applications brought to the Tribunal on an urgent basis. It is accepted that the application for the appointment of an administrator was intended to protect the integrity of the represented person's estate. Equally, in the context of the cognitive impairment and depression suffered by the represented person, which was known to the spouse (and which she had, it is accepted, explained to the represented person's sons), her actions in bringing the guardianship application and the application to intervene in the EPGs were also protective in intent.
The solicitor for the spouse first gave notice of the costs application on behalf of the spouse at the first hearing. DF advised at the second hearing that the sons too had sought legal advice, but that the second hearing being brought on quickly had interfered with this. It is noted at the review hearing, which was held some months later, that the sons remained unrepresented.
The spouse's claim for her costs was renewed at the second hearing and written submissions then filed. The represented person's sons filed written submissions in response and further oral submissions at the review hearing which essentially argue that they have at all times acted in their father's best interests consistent with his wishes and do not believe they should be penalised for this. In a further written submission, the represented person's sons take issue with the calculation of the costs because of an error in the original order extracted, which was corrected under s 83(1)(b) of the SAT Act on 20 December 2013. They make no submission regarding the claim pursuant to s 16(4) of the GA Act.
Having found that the spouse acted in the best interests of the represented person and that in all the circumstances of the case legal representation of the applicant spouse was justified, the Tribunal can make an order pursuant to s 16(4) of the GA Act for the legal costs of the spouse, relative to the proceedings, to be paid from the estate of the represented person.

Section 87 of the SAT Act

As noted in a recent decision of the Tribunal (GA and EA and GS [2013] WASAT 175) at [43]:
… Generally, a costs order [pursuant to s 87(2) of the SAT Act] will only be made where a party has acted unreasonably and has, by that party's unreasonable conduct, caused another party to incur costs.
The Tribunal considers that this is a case where an order pursuant to s 87(2) of the SAT Act is appropriate. Although it is accepted that the Tribunal held two hearings at short notice which impacted on the represented person's sons' ability to prepare and respond to the applications, the first hearing was brought on because of the failure to return the represented person without prior notice or consultation with his primary carer and spouse and in circumstances which not unreasonably gave rise to concern about him, and because of the transfer of the property interest to JF. It would not follow that a costs order would be made against them, although, as noted, this background supports the s 16(4) of the GA Act order. However, the second hearing was necessary because the sons failed to return the represented person to his home as they had agreed to do at the first hearing.

The Tribunal does not accept the explanation that they misunderstood the agreement reached in the first hearing about the return of the represented person. The transcript is clear. The represented person had expressed his wish to return home in the first hearing in their presence. The sons acknowledged in the second hearing that they had 'explained' the applications to the represented person some days later (T:24; 9.08.13) and he became 'upset' and changed his mind about returning home (T:24; 19.08.13).
The nature of the applications, the statutory tests, and the evidence then before the Tribunal which supported the appointment of the Public Trustee had been explained by the Tribunal to all parties at the first hearing and the guardianship application adjourned on the basis of the agreement between the parties that the represented person would be returned home. The Tribunal finds that the sons acted inappropriately and unreasonably in not returning the represented person home as they had agreed. The Tribunal further finds that their 'explanation' to the represented person some days after the hearing of 'why the hearing was called' (T:25; 19.08.13) ‑ that is, why the spouse had brought the applications ‑ was an effort to undermine the represented person's relationship with his spouse. The represented person had said in the first hearing 'I don't have any problem with my relationship with [spouse]' (T:41; 01.08.13), but this is not what the represented person's sons say they believed to be the case. Their conduct in this regard did not take account of the vulnerability of the represented person, although they assert he was stressed by the proceedings. Given the statements the represented person made at the hearing on 1 August 2013, it is difficult to understand the reason for their conduct, which they must have appreciated would distress him. The second hearing would not have been required but for the actions of the represented person's sons.
As recently confirmed in DB and MJB [2013] WASAT 73 at [49] citing Medical Board of Australia and Woollard [2012] WASAT 209 (S) at [66] that when assessing costs the Tribunal should consider 'what reasonable allowance should be made, taking a robust and broad brush approach, for the work necessarily done to bring the proceedings to a conclusion'.
In this case, there were three hearings before the Tribunal, two of which were brought on at the request of the applicant on an urgent basis. As background to the hearings, all issues before the Tribunal were in dispute, including the capacity of the represented person. The competing instruments and the property transfer contributed to the conflict and complexity of the case.
The fees charged to the spouse were discounted from the itemised bill of costs and the Tribunal finds that the costs claimed are reasonable for the work required to be done in the circumstances.
In apportioning the costs, the Tribunal determines the following contributions should be made to the costs of the applicant spouse:
•$6,000 with the addition of counsel's fees of $800 to be paid from the estate of the represented person pursuant to s 16(4) of the GA Act; and
•$6,000 shared equally between the represented person's sons pursuant to s 87(2) of the SAT Act.
No allowance is made for GST.
As the costs orders issued in December 2013 did not specify a time by which the costs should be paid, the orders will be amended pursuant to s 83(1)(b) of the SAT Act. The costs must be paid no later than 21 March 2014. Although this is a short period of time from the publication of these reasons, the costs orders were made in December 2013 and so adequate notice of the orders has been given to the parties.

Orders

The Tribunal makes the following orders:

Administration

1.The order is revoked and an administration order in the following terms is substituted for it:
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 Guardianship and Administration Act 1990 (WA).
2.The enduring power of attorney dated 22 July 2012 by which the represented person appointed DF to be his attorney is revoked.
3.The enduring power of attorney dated 15 April 2013 by which the represented person appointed [spouse] to be his attorney is revoked.
4.This order is to be reviewed by 5 December 2018.

Guardianship

1.The order is revoked and a guardianship order in the following terms is substituted for it:
[Spouse] of [address deleted] is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person; and
(d)to determine the services to which the represented person should have access.

2.The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following function:
To determine what contact, if any, the represented person should have with others and the extent of that contact.
3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4.This order is to be reviewed by 5 December 2018.

Costs

1.$6,800 of the costs of the applicant be paid from the estate of the represented person no later than 21 March 2014 pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA).
2.$3,000 of the costs of the applicant be paid by JF no later than 21 March 2014 pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA).
3.$3,000 of the costs of the applicant be paid by DF no later than 21 March 2014 pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA).

I certify that this and the preceding [123] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER