MRH
[2015] WASAT 17
•8 DECEMBER 2014
MRH [2015] WASAT 17
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 17 | |
| 23/02/2015 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:3321/2014 | 14 NOVEMBER AND 8 DECEMBER 2014 | |
| Coram: | MS F CHILD (MEMBER) | 8/12/14 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | MRH |
Catchwords: | Guardianship and administration Applications for appointment of a guardian and administrator Applications for intervention in an enduring power of attorney and enduring power of guardianship Donor diagnosed with Alzheimer's disease Cognitive impairment Presumption of capacity to make treatment decisions not displaced No need for appointment of an administrator as enduring power of attorney operating Applicants had proper interest to bring applications to intervene in enduring power of attorney but no evidence that an enquiry regarding operation of the enduring power of attorney required Wishes of donor that her financial information not be shared |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 107, s 109, s 110F, s 110N State Administrative Tribunal Act 2004 (WA), s 39 |
Case References: | EW [2010] WASAT 91 KS [2008] WASAT 29 S v State Administrative Tribunal (WA) (No 2) [2012] WASC 306 |
Summary | The Tribunal dismissed applications made by two daughters seeking orders for the appointment of a guardian and an administrator for their mother who had a diagnosis of Alzheimer's disease and for intervention in an enduring power of attorney (EPA) and an enduring power of guardianship (EPG) she had executed appointing another daughter as both an attorney and as joint enduring guardians with another person. ,The medical evidence confirmed the diagnosis but the Tribunal was not persuaded that the presumption that the donor had lost capacity to make personal decisions for herself had been displaced. Further, the Tribunal determined that there was no need for the orders sought, as the donor had executed an EPA, by which her financial affairs were managed, and an EPG and an Advanced Health Directive for future personal decision-making. ,In respect of the applications for intervention in the EPA and the EPG, although the Tribunal found that the applicants, as daughters who had maintained contact with the donor, had a proper interest in the matter, in the exercise of discretion, the Tribunal declined to intervene in the EPA and the EPG. The Tribunal accepted that both instruments reflected the wishes of the donor. The Tribunal found that the applicants had not provided any evidence to support the need for an enquiry into the operation of the EPA. The Public Advocate had conducted an investigation of the application and reported that no other family member challenged the conduct of the attorney. In respect of the EPG, the Tribunal found that the capacity of the donor to make personal decisions had not been rebutted. ,The Tribunal declined to vary the EPA to require the attorney to provide financial information to the applicants as this was against the express wishes of the donor. ,The applications were dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MRH [2015] WASAT 17 MEMBER : MS F CHILD (MEMBER) HEARD : 14 NOVEMBER AND
- 8 DECEMBER 2014
- GAA 3322 of 2014
GAA 3323 of 2014
GAA 3324 of 2014
- Donor
Catchwords:
Guardianship and administration Applications for appointment of a guardian and administrator Applications for intervention in an enduring power of attorney and enduring power of guardianship Donor diagnosed with Alzheimer's disease Cognitive impairment Presumption of capacity to make treatment decisions not displaced No need for appointment of an administrator as enduring power of attorney operating Applicants had proper interest to bring applications to intervene in enduring power of attorney but no evidence that an enquiry regarding operation of the enduring power of attorney required Wishes of donor that her financial information not be shared
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 107, s 109, s 110F, s 110N
State Administrative Tribunal Act 2004 (WA), s 39
Result:
Applications dismissed
Summary of Tribunal's decision:
The Tribunal dismissed applications made by two daughters seeking orders for the appointment of a guardian and an administrator for their mother who had a diagnosis of Alzheimer's disease and for intervention in an enduring power of attorney (EPA) and an enduring power of guardianship (EPG) she had executed appointing another daughter as both an attorney and as joint enduring guardians with another person.
The medical evidence confirmed the diagnosis but the Tribunal was not persuaded that the presumption that the donor had lost capacity to make personal decisions for herself had been displaced. Further, the Tribunal determined that there was no need for the orders sought, as the donor had executed an EPA, by which her financial affairs were managed, and an EPG and an Advanced Health Directive for future personal decision-making.
In respect of the applications for intervention in the EPA and the EPG, although the Tribunal found that the applicants, as daughters who had maintained contact with the donor, had a proper interest in the matter, in the exercise of discretion, the Tribunal declined to intervene in the EPA and the EPG. The Tribunal accepted that both instruments reflected the wishes of the donor. The Tribunal found that the applicants had not provided any evidence to support the need for an enquiry into the operation of the EPA. The Public Advocate had conducted an investigation of the application and reported that no other family member challenged the conduct of the attorney. In respect of the EPG, the Tribunal found that the capacity of the donor to make personal decisions had not been rebutted.
The Tribunal declined to vary the EPA to require the attorney to provide financial information to the applicants as this was against the express wishes of the donor.
The applications were dismissed.
Category: B
Representation:
Counsel:
Donor : Mr M Joubert
Solicitors:
Donor : Emeris Lawyers Pty Ltd
Counsel:
For the Attorney : Mr P Chapman
Case(s) referred to in decision(s):
EW [2010] WASAT 91
KS [2008] WASAT 29
S v State Administrative Tribunal (WA) (No 2) [2012] WASC 306
Introduction
1 Applications were filed on 11 August 2014 by MC and EMH, daughters of Mrs MRH (the donor), for the appointment of an administrator of the estate of the donor and for the appointment of a guardian for her, and for orders pursuant to s 109(1)(a) of the Guardianship andAdministration Act 1990 (WA) (GA Act)for intervention in an enduring power of attorney (EPA), dated 26 November 2009, by which the donor had appointed her daughter, GF as her attorney (attorney).
2 An application was also made for orders under s 110N of the GA Act for intervention in an enduring power of guardianship (EPG), dated 27 June 2014, by which the donor had appointed GF and AK as joint enduring guardians and, in substitution, RK.
3 Directions were made by the Tribunal on 18 August 2014 for the management of the matters to the hearing. The applications were listed for hearing in the standard time frame in October 2014. That date was vacated as the applicants were not available on the listed date.
4 Because of the nature of the applications and the serious allegations made by the applicants regarding the conduct of the attorney, the applications were referred for investigation to the Public Advocate, an independent statutory officer performing functions under the GA Act, including undertaking independent investigations of matters referred by the Tribunal. Included in the referral for investigation and report was the question as to whether the EPA and the EPG executed by MHR could provide a less restrictive alternative to the appointment of a guardian and an administrator for her.
5 Orders were also made for the attorney to file documents regarding the estate of the donor, and the enduring guardians were required to file a submission regarding decisions, if any, made by them. There were also orders for the attendance of doctors for the hearing to take oral evidence from them.
6 The applications were first heard on 14 November 2014. At that hearing the Tribunal heard from the applicants, from three doctors who had provided written reports regarding the donor, and from the Public Advocate's representative.
7 The applications were adjourned as the applicants had not taken the opportunity to inspect the material filed on the applications despite this being provided in the directions made on 18 August 2014.
8 As the Public Advocate's report provided a summary of the material filed, that report was copied to the applicants and written submissions were invited from the parties. The applicants, GF and MHR, (through their representatives), made further written submissions.
9 As the applicants submitted they had been treated unfairly in the first hearing, a further opportunity was given for them to ask questions at the second hearing on 8 December 2014. EMH asked the legal representative of the donor how instructions had been taken from the donor in preparation of the matter before the Tribunal. MC said she wished the matter to proceed and to be finalised.
10 The orders were made on the date of hearing and reasons for those decision delivered orally on that day. The following are the reasons of the Tribunal for the decisions made. Names and identifying information have been removed consistent with the requirements of the GA Act. The transcript has been edited for clarity.
Evidence and material before the Tribunal
11 In determining applications made under the GA Act, the Tribunal has a process for gathering information. Written submissions were filed by various parties, including correspondence between the applicants and the attorney. Reports were sought from various parties, including the Public Advocate and treating doctors. The program manager of [name deleted] Respite Service provided reports in the standard form and by letter regarding the contact of that service with the donor.
12 In addition to their reports, oral evidence was received from the doctors. The Tribunal will refer to this evidence later in these reasons. The Tribunal heard from the applicants at the hearing and from their applications filed and their submissions regarding the issues that brought them to make the applications.
13 In the hearing, MC spoke primarily to the applications but EMH adopted MC's submissions. The applicants refer to a lack of open communication and accountability on the part of the attorney when the attorney was approached for information about the affairs of the donor. Allegations were made by the applicants of 'possible' fraudulent acquisition of an EPG executed immediately after they had made a request for open communication from the attorney. The applicants say they approached their sister (the attorney) for information about their mother's affairs but they were told that it was none of their business. The first formal written request they made to the attorney was provided to the Tribunal together with the attorney's written response to that request. The applicants allege a history of 'inconsistency, inappropriate and generally unbalanced lifestyle decisions and use of funds' by the attorney. In their application the applicants proposed that the Tribunal override the EPA and the EPG executed by the donor and appoint 'more appropriate family' members in a joint role. At the hearing the applicants confirmed that their primary issue of concern was a lack of communication. They said they had written to the attorney a number of times. They were not satisfied with the response provided by the attorney and so made the applications to the Tribunal.
14 In the hearing, the applicants said that they felt excluded from the life of the donor because they assert that the attorney does not pass on information. In the hearing they proposed that an independent decision maker be appointed.
15 MC said the execution of the EPA by the donor, of which MC has been aware since 2009, caused a schism in the family. She said that, at the time, the donor told her that she was seeing a solicitor to execute a will. MC said that she asked the donor about the EPA as she had 'already caught wind from a local lady' about the execution of an EPA but that her mother denied any knowledge of the EPA.
16 MC said that the donor did not fully understand what she was doing on the day of the execution of the EPA because she was grieving the loss of her brother. When the applicant asked about the EPA later, the donor continued to deny the existence of the EPA. MC said that the existence of the EPA was confirmed to her about three months later.
17 When questioned about this, MC said that the donor was entitled to give an EPA but that, in her view, the donor had not done so. It is understood that she means that the applicants believe that the EPA is not a true expression of the wish of the donor because either the donor did not understand what was being done at that time, or she was grieving the loss of her brother with whom she had been very close, or both.
18 The concerns of the applicants, set out in the application and confirmed in the hearing, is the lack of information forthcoming from the attorney about their mother's affairs. The applicants also contend that funds of the donor are restricted by the attorney. The example given is that the donor was unable to purchase Christmas presents for her grandchildren (being the applicant's children) two years ago, and had been very distressed by this.
19 It is also alleged that funds of the donor have been used to pay for holidays taken by the attorney and her family. MC said she had 'No hard evidence of this' and could only 'go on her feelings and her beliefs', with a 'little bit of patchy information', because the applicants were 'kept in the dark' by the attorney. MC said that she believed the funds of the donor were being used, because the donor had started to take holidays soon after the EPA had been executed and she had not done this before.
20 The applicants also expressed concern about the cancellation, for a period, of a service for medication prompts for the donor, and what they believed to be the donor's restriction to her own home, apparently by the attorney. They also assert that the donor's dog had been put down unnecessarily and without consultation with her. They say that family relationships are at a point where they cannot function in the best interests of the donor and that an independent party now needs to be appointed to manage the affairs of the donor to ensure her health and wellbeing.
Legislation
21 When the Tribunal is hearing applications made under the GA Act, it must observe the principles set out in s 4 of the GA Act. Those principles provide that there is a presumption that persons are capable of managing their own affairs and of making their own decisions unless that is set aside by cogent evidence. The principles also say that the Tribunal is not to intervene in the life of a person unless there is a need for orders and the person's needs cannot be met by less restrictive means. Any orders that are made should be made in the least restrictive terms possible and the wishes of the person should be ascertained by the Tribunal, either through an expression of her wish at the time, or as previously expressed. The primary obligation of the Tribunal is to act in the best interests of the person for whom applications have been made.
22 To appoint a guardian for a person, the Tribunal must be satisfied the person is not able to look after her own health and safety, is not able to make reasonable judgments about her person, or is in need of oversight and care in the interests of her own health and safety and needs a guardian: s 43.
23 To appoint an administrator, the Tribunal must be satisfied that the person is unable, by reason of a mental disability, of making reasonable judgments about any or all of her estate, and she is in need of an administrator of her estate.
24 In respect of the applications, to intervene in the EPA for the filing of records by the attorney, the Tribunal has previously determined that the jurisdiction of the Tribunal to intervene in an EPA does not require the loss of capacity of the donor: KS [2008] WASAT 29.
25 Pursuant to s 110F of the GA Act, an EPG does not come into effect until a person is unable to make reasonable decisions about her person. The Tribunal can declare the validity of an EPG, or can vary or revoke an EPG, if it is satisfied that the applicant has a proper interest and it is appropriate to do. Any intervention must be consistent with the principles in the legislation referred to above.
26 Equally, to intervene in an EPA, the Tribunal must be satisfied the applicants have a proper interest and it is appropriate to intervene in the way proposed.
27 In respect of the present applications filed, the applicants are two of the daughters of the donor. They express their concern for her health and wellbeing, and for the management of her financial affairs, and they make allegations about what they say is the mismanagement of her financial affairs. As daughters of the donor and the appointor (that is, the creator of the EPG, called the donor for these reasons) have maintained contact with her, they say they have, until very recently, had regular contact with her. In these circumstances the Tribunal finds they have a proper interest in bringing the application. The Tribunal will return to these applications later in these reasons.
28 In respect of the applications for the appointment of a guardian and an administrator for the donor, the threshold question is whether the donor is a person for whom guardian and administration orders may be made. This turns on the question of whether she is able to make decisions for herself. As has been held in earlier decisions, to justify intervention in the life of someone and to make orders to remove the person's personal authority, this threshold must be crossed. It is not sufficient that the person is regarded as vulnerable. The Supreme Court confirmed the centrality of this question of capacity before the jurisdiction to make orders by the Tribunal is enlivened: S v State Administrative Tribunal (WA) (No 2)[2012] WASC 306.
29 Because this question is central in determining the guardianship and administration applications, the Tribunal asked for oral evidence from Dr T, Dr A and Dr J. In the course of the hearing, an opportunity was given to the applicants, and to the representatives of the donor and the attorney, to question the doctors on their evidence.
Capacity – medical evidence
30 In the first hearing, all of the doctors agreed on the diagnosis of the donor. That diagnosis, confirmed by Dr T (a physician), of Alzheimer's disease, had been made by Dr M (another geriatrician) in 2008. Dr T also said that the diagnosis had been confirmed by doctors at Royal Perth Hospital.
31 Dr A, who had been the treating doctor of the donor for many years (having known her over 10 years), concurred with that diagnosis. Dr A said she was not able to give an opinion about the donor's current functioning, as she had not seen the donor for some time. I will return to Dr A's evidence later in these reasons.
32 Although Dr T had only assessed the donor on one occasion, the Tribunal accepts it was a lengthy assessment, the doctor saying it was 'a couple [of] hours'. Dr T is a physician. The Tribunal accepts he has specialist training in geriatrics.
33 Dr T acknowledges the position advanced by some family members that the donor's condition does fluctuate. Where any of the medical evidence conflicts with that of Dr T, the Tribunal prefers the evidence of Dr T, given his expertise and his full assessment of the donor described in the first hearing. Dr T said that he believed that the donor could answer questions about her personal care, but not about her financial affairs. He based this conclusion on the donor's 'very poor' mini mental state examination score conducted on the day of his assessment. He considered the donor was unsafe to drive, and that she should immediately cease driving. He said he felt that there was a risk to her and probably to other road users.
34 Dr J, who is the current treating general practitioner of the donor, amended her written opinion that the donor was capable in all spheres, following an appointment that the donor had with Dr J in the days before the hearing in November 2014. In the hearing Dr J said that at that appointment, the donor's memory impairment was very apparent. Dr J's opinion expressed at the hearing is that the donor needs support and is dependent upon others.
35 The report of the [name deleted] Respite Service coordinator, Ms P, is consistent with the evidence of Dr J that the donor does need support with activities of daily living.
36 In the hearing, Dr J maintained her opinion that when she saw the donor and discussed the Advanced Health Directive (AHD) in July 2014, the donor was able to communicate with her and indicate her wishes. Dr J is one of the witnesses to the AHD.
Findings
37 The Tribunal concludes from the evidence of Dr T that the donor is a person for whom an administration order could be made. That is, she is, by reason of a mental disability, being her dementia, unable to make reasonable judgments now, in relation to her estate or her financial affairs.
38 Considering all of the medical evidence and the material that has been put before the Tribunal, although it might be said, based on the evidence of the Respite Service provider and Dr J, that the donor does need oversight and care in the interests of her own health and safety, the evidence of Dr T does not support the view that she is incapable of making reasonable judgments about her person. The presumption that the donor is able to make decisions about her care and treatment has not been displaced. The Tribunal is not satisfied that she is a person for whom a guardian may be appointed. If I am wrong about that, I am satisfied that there is no need for a guardian to be appointed. The donor has executed both an EPG and an AHD. Although the applicants question the EPG executed by the donor in the strongest terms, saying that it was 'fraudulently obtained', the evidence of Dr A and Dr J supports the capacity of the donor to grant such a power. Dr T did agree that a person's capacity may vary across different spheres of decisionmaking. Under the law, the capacity to undertake a certain transaction or to deal with a certain thing relates to the thing that one is doing. A person is capable, in terms of the law as it exists in Australia, if the person is capable of understanding the general nature of what the person is doing by his or her participation. In terms of the capacity to execute a legal instrument, such as an EPG, capacity must be assessed relative to the particular transaction which is being effected by means of the instrument. In these circumstances capacity may be described as the capacity to understand the nature of the transaction when it is explained.
39 As it has been stated, to rebut the presumption that the donor is capable, there must be cogent evidence that actually persuades the Tribunal of her incapacity. Although it is accepted that the donor has dementia, and that it is described as a progressive condition, considering the evidence as a whole, the Tribunal is not so persuaded. The evidence includes the evidence of Dr M, who found that the donor had 'a borderline dementia with a score of 25 out of 30' in June 2009, the more recent assessment and opinions of Dr T and Dr J regarding the donor's capacity to make personal decisions and the letter of Dr A in 2010 in which the donor is reported to have a developing memory impairment, especially short term memory. Her letter however states:
She shows no loss of higher executive functioning. I believe she's quite capable of managing her own financial affairs and making decisions in that regard.
40 The Tribunal is not persuaded on this evidence and all of the material provided by the applicants of their contentions that the donor did not fully understand the EPA she executed in 2009, or that the EPG was fraudulently obtained. No evidence has been provided to support these allegations. The allegation of fraud is a very serious allegation, and it appears to have caused the attorney to seek legal representation, although this was questioned by the applicants. The donor was also represented. Pursuant to s 39 of the State Administrative Tribunal Act 2004 (WA), parties are entitled to legal representation before the Tribunal.
41 Turning back to the evidence given by Dr J regarding her conversations with the donor in respect of the execution of the AHD in July 2014, Dr J discussed treatment decisionmaking with the donor, and the doctor was satisfied that the donor was able to make decisions for herself and that she was able to communicate them. These consultations apparently occurred around the time of the execution of the EPG.
42 The EPG is, effectively, an authority for the donor's daughters, GF and AK, to make personal decisions for the donor when she is unable to do so.
43 Given the test for executing such a document capably, that is, she understood the nature of it when it was explained, I am not satisfied that the EPG was, to quote the applicants 'fraudulently obtained'. I find based on Dr J's evidence, that the donor was more likely than not to have understood the consequences of executing the EPG when she did so.
44 I do find the instruments, the EPA and the EPG, are the wishes of the donor for the management of her affairs as expressed by her when she executed them. In respect of the EPA in 2009, although the donor had a dementia diagnosis, the medical evidence does not rebut the presumption that she was capable of making such decisions at that time. In respect of the EPG executed in mid 2014, again, the evidence suggests that the donor understood the nature of the questions that were being asked of her by Dr J. There is insufficient evidence to rebut the presumption of capacity.
Need
45 Even if the donor is a person for whom orders can now be made, and on the evidence she is a person for whom an administration order can be made, the position is less clear in relation to guardianship, because a guardian may be appointed for a person who needs oversight and care in the interests of their own health and safety. However, the Tribunal is not satisfied that the donor needs a guardian, as she has put in place both an EPG and an AHD for future decisionmaking, when she loses capacity. Consistent with the principles in the legislation that her views should be ascertained and least restrictive options chosen, those documents should be honoured.
46 Although I find the donor is a person for whom an administration order may be made, there is a less restrictive alternative to the making of that order in the EPA granted in 2009 to the attorney.
47 The concerns and suspicions behind the allegations made by the applicants about the purported restriction of funds of the donor that, effectively, meant she was unable to purchase Christmas presents, occurred two years ago, and a suspicion that funds of the donor have been used by the attorney and her family to fund their holidays have not been supported by any other material other than the belief expressed by the applicants.
48 Pursuant to s 109 of the GA Act, the Tribunal can intervene to order the filing of records by an attorney, because attorneys are required, pursuant to s 107 of the GA Act, to maintain records of all transactions made under the power.
49 The Tribunal has held in previous decisions that since attorneys must maintain records of transactions made under an EPA, it is not a significant step to take, if a genuine issue of accountability has been raised or a transaction indicates the need for further enquiry, to require the attorney to file the records they are required to maintain: EW [2010] WASAT 91. In this case, there is insufficient evidence advanced by the applicants to support the orders sought. The applicant, MC herself said she had no hard evidence, and the allegation that the funds of the donor were being misused was simply her belief. In the material filed by the attorney nothing indicated the need for an enquiry. The belief of the applicant of misuse by the attorney is not supported, following enquiry by the Public Advocate and based on the submissions received from other family members (other than the joint applicant) who do not support the making of the orders sought. In the submission filed by the applicants since the previous hearing, MC sets out in some detail a difficult relationship she has had with the attorney, going back to childhood, and it is against that background, and what the applicants believe has been a lack of information and transparency on the part of attorney, that has fuelled these allegations and suspicions.
50 The Public Advocate's representative submits that an order made pursuant to s 109 of the GA Act, to vary the EPA on the application of the applicants to include a provision that financial information is shared with the applicants on an annual basis is in the best interests of the donor.
51 It is accepted that if there was better communication within the family, the tension might be reduced and this is likely to benefit the donor. Because of the long standing tensions in the relationships as set out in the applicant's submission, the sharing of financial information may not necessarily resolve the conflicts. It is certainly in the best interests of the donor that she have the support of all of her children, especially as her condition is, unfortunately, a progressive one, and her need for support and care will in all likelihood increase in the future.
52 Although the submission by the Public Advocate is noted, the wishes of the donor, made clear through her representative, is that she does not want her financial information shared. I accept that the donor gave instructions to her solicitor, and her solicitor has put her views to the Tribunal. I accept that it is the current preference of the donor that her personal information is not shared with the applicants.
53 As noted, the principles in the GA Act require the Tribunal to ascertain the wishes of the donor and to make least restrictive orders. So, even if it was possible for the Tribunal to make an order varying the EPA pursuant to s 109 of the GA Act, I decline to do so. I am not satisfied that there is sufficient evidence of any conduct on the part of the attorney before the Tribunal to warrant the intrusion on the donor's privacy against her express wishes.
54 Despite the unfortunate increase in tension, family conflict following the processes before the Tribunal, and the expressed dissatisfaction with the process by the applicants, the Tribunal orders that all the applications are dismissed for the reasons given.
55 For the record, it is noted that the enduring guardians are obliged to act in the best interests of the donor. That obligation is set out in the legislation, and part of that is to maintain the supportive relationships of the appointer of the EPG. Therefore, the enduring guardians are obliged to act to maintain the donor's relationships with all of her children. It will be increasingly important for the donor that she has the benefit of the relationships with all of her children. It is obviously an obligation on all of the children to act appropriately, and to reduce the stress on the donor, given her diagnosis and the impact that it has on her.
Orders
56 1. The applications are dismissed.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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