MM and DB
[2006] WASAT 2
•6 JANUARY 2006
MM and DB [2006] WASAT 2
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 2 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1623/2005 | 15 NOVEMBER 2005 15 DECEMBER 2005 | |
| Coram: | MS D DEAN (MEMBER) | 6/01/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | MB and TB appointed joint plenary administrators | ||
| B | |||
| PDF Version |
| Parties: | MM DB |
Catchwords: | Application for administration Unpaid nursing home fees Nonresident in receipt of United Kingdom pension Medical treatment visa Doubts about capacity of donor of EPA EPA not executed in accordance with s 104(2) |
Legislation: | Guardianship and Administration Act 1990 (WA), s 54(2), s 64(1), s 104(1), s 104(2) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MM and DB [2006] WASAT 2 MEMBER : MS D DEAN (MEMBER) HEARD : 15 NOVEMBER 2005
- 15 DECEMBER 2005
- Represented Person
AND
DB
Applicant
Catchwords:
Application for administration - Unpaid nursing home fees - Nonresident in receipt of United Kingdom pension - Medical treatment visa - Doubts about capacity of donor of EPA - EPA not executed in accordance with s 104(2)
Legislation:
Guardianship and Administration Act 1990 (WA), s 54(2), s 64(1), s 104(1), s 104(2)
(Page 2)
Result:
MB and TB appointed joint plenary administrators
Category: B
Representation:
Counsel:
Represented Person : N/A
Applicant : Selfrepresented
Solicitors:
Represented Person : N/A
Applicant : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 In this case the applicant, the director of nursing of the nursing home where the represented person resides, sought the appointment of an administrator for the represented person, a woman in her eighties with a diagnosis of dementia who had moved from the United Kingdom to Australia some years previously.
2 The represented person was on a medical treatment visa, which entitled her to the reciprocal Medicare agreement with the United Kingdom, but did not entitle her to any pensioner discounts with medications or nursing home fees. She was in receipt of a small, fixed pension from the United Kingdom, which was not sufficient to cover the nursing home fees, and consequently there was a large debt of several thousand dollars owed to the nursing home at the time of the hearing.
3 This application was heard over two hearings. After the first hearing the daughter and son-in-law applied for, and were granted, a nursing home fee reduction for the represented person on the basis of financial hardship.
4 The Tribunal was satisfied that the represented person was a person for whom an order could be made and that there was a need for an order. The Tribunal therefore made a decision to appoint the daughter and son-in-law plenary administrators.
Background
5 On 15 September 2005, DB, the applicant, filed an application with the State Administrative Tribunal for the appointment of an administrator for MM, an English woman in her eighties with a diagnosis of dementia. MM lives in the nursing home where DB, the applicant is the director of nursing. The reason for the application was unpaid nursing home fees of several thousand dollars.
6 MM has one daughter and a son-in-law, both of whom are long-term residents of Australia. MM is an English citizen who arrived in Australia to visit her daughter and son-in-law some years previously and overstayed her visitor's visa. She is in receipt of a small English pension but is ineligible for an Australian pension or for medical and nursing home subsidies in Australia.
(Page 4)
Relevant Legislation
7 The principles to be observed by the Tribunal when making determinations in relation to applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (the Act).
8 These principles are:
"(2)(a) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b) Every person shall be presumed to be capable of ¾
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d) A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e) An order appointing a limited guardian or an administrator for a person shall be in terms that, in
(Page 5)
- the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
- (f) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative 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."
9 Section 64(1) of the Act states that before an administrator can be appointed the Tribunal must be satisfied the person:
"(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate,
… "
10 The execution of an EPA is subject to s 104 of the Act:
"104. Execution of enduring power of attorney
(1) An enduring power of attorney may be created by instrument —
(a) that is in the form or substantially in the form of Form 1 in Schedule 3; and
(b) in which the donor of the power declares that the power either —
(i) will continue in force notwithstanding his subsequent legal incapacity; or
(ii) will be in force only during any period when a declaration by the State Administrative Tribunal under section 106 that the donor does not have legal capacity is in force.
(Page 6)
- (2) An instrument is not effective to create an enduring power of attorney unless —
(a) there are 2 attesting witnesses to the instrument and both of them are persons authorised by law to take declarations; and
(b) the instrument has endorsed on it, or annexed to it, a statement of acceptance in the form, or substantially in the form, of Form 2 in Schedule 3 executed by —
(i) the person or persons appointed to be the donee of the power; and
(ii) where applicable, the person or persons appointed to be the substitute donee of the power."
11 In her written application, the applicant stated that MM, the proposed represented person, has "numerous medical problems" including "chronic airways disease, possible cerebral anoxia, therefore possible cognitive impairment". The stated reason for the application was that the "son-in-law states they are not going to be responsible for nursing home and other related costs". The proposed represented person "is only receiving a British pension which is not enough to cover fees". At the time of the application, the proposed represented person had no assets other than $6000 in savings listed on the asset declaration admission form to enter nursing home care and was not paying the nursing home fees which had been assessed at $27.86 a day.
12 In her written report, the applicant stated that MM "has cognitive deficits. Will follow simple instructions with prompting". Is "unable to manage own budget". "Family refuses to make further payment of nursing home fees. States he and his wife cannot afford to do so". The applicant recommended the appointment of an administrator with plenary powers.
13 The Tribunal received a written report from Dr Lim, MM's GP, who stated that MM had a diagnosis of progressive vascular dementia. He assessed her as incapable of making reasonable decisions in respect of her personal health care, living situation, and financial affairs and as
(Page 7)
- incapable of executing an enduring power of attorney. He further stated that MM, because of her level of cognitive impairment, would be unable to make any contribution to the hearing.
14 A copy of an Aged Care Assessment Team (ACAT) report completed on 16 June 2005 was received by the Tribunal. At the time of the ACAT assessment, MM was living at home with her daughter and son-in-law. She was reported to receive a "small UK pension which is fixed" and assessed as having long-term and short-term memory problems necessitating high level residential care.
15 The Tribunal received a copy of an enduring power of attorney executed by MM on 18 July 2005, nominating her daughter as attorney and her son-in-law as substitute attorney.
First Hearing
16 This matter was heard over two hearings in November and December 2005.
17 The applicant and the clerk receptionist from the nursing home attended the hearing by teleconference. The clerk receptionist was available to provide financial information to the Tribunal. MM's daughter and son-in-law attended the hearing in person.
18 At the hearing the Tribunal was provided with the history of MM's arrival and ongoing residence in Australia. After the death of her father in 1991, the daughter visited MM in the United Kingdom. MM was not coping with the death of her husband and therefore decided to visit her daughter and son-in-law in Australia.
19 MM and her daughter returned to Australia on 25 November 1991. MM had a twelve month visitor's visa. Sometime after the twelve month visa had expired, MM applied for, and was granted, an extension of her visitor's visa. Her visa was then renewed annually until 2002 when she stopped applying for extensions.
20 In 2005 MM broke her hip and was hospitalised. At this point the family were informed that MM was not eligible for Medicare rebates, as her visa had expired. Another visa extension was granted and a reciprocal Medicare card was issued until 22 August 2006.
21 Soon after MM's admission to nursing home care on 21 July 2005, the son-in-law informed the nursing home that he and his wife could not afford to pay the nursing home fees or pharmaceutical costs. At the time
(Page 8)
- of the hearing there was an outstanding pharmaceutical account of approximately $63.
22 According to the evidence provided by the applicant, the nursing home had not been informed on MM's admission that the family would not be able to pay the nursing home fees.
23 In September, a payment of $2158 had been paid to the nursing home leaving an amount of $5031 still outstanding. The approximately $600 per month English pension MM was receiving was not enough to pay the ongoing nursing home fees.
24 The daughter informed the Tribunal that MM, when admitted to the nursing home on 21 July 2005, had approximately $6000 savings. On 5 September 2005, the daughter paid the nursing home $2158 and around this time, paid $3700 for a prepaid funeral for MM out of MM's savings.
25 The daughter provided the Tribunal with MM's bankbook into which the English pension of approximately $600 per month is paid. This account had a balance of $721. The Tribunal was informed that there were monthly pension payments for August, September, October and November which had not been entered in the bankbook. This would increase the balance by more than two thousand dollars.
26 The daughter informed the Tribunal that when MM was living with her she regularly drew out $100 at a time for MM to pay for necessities such as cigarettes, hairdresser and other items, but had discontinued this practice once MM went into nursing home care. She now uses her own money to purchase things for MM.
27 The son-in-law provided the Tribunal with the history of MM's move from their home into nursing home care. Shortly before they were to go on holiday to the United Kingdom, MM, who was living in their home with support from the Silver Chain nursing association, broke her hip and was admitted to hospital.
28 The son-in-law and daughter proceeded with their holiday. On her return from holiday, the daughter took MM home but found it too difficult to care for her resulting in MM moving into nursing home care.
29 The son-in-law detailed his and his wife's efforts to get MM an Australian pension which he said, was complicated by the fact that MM was incorrectly assessed as having "several thousand dollars worth of assets".
(Page 9)
30 As a result of their unsuccessful attempts to get the Australian pension for MM, the son-in-law sent a letter to Centrelink, the nursing home and the pharmacy, disclaiming any financial responsibility for her.
31 The son-in-law informed the Tribunal that, because MM is no longer a resident of the United Kingdom, her English pension has been frozen and because she is only a visitor to Australia she is not eligible for concessions in respect of her nursing home fees or pharmaceuticals.
32 It was clear from the information provided by the daughter and son-in-law that they had tried many avenues to resolve MM's status by approaching State and Federal Members of Parliament, doctors, the Department of Immigration and Centrelink, but without success.
33 The nursing home clerk advised the Tribunal that the current nursing home fee being paid by MM consisted of $16.23 per day accommodation fee plus the basic fee of $28.36. The $28.36 is the Commonwealth fee and is determined by the government not the nursing home. The nursing home had advised the daughter and son-in-law that they should contact the Commonwealth Department of Health and Ageing to seek a reduction, based on hardship, of the Commonwealth fee. The family were unable to remember details of any contact or approach they had made to the Department of Health and Ageing.
34 During a lengthy discussion about the enduring power of attorney executed by MM on 18 July 2005, it transpired that MM did not know what she was signing at the time this document was executed.
35 The family advised that they had the enduring power of attorney drawn up on the advice of the Department of Immigration but did not understand that the donee must have the capacity to execute such a document. It also transpired that the witnesses to the document had not been present at the original signing of the document but had been presented with the document to sign in place of the original witnesses some time after the document was drawn up and signed by MM.
36 It became clear during the hearing that the family were confused about the application for administration and stated that they had agreed to the application by the nursing home as they believed this meant the nursing home would take on the role of paying MM's accounts. It was explained to the family by the Tribunal and the nursing home that the nursing home had applied for an administration order nominating the Public Trustee as administrator.
(Page 10)
37 It was agreed that an adjournment was appropriate at this point for the family to contact the Commonwealth Department of Health and Ageing and to request a reduction in the fees on the basis of hardship. The nursing home provided the family with contact details for this process.
38 The Tribunal referred the matter to the Public Advocate to investigate and to report back to the next hearing.
Second hearing
39 The applicant and the clerk receptionist from the nursing home attended by teleconference, the daughter and son-in-law attended in person along with a representative of the Public Advocate.
40 At the commencement of the hearing, the son-in-law handed a letter to the Tribunal which he had received that morning from the Commonwealth Department of Health and Ageing approving a fee reduction of $23.68 per day for the period 23 November 2005 to 23 November 2007.
41 A written report was provided by the Public Advocate and tabled at the hearing for those in attendance to read. The Public Advocate stated in her report that MM was currently on a medical treatment visa which entitles her to the reciprocal Medicare agreement with the United Kingdom although it does not entitle her to any pensioner discounts with medications. No other visa is suitable for MM as all other visas are related to an assurance of financial support from families. Given the daughter and son in law's financial position they are not able to give such an assurance.
42 The medical treatment visa is current until August 2006 and will need to be renewed at that time. Renewal requires a letter from the nursing home stating that MM is still a resident and her medical condition is the same. The fee for renewal can be waived on application by the administrator.
43 Given the progress of the matter by the Public Advocate, the daughter and son-in-law informed the Tribunal that they were now willing to take on the role of administrator for MM. This was supported by the Public Advocate.
44 The applicant expressed some concern that the Department of Health and Ageing had not backdated the reduction of fees to July when MM was
(Page 11)
- admitted to the nursing home. The daughter and son-in-law agreed that if they were appointed joint administrators they would pursue the back payment with the Department.
Findings and Reasons
45 It was clear from the evidence of the applicant, the medical evidence and the information provided at the hearings that MM is not capable of making reasonable decisions in respect of any matters relating to her estate.
46 As set out in the legislation, the appointment of an administrator requires the Tribunal to find there is a need for an order and that the needs of the person cannot be met by any means less restrictive of the person's freedom of decision and action.
47 On 18 July 2005, the proposed represented person executed an enduring power of attorney which in other circumstances, could be accepted as a less restrictive alternative to the making of an order.
48 In his report of 25 September 2005, Dr Lim assessed MM as incapable of executing an enduring power of attorney. The Tribunal notes that the EPA was executed a few weeks prior to Dr Lim's report and a few weeks after MM was assessed by the ACAT on 16 June 2005 as having short-term and long-term memory problems along with occasional confusion resulting in her requiring high-level supported residential aged care.
49 The timing of the ACAT assessment along with Dr Lim's report and the family's report that MM did not understand what she was signing when the enduring power of attorney was executed, must raise questions about the donor's capacity at the time she executed this document. In addition, it was executed and witnessed initially by non-qualified witnesses. Subsequent witnesses signed some time after the document had been executed.
50 Given all of this the Tribunal is not satisfied that the enduring power of attorney can be considered as a valid and less restrictive alternative because there are doubts about the capacity of the donor at the time of execution and it wasn't executed in accordance with s 104(2) of the Act.
51 The Tribunal finds that there is a need for the appointment of an administrator who will continue to pursue with the Commonwealth Department of Health and Ageing the backdating of the agreed reduction
(Page 12)
- in nursing home fees and who will manage the day-to-day aspects of MM's estate including the payment of ongoing nursing home fees and pharmaceuticals.
52 The Tribunal finds that the appointment of MM's daughter and son-in-law as joint plenary administrators is in her best interests, as they are her only relatives in Australia and most interested in her welfare and well-being.
Decision
53 The Tribunal considered all the evidence available prior to, and at the hearings, and was satisfied that the represented person is a person for whom orders can be made. Further the Tribunal was satisfied that it is in the represented person's best interests, that an administration order be made.
54 The Tribunal made the following order:
1. MB and TB be appointed joint plenary administrators of the estate of MM with all the powers and duties conferred by the Act.
2. The enduring power of attorney dated 18 July 2005, by which the represented person appointed MB to be her attorney be revoked.
3. This order is to be reviewed by 15 December 2010.
- I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER
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