MK
[2019] WASAT 73
•11 SEPTEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MK [2019] WASAT 73
MEMBER: JUDGE T SHARP, DEPUTY PRESIDENT
MS F CHILD, MEMBER
MR S WILLEY, MEMBER
HEARD: 4 SEPTEMBER 2019
DELIVERED : 11 SEPTEMBER 2019
PUBLISHED : 17 SEPTEMBER 2019
FILE NO/S: GAA 2051 of 2019
MK
Represented Person
Catchwords:
Guardianship and administration - Needs of person - Best interests
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 17A, s 43(1)(b), s 43(1)(c), s 44, s 44(1), s 44(2), s 64(1)(a), s 64(1)(b), s 68, s 84, s 110ZD
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 32
Result:
Decision affirmed
Category: B
Representation:
Counsel:
| Represented Person | : | No appearance |
Solicitors:
| Represented Person | : | No appearance |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Application
This matter concerns the represented person MK. It comes before the Tribunal by way of an email from LK to the Tribunal dated 10 June 2019 which LK copied to her daughter KK. The content of the email was as follows:
I wish to appeal the decision made in SAT Order GAA 930/2019, as I feel that Senior Sessional Member Anne Donnelly has made an error in judgment and an error in law.
The Tribunal decided to treat this email as a joint application by LK and KK under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) for a review of Member Donnelly's determination.
The matter was heard on Wednesday 4 September 2019 before a Full Tribunal. At the end of that hearing on that date, the Tribunal reached and gave its decision, but, because some of the parties attended in person and some parties attended by video, the Tribunal was concerned that the parties might not be able to hear the Tribunal's reasons for its decision. Accordingly, the Tribunal adjourned the hearing to another day when it could give those reasons without interruption or the need to repeat anything. The Tribunal intended to provide the parties with a transcript of those reasons but then decided to publish written reasons.
These are those reasons, taken from the transcript and edited where required.
Section 17A of the GA Act provides that when the Tribunal constituted by one member makes any determination, a party aggrieved by that determination may request the President of the Tribunal to arrange for a full Tribunal to review that determination. A full Tribunal comprises the President or a Deputy President plus two other members.
MK is an older woman who lives at a care facility. MK has been diagnosed with dementia with anxiety/paranoid behaviour.
The applicants by their application seek a review of a decision made by Senior Sessional Member Donnelly on 15 May 2019. We will detail the orders made by the single member on that date shortly, but in summary that decision includes the decision to appoint JJ (MK's sister) and PLD (JJ's daughter and MK's niece), as joint limited guardians of MK and to appoint the Public Trustee as the administrator of MK's estate.
A review under s 17A of the GA Act involves a fresh consideration of the matters that were before the single member and of any new material whether or not it existed at the time of the original decision; s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'; s 27(2) of the SAT Act.
Section 32 of the SAT Act provides that the Tribunal is bound by the rules of natural justice, shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. The Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such a manner as it thinks fit.
Proceedings in the Tribunal
The hearing on 4 September 2019 was attended by:
•the applicants, LK and KK;
•MK's sister, JJ and JJ's daughter, PLD; and
•SJ who is JJ's son and a nephew of MK.
JJ, PLD and SJ all attended by video conference. LK and KK attended in person. MK has other relatives. They were not in attendance at the hearing.
The Public Trustee was not in attendance, but has been in contact with the Tribunal since the application was lodged, has filed a report and confirmed availability at the hearing if needed.
The decision under review
The decision under review, made by the single member on 15 May 2019, is as follows:
(a)the Public Trustee of 553 Hay Street, Perth, Western Australia is appointed administrator of the estate of MK with plenary functions conferred by the GA Act;
(b)the enduring power of attorney dated 26 February 2016 by which MK appointed LK and KK to be her joint attorneys is revoked;
(c)JJ and PLD are appointed limited guardians of MK with the following functions:
(i)subject to Division 3 of Part 5 of the GA Act, to make treatment decisions for MK; and
(ii)to determine the services to which MK should have access;
(d)the joint guardians are to authorise the release of medical information about MK to LK if LK so requests; and
(e)the administration and guardianship orders are to be reviewed by 13 June 2023.
Guardianship and Administration Act
It is a requirement of the GA Act in a proceeding of this kind that the Tribunal observes a number of principles.
In this part of these reasons, when we refer to section numbers we are referring to section numbers of the GA Act.
The primary concern of the Tribunal is set out in s 4(2), and that is the best interests of MK.
MK does not need to prove that she has capacity. MK is presumed to be capable of looking after her own health and safety, making reasonable judgments in respect of matters relating to her person, managing her own affairs and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal; s 4(3).
In considering any matter relating to a represented person or a person in respect of whom an application is made the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions; s 4(7).
An order cannot be made if the needs of the person concerned could in our opinion be met by a less restrictive alternative; s 4(4).
Also, the Tribunal cannot appoint a plenary guardian if the needs of the person concerned could in our opinion be met instead by the appointment of a limited guardian; s 4(5). Even if the Tribunal appoints a limited guardian or an administrator, it must be in terms that, in our opinion, impose the least restrictions possible on the person's freedom of decision and action; s 4(6).
Matters to be considered by the Tribunal
There are in effect three questions to be considered, first, whether MK is a person for whom a guardian or administrator can be appointed, if so, whether there is a need for a guardian or administrator to be appointed and then, if so, whom should be appointed to those roles.
Is MK someone for whom a guardian or an administrator can be appointed?
Under s 43(1)(b) of the GA Act, the Tribunal cannot consider appointing a guardian for MK unless it is first satisfied on the evidence that she is incapable of looking after her own health and safety or is unable to make reasonable judgments in respect of matters relating to her person or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
Similarly, under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of MK's estate unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
Mental disability is defined in s 3 to include dementia.
Is MK someone in need of a guardian or an administrator?
If the Tribunal finds that MK is a person for whom guardianship and administration orders can be made, the Tribunal must then determine whether she is in need of such orders. Even if MK is someone for whom a guardian or administrator can be appointed, if the needs of MK can be met in a manner less restrictive of her freedom of decision and action, then orders should not be made; s 43(1)(c), s 64(1)(b) and s 4(4) of the GA Act.
Who should be appointed guardian and/or administrator for MK?
If the Tribunal finds that MK is a person for whom guardianship and administration orders can be made and that she is in need of one or another or both of those orders, it must then decide who the guardian and the administrator should be and what authorities should be given to the guardian and to the administrator.
One further issue a review date
Further, the Tribunal must decide what review date should be set, given the requirement that orders must be reviewed at least once every five years; s 84 of the GA Act.
Materials before the Tribunal
In making our decision in this matter, we have had regard to a report from the Public Trustee, undated but prepared in early August for the purpose of this hearing. We will refer again to that report shortly.
The Tribunal also had before it a medical report about MK from Dr T which was provided to the Tribunal for the purpose of the hearing before the single member and is the only medical report that has been made available to us. The parties do not dispute the contents of this report.
Dr T is a consultant at a regional hospital.
Dr T says that she has conducted cognitive capacity assessments for MK and reports an MMSE score of 16 out of 30. In her opinion, MK suffers from a mental disability, namely progressive dementia with anxiety/paranoid behaviour. She considers the disability to be progressive. She also considers that MK is incapable of dealing with simple or complex financial decisions, incapable of dealing with legal matters and incapable of making personal decisions, adding that MK has 'no real insight in her memory issues and displays significant paranoid delusion'. She considers that MK is incapable of making decisions about her own accommodation and the services which she needs.
Dr T also opines that MK is incapable of executing an enduring power of attorney or an enduring power of guardianship. She is unsure about whether MK has previously executed an enduring power of attorney but she says that MK has not, to her knowledge, executed an enduring power of guardianship.
Views and wishes of MK
As we have already mentioned, the GA Act requires the Tribunal, as far as possible, to seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions. No person should be deprived of his or her right and freedom to make decisions about their life without having had the opportunity to be heard. The right to be heard is a fundamental rule of natural justice. Of course, there is a separate issue arising which is how much weight should be put on those views and wishes. Those views and wishes may be contrary to the person's best interests. It may be that not a great deal of weight can be put on them.
The Tribunal has not been able to ascertain MK's present views and wishes. MK was not in attendance at the hearing. This is consistent with the advice from Dr T, who said in her report that MK's attendance at the hearing would be adverse to MK's health and wellbeing. She says that a hearing would be highly stressful for MK because 'she feels she has capacity even though she has not and will respond adversely when challenged'.
The Tribunal can however consider the previous actions of the represented person in an effort to ascertain that person's wishes. LK and KK address that point when they assert that MK has reposed great trust in them by, on 26 February 2016, signing an enduring power of attorney in favour of LK and KK. However, an enduring power of attorney made by MK on 2 June 2017 was also submitted to the Tribunal, under which MK appointed her brother G and his son T as her attorneys. In these circumstances, it is not possible to rely on the execution of the enduring power of attorney in favour of LK and KK as an expression of the wishes of MK. In any event, the existence of an enduring power of attorney cannot be relied upon as an expression of the wishes of MK in respect of an appointment by the Tribunal of a guardian for her. A guardian's functions are quite different from those of the holder of a power of attorney.
The Tribunal's decision upon this review
Guardianship
In regard to a guardianship order, the first question is, has the presumption that MK is capable of looking after her own health and safety and of making reasonable judgments in regard of matters relating to her person been rebutted?
In this case, the Tribunal accepts the evidence of Dr T.
The Tribunal concludes, and we do not understand there to be any dispute in relation to this issue, that despite the presumption that MK has the capacity to look after her own health and safety and to make reasonable judgments in respect of matters relating to her person, MK is not so capable.
Administration
The threshold test for the making of an administration order is not met unless, starting from the presumption that everyone has full capacity to manage their own affairs, the Tribunal is satisfied that MK, because of a mental disability, is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
The Tribunal again relies on the evidence of Dr T.
Despite the presumption that MK has the capacity to manage her own affairs and make reasonable judgments in respect of matters relating to her estate, the Tribunal finds on the basis of the evidence before it that MK is not capable of so doing.
Need (including if less restrictive means available)
Having found that MK is a person for whom guardianship and administration orders can be made, the Tribunal must then determine whether she is in need of such orders. The need in question here is the need to have someone with formal decision making authority under an administration/guardianship order to make decisions on behalf of MK to resolve issues about, or to manage and protect, her financial estate and to make personal decisions on behalf of MK.
The requirement to look for less restrictive means has the result that even if there is a need for decisions to be made, can the needs (plural) of MK be met by an informal or other arrangement which is less restrictive of her freedom of decision and action?
The needs of a person might not give rise to a need for a guardianship order, for example, if there is some other statutory provision which gives legal authority for the decision making in question or there is someone who can assist the represented person with making his or her own decisions without having to make a formal appointment. Alternatively, there may in fact be no live issue or foreseeable conflict in relation to the personal affairs of the represented person. It might be that, as in this case, the person about whom an application is made is living in a fully serviced care facility and there is no plan to move him or her from that facility so as to give rise to the need for the Tribunal to intervene by making a formal order.
Similarly, there may be no need for an administrator, perhaps if the person has no assets that require administration, or if the assets are managed under some other legal authority such as an enduring power of attorney or a formal trust or court order. Alternatively, a person may be unable to manage his or her affairs and there may be no one with formal authority to manage his or her affairs for him or her, but his or her assets may be in a joint account with his or her spouse who can access his or her funds and apply them for his or her benefit. If there is no concern about that arrangement, the Tribunal may be satisfied that his or her 'needs' can be met without the formal appointment of an administrator.
Accordingly, once the question of whether the requirements for making an order have been satisfied, that is, whether an order could be made on the facts of the particular case, the next consideration is, under s 4(4) and (5) of the GA Act, whether there is any alternative to making a formal order, that is, whether an order should be made. The Tribunal must determine whether, in the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person's freedom of decision and action.
In respect of decision-making authority in relation to MK's estate, it is clear from the Public Trustee's report that in general terms MK's financial affairs are not complicated. MK has savings of approximately $38,000, and an income from Centrelink of $926.20 per fortnight. Her fortnightly expenses, all incurred from her residency at her care facility, amount to $950.80. The Public Trustee says that the very small shortfall each fortnight can be covered by her savings.
There is a difficulty though because MK has a share of a house located outside Perth, jointly owned with JJ, MK's sister. JJ lives in that house. The property has been included in MK's assessment for aged care fees and MK is being charged a means tested fee of $147.61 per day. While the Public Trustee considers that MK cannot afford that fee, her property cannot be sold. The Public Trustee is working through this issue and has made a Claim for Financial Hardship for Residential Aged Care Fees on her behalf. The Public Trustee does not consider that the problem is insurmountable.
Turning to decisions about MK's person, the Tribunal understands that MK is comfortable where she is currently residing and that there is no need in the foreseeable future for a decision to be made for alternative accommodation. The accommodation is fully serviced and, again, there is no requirement for any decision-making in that regard. We agree with the single member, however, that there may be a need for someone to make medical treatment decisions for MK and to deal with any need for additional or future services which MK might require in the future.
Turning next to the question of whether or not there is a less restrictive means available for such decisions to be made, we have already mentioned that the Tribunal has been told that MK on 26 February 2016 signed an enduring power of attorney in favour of LK and KK. This was revoked by the single member because the Tribunal was unaware of the existence of that document at the time when the Public Trustee was first appointed. The member considered that the enduring power of attorney was inconsistent with the appointment of the Public Trustee and for that reason she revoked it.
As already referred to, and we should say that it was not formally tendered, and neither G nor T attended the hearing, the Tribunal understands that MK granted another power of attorney on 2 June 2017, this time in favour of her brother G and his son T.
In our view, the revocation of the enduring power of attorney in favour of LK and KK was the correct and preferable decision. We do not in any event understand that LK and KK are 'aggrieved', to use the words of s 17A, by the decision to appoint the Public Trustee or the decision to revoke the enduring power of attorney.
We are satisfied that there is no existing enduring power of guardianship and, as far as personal decisions for MK are concerned, we do not consider that there is any less restrictive means available to the Tribunal. We note that JJ is MK's 'nearest relative' for the purposes of s 110ZD of the GA Act and therefore could make treatment decisions for MK without a formal order but it is clear from the demeanour of the parties in attendance at the hearing that there is some disagreement within the family and the Tribunal does not consider that anything less than a formal appointment of a guardian would be in MK's interests. Importantly, it will provide certainty for health care and other service providers as to who has authority to make decisions for MK.
Conclusion on need
We conclude that in this case there is a need for someone to have formal decision making authority in relation to MK's estate and to make personal decisions for MK.
Person to be appointed
We then get to the point where the Tribunal must decide who is to be appointed.
Guardian
In the case of a guardian, s 44(1) of the GA Act provides that a guardian (including a joint guardian) has to be an individual of 18 years or over who has consented to act and who in the opinion of the Tribunal:
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
Subsection (2) of that section says that in assessing suitability, the Tribunal has to take into account as far as is possible:
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if the person has an administrator) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
Section 44 also provides that where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person. Further, the fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
Administrator
Turning to an administrator, s 68 of the GA Act provides that an administrator (including a joint administrator) also needs to be an individual of or over the age of 18 years, or a corporate trustee, who has consented to act and who, in the opinion of the Tribunal:
(a)will act in the best interests of the person in respect of whom the application is made; and
(b)is otherwise suitable to act as the administrator of the estate of that person.
For the purposes of establishing suitability, the Tribunal has to take into account as far as is possible:
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if that person has a guardian) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
Again, the fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
Decision as to who should be appointed
We are satisfied that the appropriate administrator of MK's estate is the Public Trustee. The issue concerning the complication caused by the house owned jointly by MK and JJ may well be resolved at some future time and the appointment of someone as administrator other than the Public Trustee can perhaps then be revisited.
We are also satisfied that JJ and PLD, on all of the information available to the Tribunal, are the appropriate persons to appoint as joint guardians. They have both expressed their willingness to take on the role of MK's guardians and the Tribunal considers that they will act in the best interests of MK, do not have any interests that will or may conflict with those of MK in respect of the limited functions to be given to them, will work in cooperation with the Public Trustee and are otherwise suitable to act. JJ is MK's sister and one of her closest living relatives, she lived with MK for some 38 years and cared for her as her health declined. The Tribunal was satisfied that she has only the interests of her sister at heart. We do not consider that her age and inability to drive (as was raised by LK) has any bearing on the decision.
We are also satisfied that JJ would be assisted in her role by the joint appointment of her daughter PLD.
We have considered whether LK and KK should be appointed as the guardian, however we have determined that there would be no benefit to MK by so doing and they should not be appointed.
Plenary or limited guardianship order
We see no need to appoint a plenary guardian. In our view, the functions of the guardian should be limited to the same as made in the decision under review, namely, medical treatment decisions and decisions as to services.
The GA Act requires, in relation to guardianship, that if possible, a limited order be made rather than a plenary order. In this case we are satisfied that a limited order can be made to allow sufficient decisionmaking authority in the RP's best interests. The functions which were given to the guardian in the order dated 15 May 2019 by the single member are appropriate.
Extent of administration order
We are satisfied that it is necessary that the administration order should confer plenary functions in the best interests of MK.
Period of order
The Tribunal is required to nominate a period of time by which a review of the administration order must be made. The maximum time period allowed by the GAA is five years. In this case we consider that it is appropriate to review the order by 13 June 2023 because we do not anticipate that it is likely that circumstances will change for MK in the foreseeable future and it will be unnecessary to trouble the parties, including MK, with unnecessary processes.
Orders
The Tribunal declares that the represented person, MK, is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her health and safety; and
(f)in need of a guardian,
and the Tribunal orders that:
1.The orders of the Tribunal dated 15 May 2019 are affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
17 SEPTEMBER 2019
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