MT
[2017] WASAT 132
•10 OCTOBER 2017
MT [2017] WASAT 132
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 132 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:4530/2016 | 7 & 22 MARCH, 29 MAY, 26 JUNE AND 18 SEPTEMBER 2017 | |
| Coram: | MS P LE MIERE (MEMBER) | 10/10/17 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Administrator and guardian appointed | ||
| B | |||
| PDF Version |
| Parties: | MT |
Catchwords: | Guardianship and administration Capacity to make complex financial decisions Capacity to make reasonable decisions relating to her person Conflict in assessment about capacity Capacity to appoint administrator Less restrictive means to meet represented person's needs |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 40(1), s 43(1)(b), s 44, s 64, s 64(1)(a), s 68, s 68(2)(b), s 97(1)(b)(iii), Div 3, Pt 5 |
Case References: | (Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 |
Summary | Applications for guardianship and administration orders were made for a 90year-old woman following a report from a psychiatrist that cast doubt on the represented person's capacity.,The application for administration was made by her legal representative who informed the Tribunal that he considered the represented person had capacity and sought to have the Tribunal make a declaration to that effect and further did not wish an administration order to be made despite his lodging an application for an administration order.,The application for guardianship was made by her son, IT, who lived in the United States of America, who believed his mother did not have capacity to make reasonable decisions in relation to matters affecting her person.,IT and JG, her daughter, did not believe their mother had capacity to make complex financial decisions and supported an administration order being made.,The represented person, by her legal representative, obtained a report from an aged care physician that stated she did not have a cognitive impairment and was capable of making her own decisions.,The Office of Public Advocate obtained a report from a psychiatrist specialising in aged care psychiatry, who determined the represented person did not have capacity to make decisions in relation to complex financial matters or in respect of her own self cares.,The psychiatrist also found that the represented person did not have capacity to nominate an administrator.,The Tribunal preferred the opinion of the psychiatrist over that of the aged care physician for a number of reasons.,At the final hearing, a finding by the Tribunal of incapacity in respect of the represented person's ability to manage her estate and make decisions in respect of her person was not opposed by the represented person. The represented person did not oppose the appointment of the Office of Public Advocate as her limited guardian.,The represented person opposed the appointment of an administrator on the basis there was a less restrictive means available to meet the represented person's needs, namely an enduring power of attorney signed during the course of the proceedings.,Alternatively, the represented person sought the appointment of a private trustee company of her choice rather than the Public Trustee.,The Tribunal found that for various reasons that the power of attorney should be revoked and the Public Trustee appointed her administrator. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MT [2017] WASAT 132 MEMBER : MS P LE MIERE (MEMBER) HEARD : 7 & 22 MARCH, 29 MAY, 26 JUNE AND 18 SEPTEMBER 2017 DELIVERED : 10 OCTOBER 2017 FILE NO/S : GAA 4530 of 2016 MATTER : MT
- Represented Person
Catchwords:
Guardianship and administration Capacity to make complex financial decisions Capacity to make reasonable decisions relating to her person Conflict in assessment about capacity Capacity to appoint administrator Less restrictive means to meet represented person's needs
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 40(1), s 43(1)(b), s 44, s 64, s 64(1)(a), s 68, s 68(2)(b), s 97(1)(b)(iii), Div 3, Pt 5
Result:
Administrator and guardian appointed
Summary of Tribunal's decision:
Applications for guardianship and administration orders were made for a 90year-old woman following a report from a psychiatrist that cast doubt on the represented person's capacity.
The application for administration was made by her legal representative who informed the Tribunal that he considered the represented person had capacity and sought to have the Tribunal make a declaration to that effect and further did not wish an administration order to be made despite his lodging an application for an administration order.
The application for guardianship was made by her son, IT, who lived in the United States of America, who believed his mother did not have capacity to make reasonable decisions in relation to matters affecting her person.
IT and JG, her daughter, did not believe their mother had capacity to make complex financial decisions and supported an administration order being made.
The represented person, by her legal representative, obtained a report from an aged care physician that stated she did not have a cognitive impairment and was capable of making her own decisions.
The Office of Public Advocate obtained a report from a psychiatrist specialising in aged care psychiatry, who determined the represented person did not have capacity to make decisions in relation to complex financial matters or in respect of her own self cares.
The psychiatrist also found that the represented person did not have capacity to nominate an administrator.
The Tribunal preferred the opinion of the psychiatrist over that of the aged care physician for a number of reasons.
At the final hearing, a finding by the Tribunal of incapacity in respect of the represented person's ability to manage her estate and make decisions in respect of her person was not opposed by the represented person. The represented person did not oppose the appointment of the Office of Public Advocate as her limited guardian.
The represented person opposed the appointment of an administrator on the basis there was a less restrictive means available to meet the represented person's needs, namely an enduring power of attorney signed during the course of the proceedings.
Alternatively, the represented person sought the appointment of a private trustee company of her choice rather than the Public Trustee.
The Tribunal found that for various reasons that the power of attorney should be revoked and the Public Trustee appointed her administrator.
Category: B
Representation:
Counsel:
Represented Person : Mr J Butler
Solicitors:
Represented Person : Butlers Barristers and Solicitors
Case(s) referred to in decision(s):
(Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Introduction
1 The Office of Public Advocate (OPA) brings an application under s 40(1) of the Guardianship and Administration Act 1990 (WA) (Act) for an administration order nominating the Public Trustee (PT) be appointed as administrator.
2 IT brings an application for guardianship for his mother MT under s 40(1) of the Act and proposes that an independent person be appointed guardian due to the lack of trust or suspicion his mother has developed towards him and the longstanding estrangement with her daughter JG.
The legislative framework
3 The Act provides for, amongst other things, the appointment of a guardian and an administrator for a person who, because of an impairment of their faculties, is in need of the protection of a decisionmaker and advocateRe The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43])..
4 Guardianship has to do with a person's personal life, and administration has to do with a person's financial affairs; that is, their estate.
5 In making a decision about whether a guardian and an administrator should be appointed for a person, there are essentially four steps that need to be considered, and these steps incorporate the principles of the Act which are to be found at s 4.
6 The first step is the decision or finding about the represented person's capacity; that is, her ability to do or not to do things or to make reasonable judgments about decisions that need to be made.
7 The starting point for anyone for whom an application has been made is a presumption that they are able to manage their own affairs, look after their own health and safety, and make reasonable judgments about personal or financial matters (s 4(2)(b) of the Act). . This is called the presumption of capacity.
8 There are two sections or provisions in the Act which go to the question of a person's capacity and whether they are a person for whom a guardian and an administrator could be appointed.
9 For guardianship, the section is s 43(1)(b), and for administration, the section is s 64(1)(a) of the Act.
10 To consider whether a guardian could be appointed for the represented person, I must first be satisfied that she is either incapable of looking after her own health and safety or is unable to make reasonable judgments about her person, or that she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
11 To consider whether an administrator could be appointed for the represented person, I must first be satisfied that, because of a mental disability, she is unable to make reasonable judgments about all, or any part, of her estate.
12 That is to be able to make a guardianship or administration order I must be satisfied that the presumption of capacity has been rebutted.
13 If I decide that the represented person is a person for whom a guardian and administrator could be appointed, I then need to ask whether she is in need of those appointments. This is the second step.
14 The Act makes a distinction between incapacity and need. The fact that a person has an impairment that affects their ability to look after themselves or make reasonable judgments about certain matters does not, of itself, mean that appointments should be made. The Act states that if the needs of the person, that is, the represented person's needs, can be met by other means less restrictive of her freedom of decision and action, then orders should not be made (s 4(4) of the Act).. When an order is made, a person's right to make their own decisions is affected.
15 If I decide that appointments are needed, I must then decide what role I give to the guardian and the administrator (step 3) and who should be appointed guardian and administrator (step 4). The Act states that I should not appoint a plenary guardian (that is, someone with the authority to make all the personal decisions for the represented person) if a limited guardian would meet her needs (a limited guardian's authority is limited to the functions given in the order) (s 4(2)(d) of the Act). When I decide who should be appointed, the Act gives guidance in s 44 (guardianship) and s 68 (administration).
16 The decisions that are made under the Act must be made in what the Tribunal considers to be in the person's best interests s 4(2)(a) of the Act. My primary concern is therefore the represented person and this guides every decision I make.
17 In considering what decision I should make, I need to ascertain the represented person's views and wishes; however, it is her best interests that must be my final judgment.
Facts
18 The following facts are set out in correspondence between the parties, with the Tribunal or from statements made (on oath) during the various hearings. Unless a matter was contested or challenged by another party either in correspondence or in the hearings I have assumed it is accepted by all as essentially correct.
19 The proposed represented person, MT is a 90yearold Australian woman who lived with her husband in the United States of America (USA) between January1971 and December 1991. Her son, IT, still lives in the USA and her daughter, JG, lives in Western Australia.
20 MT and her husband RT were estranged from JG for a number of years but RT reconciled with JG before his death in 2016. At the commencement of the proceedings MT was estranged from JG, however, their relationship had improved by September 2017.
21 In 2010, MT executed an enduring power of guardianship (EPG) appointing firstly RT as her guardian and then IT as her substitute guardian in the event of RT's death.
22 In 2013, MT and RT made wills leaving their estates to the survivor of each other and upon the death of them both, half their estate to IT, $100,000 to JG and the balance to charity. They also made a statutory declaration explaining their reason for not leaving a greater share of their respective estates to JG.
23 I am also told that MT signed an enduring power of attorney (EPA) appointing a lawyer and IT as her attorney.
24 It appears differences arose between RT and MT when RT became sick and was hospitalised in October 2015. There is no information that suggests prior to that time there were any differences over finances between MT and RT.
25 Following upon RT's hospitalisation he transitioned to a residential care facility on 24 November 2015 at which point his children report that MT did not visit regularly and would make harassing phone calls to RT.
26 When RT moved to the residential care facility it was necessary to pay a bond and MT refused to sign the required documents to release funds that their financial advisor recommended would be most suitable and have the least taxation impact. As a result of MT's conduct RT had to organise an alternative funding which had a detrimental effect on MT's and RT's finances.
27 Whilst in the residential care facility the financial advisor regularly visited RT and kept him informed as to his and MT's share portfolio.
28 In October 2015, MT's neighbours report that MT had been found wondering the streets at night in her nighty and had triggered her house alarm on return. It was the triggering of the alarm which the neighbours say alerted them.
29 In November 2015, MT was hospitalised for what was most probably a severe anxiety attack. On 11 November 2015, MT was admitted to the secure McCarthy ward at Hollywood Private Hospital under the care of Dr A Criddle.
30 In light of her past psychiatric history:
a) an initial breakdown in 1967;
b) repeated electroconvulsive therapy treatment in the USA in 1968/1969; and
c) a second mental crisis in 1971 which involved a physical attack on JG followed by hospitalisation in Australia, then on arrival in the USA immediate hospitalisation in a psychiatric facility.
31 MT was assessed by Dr M Samuel who diagnosed MT as having hypomania and that it was associated with her longstanding likely bipolar disorder. A Montreal Cognitive Assessment (MoCA) conducted at that time showed significant deficits and reflected problems with decisionmaking.
32 On 15 December 2015, MT withdrew $90,113.36 from a joint account with RT. A significant amount of money had been placed in the account to pay the refundable deposit for the care facility. $89,629 was returned to the account on 18 December 2015.
33 In March 2016, JG reported to Dr Samuel that RT had complained to her that MT was making aggressive, threatening and 'nasty' phone calls to RT, (such that RT telephoned JG at 4 am in the morning to report one such call) had delivered all his computer equipment and various items of clothing to him in his room in the care facility and had stood over him and 'shrieked at him aggressively'.
34 On 17 June 2016, $30,000 was withdrawn from the joint account and transferred to another Bankwest account. MT told RT that a doctor at Sir Charles Gairdner Hospital (SCGH) had said she would need the money to pay for a possible operation. It is not known what has happened to this money.
35 On 26 July 2016, MT signed a new EPA appointing her former accountant, RE, as her attorney and IT as her substitute attorney. The EPA was to only come into force upon the Tribunal making a declaration that MT did not have legal capacity.
36 IT did not accept the appointment as he said he did not believe MT had capacity to execute the appointment.
37 On 5 August 2016, RT died.
38 Following his death, MT was made aware that RT had severed the joint tenancy of their home. It is reported by the parties that RT did this without MT's knowledge. The Tribunal was told this was done by the creation of a trust and then a transfer from the trust to RT.
39 It is also reported that the ownership of a number of formally held joint assets, namely shares, were also changed from joint tenants to tenants in common.
40 RT had made a will revoking the 2013 will appointing both JG and IT as executors and dividing his estate equally between his children, that is, JG and IT, hence the significance of the severance of the joint tenancy in respect of the formally held joint assets.
41 MT alleges that JG 'unduly' influenced RT in changing his will.
42 MT in her own right and by survivorship on RT's death has significant assets in the form of shares, investment accounts; term deposits, cash accounts and a half share in the former matrimonial home in the amount of A$2.7 million.
43 Between 27 August 2016 and 16 September 2016, MT was an inpatient at Selby Older Adult Psychiatric Service. On her discharge her treating physician Dr Ryan, prepared a report that stated that the treating team had 'repeated concern' regarding MT's ability in relation to complex financial matters.
44 It was a consequence of receiving this report that her current legal advisors made this application to the Tribunal in an endeavour to have the issue of MT's capacity resolved.
The proceedings
45 On 28 December 2016, Ms Matrioni of Butlers, Barristers and Solicitors (Butlers) lodged an application in the usual form under s 40(1) of the Act seeking the appointment of an administrator.
46 In the section headed 'Your relationship to the person you are applying about (such as father, mother, son, daughter, social worker)', Ms Matrioni included the following information:
a. Butlers are acting for [MT] and the applicant was the solicitor with the conduct of [MT's] matter;
b. [MT] consulted Butlers when she became concerned about payments being made from her and her husband's [RT] joint account;
c. At the relevant time [RT] was living in an aged care facility and [MT] in the family home
d. Subsequent to [RT's] death it became apparent that [RT] had severed the joint tenancy of their home and other jointly held investments;
e. [IT] [MT's son] and [JG] [MT's daughter] the executors and beneficiaries of [RT's] will, have agreed not to seek the sale of the family home in which [MT] is living and [IT] who was granted a life tenancy in the family home has agreed not to exercise his right to occupy the family home;
f. A deed is to be prepared reflecting the above agreement;
g. An EPA appointed her former accountant [RE] as her attorney; [RE] signed the acceptance of the EPA but [IT] did not and Butlers are instructed by [MT] that she no longer wishes to appoint [IT] as her substitute attorney;
h. The EPA was valid upon her incapacity;
i. An EPG appointed [MT's] cleaner and friend to act as her Enduring Guardian. The friend refused to accept this appointment and no further EPG has been prepared for [MT]. [MT] has a previous EPG which is still valid;
j. Dr Tracy Ryan, psychiatrist, has assessed [MT's] capacity and stated that [MT's] capacity to understand complex matters was unclear;
k. Butlers sought from the Tribunal a declaration as to whether [MT] had capacity in order for it to continue with [MT's] legal work, including drafting her will, EPA and EPG.
47 At the hearing on 7 March 2017, Mr John Butler who appeared on behalf of MT and Ms Matrioni, confirmed that what he, on instructions from MT was in fact seeking was not an administration order but a declaration that his client MT had capacity.
48 The Tribunal informed Mr Butler that it did not have jurisdiction to make such a declaration and there followed a discussion regarding the appropriateness of his application. Following upon these discussions the matter was adjourned to give the parties, namely the current applicant, OPA, MT's daughter JG, MT's son IT and RE (her former accountant) the opportunity to consider their positions including giving consideration as to whether, in the event Mr Butler sought leave to withdraw his application, another party would make an application for administration.
49 The Tribunal is a protective jurisdiction and had evidence before it from Dr Ryan that MT may not have capacity to manage complex legal matters it was therefore appropriate that the Tribunal have an opportunity to consider the issue of MT's capacity and accordingly whether it was in the circumstances appropriate to grant leave to Butlers to withdraw the application.
50 At a directions hearing on 22 March 2017, the Tribunal was informed that MT had executed a new EPA appointing RE as her attorney operative immediately. However, the question of MT's capacity remained to be considered together with whether the EPA, if validly executed, was in the circumstances a least restrictive alternative to an administration order that would operate in MT's best interest.
51 Also, at the 22 March 2017 directions hearing, the Tribunal, following OPA's application, substituted OPA as the applicant in the proceedings and granted leave to Mr Butler to withdraw as the applicant. The matter was listed for hearing on 29 May 2017.
52 On 20 April 2017, IT filed an application seeking the appointment of the OPA as guardian for MT.
53 On 3 May 2017, the Tribunal made an interim order that OPA investigate the following matters and provide a written report to the Tribunal:
54 At hearing on 29 May 2017, Dr Tech Yew, an aged care physician at Midland St John of God Hospital, gave evidence by telephone in respect of his report dated 21 April 2017, prepared at the request of Butlers. I will return to the evidence of Dr Yew later. Also at the hearing, Mr Butler informed the Tribunal that his client declined to attend an appointment organised by OPA to be reviewed, at no cost to her, by Dr Olivia Lee, a psychiatrist specialising in aged care psychiatry.
55 MT did not attend the hearing and the matter was further adjourned to enable the Tribunal to hear from her.
56 At the hearing on 26 June 2017, the Tribunal put to MT the allegations set out in [26][34] above to ensure she had the opportunity to respond.
57 The Tribunal made various attempts to have MT respond to the allegation that she had refused to sign the required documents to release funds that their financial advisor recommended be used to pay the necessary bond to RT's residential care facility. MT appeared to be unable to address the question.
58 The allegation that she had been found wandering the streets at night by her neighbours was denied by MT, who informed the Tribunal that she had deliberately triggered the alarm when she left the house by the back door because she thought she had heard someone trying to enter the house by the front door.
59 When asked by the Tribunal if MT disputed the allegations regarding her past psychiatric history, MT was unable to give a clear response.
60 When the Tribunal put the allegation regarding the withdrawal of the $90,113.36 to MT she gave a very lengthy and convoluted explanation that appeared to suggest she had withdrawn the money to pay for a medical procedure.
61 When asked later about the transfer of the $30,000 from a joint account to another Bankwest account, MT again said it was to pay for the surgery that she had earlier said the $90,000 was for.
62 When asked by the Tribunal as to her understanding of her financial position MT informed the Tribunal she had income from pensions based in the USA and shares.
63 MT appeared to become quite confused at times during the hearing and was tangential in her responses.
64 The hearing on 26 June 2017 having commenced at 3 pm was adjourned at 4:43 pm at the suggestion of Mr Butler, partly due to MT becoming tired.
65 On the resumption of the hearing on 18 September 2017, MT's situation had significantly changed in that she had suffered a fall and following respite care had moved to a residential facility.
66 MT had also agreed to and been assessed by Dr Olivia Lee.
67 Mr Butler, on behalf of MT, accepted that following Dr Lee's report, there was evidence upon which the Tribunal could make a guardianship order and did not oppose such an order being made.
68 In regards to an administration order Mr Butler submitted that whilst there was evidence upon which the Tribunal could make an administration order, there was no need for such an order as the needs of MT could be met by other means less restrictive of her freedom of decision and action namely, the EPA signed on 7 March 2017 appointing RE as her attorney.
The issues
69 The issues which arise for determination are:
a) whether MT is unable by reason of a mental disability to make reasonable judgements in respect of matters relating to all or any part of her estate and is in need of an administrator;
b) whether MT is unable to make reasonable judgments in respect of matters relating to the person or is in need of oversight care or control in the interests for health and safety when there exists a need for the appointment of a guardian;
c) if there is a need for a guardian or administrator, whether the need can be met by other means less restrictive of MT's freedom of decision and action;
d.) if an administrator and or guardian should be appointed, who is suitable to be appointed to those roles; and
e) what functions should the guardian and administrator be given if appointed.
Medical evidence
70 The majority of the medical evidence before the Tribunal was from hospital records, written reports either prepared specifically for the hearing or copies of reports sent to MT's general practitioner
Dr L Mitchell general practitioner
71 Dr Mitchell provided a standard Tribunal Medical Report dated 23 January 2017. In Dr Mitchell's report, Dr Mitchell:
a) in response to the question as to whether MT suffered from a mental disability stated that MT's diagnosis was unclear;
b) considered MT could manage simple financial matters on the basis she was told MT paid her own bills and did her own shopping;
c) was unsure if MT could manage complex financial matters and that MT said she always asks RE before making any big decisions;
d) was unsure if MT had capacity to commence, defend or settle legal proceedings;
e) considered MT capable of making decisions in relation to medical treatment and accommodation; and
f) was unsure about decisionmaking in regard to services.
72 On 10 March 2017, Dr Mitchell provided a document entitled 'Medical Certificate' stating that she had examined MT and found her fit to sign an EPA. It did not say what the examination had consisted of.
Dr A Criddle
73 Notes dated 11 November 2015 of the hospital discharge planning meeting at which RT, the team from Edwards Rehabilitating Ward, RT's longstanding legal advisor, RT's longstanding financial advisor and IT were present, record that on the admission of MT to SCGH a CT scan of the head showed white matter disease.
74 In view of MT's psychiatric history an assessment was carried out by Dr M Samuel a psychiatrist.
75 The assessment from Occupational Therapy confirmed that whilst MT performs well on the mini mental test score, (MMSE) the performance on the MoCA showed some significant deficits and reflects some problems with decision-making. The conclusion was that it may be caused by a combination of the vascular changes noted on the CT scan of the head as well as MT's longstanding mood disorder identified by Dr Samuels. Dr Samuels recommended commencement on sodium valproate but acknowledged that MT was unlikely to remain compliant given her lack of insight into the impact of her behaviour.
Dr D Dedic Hollywood Private Hospital
76 Dr Dedic, Dr Criddle's registrar, provided a report to Dr Mitchell dated 19 December 2015, in which it is recorded that in view of MT's history a psycho geriatrician opinion was sought and MT was diagnosed with hypomanic episode of bi polar disorder, complicated by lack of insight and sleep.
Dr S Maher General Geriatric Consultant
77 In a report to Dr L Mitchell dated 16 August 2016, Dr Maher noted that:
… opinions from Dr Tracy Ryan from Selby Older Adult Mental Health as well as Dr Matt Samuels, old age psychiatrist of Hollywood was that [MT] very likely has some mild cognitive impairment, pre-existing personality disorder as well as possible hypomania.
After trying to interview her today with her extraordinarily rapid diversion from one idea to the next and circumlocuitous mode of narration, made me think that these diagnoses are most likely correct.
I note that she had an Addenbrook's cognitive exam scoring 90/100 and a frontal assessment battery of 16/18 with a recent in-hospital Montréal cognitive assessment score of 25/30 where 26≥ is normal. I note that there is general concern about behaviour which is longstanding. If there is any evidence from family of serious safety issues or inability to manage her finances, then the family may need to look at an application for administration of her affairs unless she can be persuaded to accept some degree of oversight or assistance. Clearly this will be difficult.
Given that she already scores very highly on cognitive testing she would need another diagnosis to justify a SAT board that she requires a substitute decisionmaker and this would need to be along the lines of a mental health diagnosis.
…
… Her mild cognitive impairment may well be resulting in some exacerbation of the previous tendency to hypomania and personality disorder traits. … Our department could assist with further cognitive testing with a CAMCOG which may be more helpful in further establishing her cognition.
Dr T Ryan Psychiatrist
78 The discharge summary from MT's stay at the Selby Older Adult Psychiatric Service from 27 August 2016 to 16 September 2016 states:
…
Thus to summarise: Following intensive daily assessment at home there was clear evidence of no formal mental illness but persistent extreme circumstantiality of thought, tangentiality of thought, repeated concern by the team regarding [MT's] ability in relation to complex financial matters with clear evidence of independence in other day-to-day living activities.
79 In a report prepared for the Tribunal dated 25 January 2017, Dr Ryan gives details of various cognitive testing results that are all within the normal range but notes she is not aware of any neuropsychological/cognitive assessment being conducted.
80 She also states that the mental disability diagnosis was unclear as at the 16 September 2016 when she last saw MT. Dr Ryan noted that when she conducted cognitive testing of MT in 2016, the scores were different to those when Dr Samuel conducted testing in 2015 which led her to suggest MT's condition may be fluctuating.
81 She found MT presented with significant circumstantiality and tangentiality of thought but without other evidence of mental illness.
82 Dr Ryan also provided a standard Tribunal Medical Report dated 3 February 2017 in which she again indicated MT's mental disability's diagnoses was unclear, that it was fluctuating and that she was unsure about MT's capacity to make decisions in relation to her estate and her person.
Dr Teck Yew Aged Care Physician
83 Dr Yew reviewed MT at the request of her legal advisors Butlers, for the purpose of providing a report as to her cognition and testamentary capacity.
84 Dr Yew is an aged care physician and is a member of the Fellowship of the Royal College of Physicians in Australia and New Zealand, and his primary specialty is in aged care and memory assessment.
85 Dr Yew saw MT for a little over an hour and provided a report dated 21 April 2017. Dr Yew did not have the benefit of any medical reports or any information in respect of MT other than from a letter of instruction from Butlers dated 18 April 2017.
86 The letter of instruction recounted the proceedings in the Tribunal and that they had come about as a result of a report from Dr T Ryan stating that MT did not have capacity to deal with complex legal decisions but that Butlers were confident that MT did have capacity. I will come back to the statement that Butlers believed MT had capacity later.
87 Dr Yew formed a view on MT's cognition based on his discussion with her about current political issues, the names of famous tennis players and some cognitive testing designed to test memory and the Frontal Assessment Battery test.
88 Each of the three tests would have taken about 10 minutes each (as is stated on notes to the tests). The doctor also conducted a physical examination of MT.
89 Dr Yew's conclusion was that MT was a highly intelligent woman who scored within normal limits on cognitive testing considering her level of education and age. His opinion was that MT had no cognitive impairment.
90 In oral evidence given by telephone, Dr Yew confirmed the tests were for short term memory and recall and the Addenbrooke Cognitive Examination was good at looking at verbal skills and verbal memory (T:5; 29.05.17). He regarded his objective in reviewing MT as being to try to find out whether 'she has good memory function and cognitive capacity' (T:7; 29.05.17).
91 Dr Yew reported that MT was quite fixated on what has happened with her son and daughter and when her husband passed away and was angry about what happened. When asked if having further information about MT's history and what had in fact happened with her husband would have assisted him in his assessment he said it would depend upon whether what MT had told him was true because he was not sure if it was true but that MT thought it had happened (T:7 and 9; 29.05.17).
92 Dr Yew confirmed that he understood he was being asked to determine testamentary capacity; and that his skill base was assessing cognitive impairment or whether the cognitive impairment will impact the way MT makes decisions (T:9; 29.05.17).
93 Dr Yew went on to say that this particular assessment was quite unusual for him; that it was unusual because it was just about finances; that usually it is because a family member is seeking help because they are worried about the person; and that usually he would obtain information about the patient from the person's children or next of kin but that he was unable to obtain that information because MT would not permit it (T:11; 29.05.17).
Dr Yue Chong (Olivia) Lee Consultant Psychiatrist
94 Following the 26 June 2017 hearing, MT agreed to attend a review with Dr Lee organised by OPA.
95 Dr Lee is a Fellow of the Royal Australian and New Zealand College of Psychiatrists with advanced certification in old age psychiatry since 2010.
96 The review, once agreed to, was delayed due to MT suffering a fall and subsequent hospitalisation. The review took place on 21 August 2017 and 2 September 2017. On the first occasion, MT was living alone in the former matrimonial home and on the second occasion, MT had moved to a low level residential care facility.
97 For the purpose of the review Dr Lee was provided with information from various sources, including correspondence from her children, a phone call with her daughter JG and medical reports, including Dr Tech Yew's report.
98 Dr Lee found MT not to suffer from any major mental illness.
99 Dr Lee found no evidence of psychosis with delusions or perceptual disturbances. Whilst Dr Lee could not elicit any history to suggest manic episodes, it appeared to Dr Lee that MT was assessed by medical professionals to be elevated in mood in 2015. Dr Lee does not exclude the possibility that MT may have had periods of hypomania. Dr Lee describes hypomania as not uncommon in people with borderline personality traits due to the intensity of emotions. The intensity of emotions can escalate to a point of beyond normal accepted levels. These episodes are not of the severity causing risk to herself or others, and do not require hospitalisation. Hence they are hypomanic rather than manic episodes.
100 Dr Lee reports:
…
I am however of the impression that [MT] most likely suffers from mild cognitive impairment. I acknowledge that Dr Yew's and Dr Ryan's assessment in 2015 and 2017 have found no significant cognitive impairment. However the verbatim repetitiveness of her speech, the tendency to perseverate and being difficult to interrupts suggest some subtle changes in her cognition. There is collateral history of concerns regarding her ability to look after herself due to difficulty interpreting written information, encoding and retrieving information. However she does recognise that she now receives showering assistance because of her back injury rather than cognitive loss of ability. Considering the absence of significant impairment in bedside testing, I suspect more detailed neuropsychological testing would find some executive dysfunction and shortterm memory loss which are likely to be mild. And with basic finances and selfcare. it would unlikely be interfering with her function. However this would have implications for complex financial matters and high risk health related decisionmaking capacity.
101 Dr Lee also reports:
…
Assuming the reports of [MT] not coping at home are reflective of her living situation, the denial of difficulties coping at home are likely due to a lack of insight. The weight of these reports are supported by Dr Criddle geriatrician, Dr Mitchell general practitioner and Dr Ryan, psycho geriatrician who have spent a lengthy period of time observing [MT]. All have reported concerns. Dr Yew's assessment of her cognition is one of screening and considering [MT's] pre morbid functioning, would unlikely detect more subtle changes in cognition. But also the assessment was brief in duration compared with to the periods of impatient and daily visitation contacts that the other clinicians had.
It is fortuitous that [MT] has agreed to enter into care albeit now having some regrets over the decision. This however also reflects some impairment in decisionmaking, whereby her decision to enter care is not consistent.
Thus overall, in my opinion, [MT] does not have capacity to make decisions regarding her own self care.
…
Overall in my opinion, she has the capacity to manage basic financial matters such as day to day transactions. However she lacks the in depth understanding required to manage the more complex financial matters such as the cost of entry into care, the bond required, the management of her financial assets with various portfolios, term deposits and diversified funds as well as shares. Indeed it is possible that she had never had the necessary understanding of these financial matters because she had never had to manage them by herself. She herself had acknowledged as such. Hence the matter then falls onto whether she has capacity to appoint an appropriate administrator.
Capacity to appoint a guardian
When enquired, [MT] demonstrated an understanding that a guardian makes decisions regarding health care. When asked who she would appoint, she was at a loss. … Despite prompting, she could not state any qualities in the person for her to appoint as her guardian.
Thus overall on this matter, I am of the opinion that [MT] is not able to make a decision regarding the appointment of a guardian at this point in time. Should one be required to be appointed, I would recommend the office of public advocate to allocate a person.
Capacity to appoint an administrator
…
[MT] could not state whether or why she believed [RE] was acting in her best interest.
…
In my opinion, [MT] demonstrates a lack of capacity to appoint an administrator overall. She clearly has a very conflicted relationship with her children. She has placed her trust in her current accountant. However she is unable to justify that trust. Again by way of lack of consistency in her decision-making, the complexities of the financial issues that requires decisions, I am of the opinion that she is easily influenced by her emotions. This would influence her ability to make decisions on who would be acting in her best interest. This, in my opinion, likely relates to her premorbid personality with borderline traits. With the complication of mild cognitive impairment, in my opinion the risks of her interest being compromised by decisions made in periods of emotional dysregulation would be high. Thus I recommend the appointment of a public trustee as her administrator.
Other Evidence
Report from OPA
102 By order dated 11 January 2017, the Tribunal referred an application for administration of MT and by order dated 3 May 2017, the Tribunal referred an application for guardianship to OPA and for investigation and to provide written reports under s 97(1)(b)(iii) of the Act. The Tribunal requested the Public Advocate to investigate:
• whether the proposed represented person is in need of an administrator/guardian;
• if administration/guardianship order is to be made, who would be suitable and willing to be appointed;
• whether the enduring power of attorney dated 26 June 2016 provides a less restrictive alternative to the making of an administration order;
• whether the enduring power of guardianship dated 24 August 2010 is a less restrictive alternative to the making of a guardianship order;
• what are the views and wishes of the proposed represented person regarding the issues arising in the proceeding;
• what functions should be conferred on a guardian, if an order is made; and
• all other matters the Public Advocate considers relevant.
103 OPA provided reports to the Tribunal dated 2 March 2017 and 24 May 2017.
104 In the report dated 2 March 2017, OPA recommended the matter be adjourned to obtain a more definitive medical opinion and after the adjourned hearing of 4 March 2017, OPA made arrangements for MT to be reviewed by a psychiatric geriatrician at no cost to her (the Tribunal notes Dr Lee's account for $3,506.80 has been forwarded by OPA to MT's daughter). MT had expressed some concern about the cost of a review as the review by Dr Yew organised by Butlers cost $5,000. Mr Butler initially informed the Tribunal that MT declined to attend for a psychiatric geriatric review.
105 The OPA reports are detailed and were very helpful to the Tribunal.
106 MT informed the investigator that she was a speech pathologist in the USA and was comfortable with discussions about capacity as she used to conduct capacity tests such as the MMSE.
107 Relevant to the issue of administration the investigator noted that MT gave her income from her late husband's USA pension as being about $700 per month and a USA social security pension of $50 per month when in fact they are about A$6,316 and US$264 respectively. She also had income from Australian investments/bank deposits.
Butlers Ms Matrioni and Mr Butler
108 During discussion between Mr Butler and the Tribunal at the first hearing on 7 March 2017 as to what orders were being sought by him, Mr Butler informed the Tribunal that whilst a s 40 application for administration had been filed by his firm, he was not seeking an administration order as he was instructed that his client had capacity to manage her own affairs and this was also his opinion based on his contact with her (T:7; 07.03.17).
109 Ms Matrioni whose name the application was in and who was the solicitor with the primary responsibility for MT's affairs gave evidence that (T:7 and 10; 07.03.17):
I believe there are days, as Mr Butler said, where [MT] is very clear and I believe there are days in which she is not, and it's difficult to know which day you're going to get legal advice or take legal advice from her. So I think that this application should proceed on the basis of an administration application because I'm unclear whether when [MT] has got capacity and when she does not. There are definitely days in which I've spoken to her and I am aware that she does not have capacity, to be very clear on it, and there are days in which I've spoken to her in which I think she does have capacity to understand the advice that I am giving her.
….
Well, I am [MT's] solicitor and I brought this application in that regard. And what Mr Butler is saying is correct, that there are days as recent as a few weeks ago where Mr Butler gave evidence to [MT] and she had a very clear idea what was said to her and she could repeat back to us the advice that we had given her. There are other days when [MT] calls me and she appears to be more confused.
She doesn't understand what has happened with the severing of the joint tenancy and I don't know that [MT] has got capacity to understand that that has happened. She has it's a very complex legal scenario.
…
[MT] requires legal advice. Very legal advice that is complex in nature. She is as I explained in the application, she is in a short time, she is required to enter into a deed to protect her interest in her own property. I am not convinced that she can understand that and she needs that legal advice and she needs someone to assist her on in that regard.'
110 There was further discussion between the Tribunal and MT in the presence of Ms Matrioni and Mr Butler:
LE MIERE MS: … But I have heard from one person, who has given me evidence that there are some days you do not have capacity to deal with complex legal matters.
[MT], MS: That was when my husband had just died.
LE MIERE MS: No, it's from Ms Matrioni sitting here now has told me on some occasions you do not have capacity to deal with complex legal matters[.]
Capacity
111 Dr Mitchell, in her doctor's guide says that:
a) she considers MT capable of making medical decisions and accommodation decisions but is unsure in regards to services; and
b) she is unsure as to MT's capacity to make reasonable decisions in respect of complex financial decisions and in regard to legal matters.
112 Dr Mitchell's opinion is supported by MT's actions in agreeing to treatment after her fall and agreeing to go into supported accommodation.
113 Dr Lee in her report of 23 August 2017, comments that MT most likely suffers from mild cognitive impairment whilst acknowledging that no such impairment was found by Dr Ryan or Dr Teck Yew.
114 It is Dr Lee's opinion that a more detailed neuropsychological testing would find some executive dysfunction and short term memory loss which was likely to be mild. However she considers that whilst this would not interfere with her functioning in relation to basic finances and self-care, it would have implications for financial matters and high risk health related decisionmaking capacity.
115 All other medical practitioners other than Dr Tech Yew expressed concerns in relation to MT's decisionmaking abilities and that they were in essence unsure as to her capacity with some of them suggesting further investigation/assessment should be conducted to determine capacity.
116 Other than Dr Mitchell conducting numerous MMSE tests, only Dr Tech Yew and Dr Lee examined MT with the specific purpose of determining MT's capacity.
117 Dr Tech Yew gives his primary specialty as aged care and memory assessment. Dr Yew gave evidence that his assessment on the first occasion when he saw MT for a little over an hour, that he was specifically testing for memory. The examination included a physical examination, the application of two cognitive tests, the MMSE and the Addenbrooke's Cognitive Examination and a discussion on Prime Minister Turnbull's cancelling of the 457 visa subclass (Dr Yew's report and T:4; 29.05.17).
118 On the second occasion he saw her it was for the purpose of finding out her understanding of the will she had written and again the review went for about an hour (T:13; 29.05.17).
119 Dr Tech Yew's assessment was carried out without any corroboration (except in respect of medication) of the information MT provided. In addition he was told by Butlers they were confident that MT had capacity, they failed to mention that there were occasions when they considered MT did not have capacity to instruct them despite the evidence given by Ms Matrioni referred to previously.
120 The first report from Dr Lee addressed MT's mental state and the second report addressed MT's capacity.
121 Dr Lee's assessment was carried out on two separate occasions (the second occurred when Dr Lee visited MT at the residential care facility), after a review of previous medical reports and oral reports from her family and her friend/housekeeper.
122 In her interaction with MT, Dr Lee discussed MT's current circumstances and her attitude and understanding of them. Dr Lee noted on the fifth page of her 23 August report, that MT repeated a story about her distant past and it was described in verbatim minutes later.
123 Dr Lee also noted that there was a tendency to return to events in longterm memory and her thoughts were highly circumstantial and over inclusive.
124 Dr Lee includes in her assessment that from the history and mental state as well as collateral history gathered, MT demonstrated unstable and intense interpersonal relationships with extremes of idealisation and devaluation of at least some of her relationships.
125 Dr Lee found MT most likely suffers from mild cognitive impairment. Dr Lee was of the view that MTs verbatim repetitiveness of speech, the tendency to perseverate and being difficult to interrupt, suggested some subtle changes in her cognition. She is of the opinion that MT suffers from some of the traits of borderline personality disorder.
126 The reports from Dr Mitchell are limited in their explanation for her opinion. Dr Mitchell in her report indicates that she is unsure of MT's capacity to make complex financial decisions and to conduct legal proceedings which is entirely consistent with Dr Lee's opinion.
127 Dr Mitchell was asked to complete a simple form (a Tribunal standard form doctors report) and did not have the benefit of being asked to assess MT specifically for that purpose. Being MT's general practitioner, she had more daytoday contact with MT and her opinions appear to be based more upon her interactions, albeit in a medical sense with MT rather than following a comprehensive psychiatric assessment.
128 The only doctor who is of that opinion that MT can manage complex financial matters is Dr Tech Yew.
129 Dr Lee finds that MT suffers from mild cognitive impairment; has a borderline personality disorder with possible periods of hypermania; and whilst the impairment would be unlikely to affect her ability to manage basic finances and self-care, it would have implications for complex financial matters and high risk related decision-making capacity.
130 I prefer the evidence of Dr Lee as to MT's capacity. Her report is comprehensive and addressed both her mental health and capacity as opposed to her memory.
131 Dr Tech Yew's review of MT was far more limited. He gave no consideration to the effect of her mental health on her decisionmaking capacity and appears to base his opinion entirely on the basis of her general knowledge of recent events. Given the length of time spent on tests and a physical examination of MT, Dr Tech Yew would have spent less than 30 minutes otherwise assessing MT. This time appears to have consisted of discussions with her of recent political events and general knowledge. He did not explore her interpersonal relationships or her mental health as Dr Lee did. Despite noting that MT was quite fixated on what has happened with her son and daughter when her husband passed away and was angry about what happened, Dr Yew made no comment on the effect of this on her capacity to make decisions in her best interest. He did accept, when questioned, that his opinion of MT's capacity might be affected depending upon whether what MT told him was correct or accurate (T:7 and 8; 29.05.17).
132 Dr Tech Yew's review of MT was much shorter and more restricted and by his own admission his specialty is memory assessment. This particular assessment was quite unusual for him because it was just about finances and usually it is because a family member is seeking help because they are worried about the person; that usually he would obtain information about the patient from the person's children or next of kin; but that he was unable to obtain that information because MT would not permit it (T:11; 29.05.17).
133 The Tribunal notes Mr Butler did not contest the making of a finding of incapacity in respect of guardianship or administration following Dr Lee's report and did not seek to have Dr Lee attend the Tribunal hearing for the purpose of crossexamination.
134 For the above reasons I accept Dr Lee’s evidence in respect of MT's capacity and find MT:
a) is unable, by reason of a mental disability, which is characterised by her mild cognitive impairment and borderline personality disorder to make reasonable judgments in respect of matters relating to all or any part of her estate; and
b) is unable to make reasonable judgments in respect of matters relating to her person.
Is MT in need for an administrator and guardian or can her needs be met by other means less restrictive of her freedom of decision and action?
Administration
135 MT executed an enduring power of attorney dated 26 July 2016 (2016 EPA) and a further one during the course of these proceedings dated 7 March 2017 (2017 EPA).
136 The 2016 EPA appointed RE, her accountant and her son, IT, as attorneys. It did not come into effect until such time as the Tribunal declared MT not to have capacity to manage her own affairs.
137 The 2017 EPA appointed RE as her attorney and was not subject to any condition.
138 Mr Butler made submissions that in the event the Tribunal found MT did not have capacity, as he conceded, on the basis of Dr Lee's report, it was open to the Tribunal to find, that there was a less restrictive option available to meet MT's needs other than an administration order, namely the 2017 EPA.
139 Mr Butler referred to the report of Dr Mitchell as evidence that MT had capacity to execute the 2017 EPA. He also submitted that Dr Lee's report was as to MT's capacity at the time of the report and did not reflect MT's capacity in March 2017 when she executed the 2017 EPA. He further purported to give evidence that it was his opinion that she had capacity to execute an EPA when she signed the 2017 EPA.
140 The Tribunal has some concerns about Mr Butler's ability to objectively assess MT's capacity given:
a) Mr Butler had determined, prior to and maintained throughout the proceedings, that MT had capacity to make all her own decisions;
b) Mr Butler stated that at the time Ms Matrioni had said MT did not have capacity (T:7; 07.03.17), she had been referring to the time immediately following MT's husband's death (T:6; 29.05.17) when this was not correct (T:10; 07.03.17);.
c) Mr Butler had arranged for MT to be referred to Dr Tech Yew, a geriatrician, for a medical assessment in circumstances where:
i) he knew that the applicant had asked for a neuropsychological assessment;
ii) the issue in respect of capacity was not principally in respect of her memory, Dr Tech Yew's area of specialty; and
iii) the original report from Dr Ryan, a psychiatrist, raised the issue of MT's capacity in the context of her past psychiatric history.
142 Mr Butler does not suggest that his opinion of MT's capacity with respect to her ability to execute an EPA had changed since she had executed the 2017 EPA.
143 There is nothing in Dr Lee's report that would suggest MT's capacity to execute an EPA had changed in recent months. Her assessment of MT is based on MT's mental health and the effect of this on her capacity to make an informed choice as to an administrator. Based on Dr Lee's report the Tribunal is not satisfied that MT had capacity to execute the 2017 EPA and therefore revokes the 2017 EPA.
144 MT's finances are complicated and decisions will need to be made to liquidate assets to pay a refundable accommodation deposit to the facility she is now residing at.
145 Complex Supreme Court proceedings in respect of her late husband's estate are foreshadowed by the parties.
146 The Tribunal finds there is need for an administrator and there is no less restrictive means available of meeting MT's needs than an appointment of an administrator.
Who should be MT's administrator?
147 No party has suggested a family member be appointed as administrator.
148 Butlers put forward RE to be appointed an administrator on the basis that MT had expressed the view that he should manage her affairs by choosing to appoint him as her attorney.
149 Whilst RE now says he accepts that MT does not have capacity and needs an administrator, the Tribunal is not confident that he will act independently of MT's wishes including doing what MT asks of him regardless of whether it is objectively in MT's best interests.
150 RE's past conduct indicates he will simply do what MT wishes rather than make an independent assessment as to what is in MT's best interests. On a number of occasions when asked by the Tribunal as to why he took certain action his response was consistently that it was what MT wanted.
151 At the commencement of the proceedings RE held an EPA conditional upon a determination by the Tribunal of MT's incapacity. He took no steps to have MT's capacity determined by the Tribunal and appeared to have little understanding as to what his obligations as an attorney were in this regard.
152 MT has complained to Dr Lee about her legal expenses and her lack of understanding as to their quantum. RE has taken no steps to review the accounts which are, according to MT, substantial and are paid by monthly deductions from her bank account.
153 A degree of personal animosity and lack of trust between MT's children and RE can be gleaned from the correspondence between them. This would not be conducive to the resolution of outstanding matters between the parties with respect to RT's estate or being able to work together for the benefit of MT.
154 Dr Lee's assessment of MT's reasons for forming the view that MT did not have capacity to appoint an attorney apply equally to her ability to make an informed choice of an administrator.
155 Section 4(7) of the Act requires the Tribunal, , as far as possible, to seek the views and wishes of the represented person. The Tribunal has taken into account MT's wishes but does not consider RE to be a suitable person to be an administrator for all the reasons set out above.
156 In the event the Tribunal does not accept RE as a suitable administrator, Butlers have submitted that a private trustee company, Australian Unity Trustees (AUT) be appointed as administrators in preference to the PT.
157 Section 68(2)(b) of the Act prohibits the appointment of a corporate trustee unless the trustee company is the executor of the represented person's will. It does not promote the appointment of a corporate trustee as an administrator where the trustee is the executor of the represented person's will.
158 Mr Butler has provided no reasons for the appointment of AUT rather than the PT other than a suggestion that AUT's fees may be slightly but not significantly less than PT's fees.
159 The Tribunal notes that the solicitor for IT and JG suggest that in fact AUT's fees are higher.
160 I have to assume that if Mr Butler is putting AUT forward as a preferred administrator he does so on instructions from MT and it is therefore MT's preference that AUT be her administrator. I am required to take into account MT's wishes, however, it is not clear that MT has the capacity to make an assessment as to why AUT should be preferred over the PT.
161 Mr Butler was only able to offer a possible difference in the fee structure as a reason to prefer AUT, however, I am not satisfied that AUT fees are less.
162 There are specific fee structures for administration where the PT is appointed administrator pursuant to an order under s 64 of the Act. The PT is a non-profit organisation.
163 There is no cogent evidence before me as to why I should appoint AUT. There is however reasons (however minor) why I should not appoint AUT.
164 Both IT and JG oppose the appointment of AUT on the basis of a perceived association between AUT and Butlers. Again this distrust could be counterproductive in resolving outstanding matters between MT and RT's estate.
165 The perceived or real relationship between Butlers and AUT could also possibly impact on the administrator's ability to objectively assess Butlers past and possible future legal fees charged to MT which the Tribunal notes are a concern to MT and which have not been reviewed by anyone in the way legal fees are normally reviewed by clients.
166 MT has expressed concern regarding Butlers' fees. It is not clear if those fees are in respect of these proceedings or other matters. MT appears to have not understood her rights to review or to have Butlers' fees reviewed. Indeed it is not clear she has had a clear understanding of invoices she has paid, including those other than Butlers.
167 There is also the question of what happened to the $30,000 withdrawn on 17 June 2016 from the joint account with her late husband. It is quite possible MT put it in some other account belonging to MT and it simply needs to be located. These are all matters that need to be looked into. I appoint the PT as MT's administrator.
168 In two years all outstanding matters between MT and RT's estate may be resolved and her finances simplified. MT previously had a good relationship with her son IT and indeed wanted him at one time to act as her attorney so it is possible when all matters relating to RT's estate are resolved and MT is settled in her new environment, relations will have mended such that it may be possible to consider appointing someone other than the PT as administrator.
169 The administration order should be reviewed in two years.
Guardianship
170 All parties agreed that the only suitable person to appoint as guardian at this time was OPA.
171 The evidence of Dr Lee is that it was fortuitous that MT had agreed to enter care but that she was now having some regrets over this decision and that MT did not have capacity for high risk health related decisionmaking capacity.
172 I consider it appropriate that OPA has an accommodation function in the event MT should decide to leave the care facility, a concern expressed by Dr Lee. At this time MT is very restricted as to the support she has. Her relationship with her daughter is still in the early stages of renewal; her son lives in the USA and there is no mention of close friends. MT appears to be heavily reliant upon her paid housekeeper for assistance and will therefore be assisted by having a guardian who can advocate for her. 173 The functions of the guardian should be limited to decisions concerning:
a) medical treatment;
b) accommodation; and
c) services.
174 Again I will make the order reviewable in two years, given the improving relationship between MT and her daughter, that it may be possible to appoint a family member as guardian in the future.
Orders
Administration
1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2. The Public Trustee is directed pursuant to s 69 of the Guardianship and Administration Act 1990 (WA) to:
(a) review any significant payments and other dispositions of property made by MT in the last 12 months and as a result of that review to take whatever action it considers appropriate in MT's best interests; and
(b) consider if it is possible or reasonable to attempt to trace the $30,000 withdrawn on 17 June 2016 and if it is to proceed to attempt to trace the $30,000.
3. This order is to be reviewed by 10 October 2019.
4. The enduring power of attorney dated 7 March 2017 by which the represented person appointed RE to be her attorney is revoked.
Guardianship
1. The Public Advocate of Level 23, David Malcolm Justice Centre, 28 Barrack Street, PERTH be 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) subject to Div 3 Pt 5 of the Guardianship and Administration Act 1990,(WA) to make treatment decisions for the represented person; and
(c) to determine the services to which the represented person should have access.
2. 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.
3. This order is to be reviewed by 10 October 2019.
4. The enduring power of guardianship dated 24 August 2010 by which the represented person appointed IT as her substitute enduring guardian is revoked.
I certify that this and the preceding [174] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS P LE MIERE, MEMBER
0
1
1