NA
[2022] WASAT 118
•18 NOVEMBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: NA [2022] WASAT 118
MEMBER: JUDGE K GLANCY, DEPUTY PRESIDENT
DR B DE VILLIERS, MEMBER
MS R LAVERY, MEMBER
HEARD: 18 NOVEMBER 2022
DELIVERED : 18 NOVEMBER 2022
PUBLISHED : 5 JANUARY 2023
FILE NO/S: GAA 4352 of 2022
NA
Represented Person
MD
First Applicant
DM
Second Applicant
Catchwords:
Full Tribunal review of guardianship and administration order - Section 17A of the Guardianship and Administration Act 1990 (WA)
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 17A(1), s 43, s 64, Pt 5, Div 3
Result:
Orders made that have the effect of reinstating EPA and EPG in favour of MD and DM
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| First Applicant | : | I Priddis |
| Second Applicant | : | I Priddis |
Solicitors:
| Represented Person | : | N/A |
| First Applicant | : | Vogt Graham Lawyer |
| Second Applicant | : | Vogt Graham Lawyer |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression. The parties have been deidentified in these reasons. For the sake of clarity, MD, DM and AB are NA's daughters, and EA is her son.)
Introduction
MD (first applicant) and DM (second applicant) applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for a review of a decision made by a single member of the Tribunal, Member Conley, on 6 September 2022.
In that decision, Member Conley declared that NA is:
(i)unable by reason of mental disability to make reasonable judgments in respect of matters relating to her estate;
(ii)in need of an administrator of her estate;
(iii)is incapable of looking after her own health and safety;
(iv)unable to make reasonable judgments in respect of matters relating to her person;
(v)in need of oversight, care or control in the interests of her health and safety; and
(vi)in need of a guardian.
The learned member then made orders revoking the enduring powers of attorney (EPA) dated 28 September 2019 and 18 August 2020 and enduring power of guardianship (EPG) dated 28 September 2019 and EPG dated 8 February 2022 and appointing the Public Trustee as plenary administrator of NA's estate and conferring upon the administrator the power to make gifts on behalf of the represented person of up to $1 000 a year.
The learned member also made an order appointing the Public Advocate as NA's limited guardian with the functions of:
(i)deciding where NA was to live, whether permanently or temporarily;
(ii)deciding with whom NA is to live;
(iii)making treatment decisions for the represented person, subject to Div 3 of Pt 5 of the GA Act; and
(iv)determining the services to which the represented person should have access.
The learned member also ordered that the Public Advocate have the power to delegate those functions to someone else who was employed in the Public Advocate's office and made orders for the review of the administration and guardianship orders by 5 September 2023.
Those are the orders which were the subject of the review application before us.
Tribunal's review jurisdiction
Section 17A(1) of the GA Act permits any party who is aggrieved by a decision of the Tribunal consisting of one member, to request the President of the Tribunal to arrange for a Full Tribunal to review the decision. Reviews come within the Tribunal's review jurisdiction.
In exercising its review jurisdiction as the Full Tribunal today, the hearing was conducted as a hearing de novo, which means we were not confined to material that was before Member Conley and we were entitled to, and have considered, new material that was received for the purposes of today's hearing. The purpose of the review is to arrive at what we call the correct and preferable decision at the time of the decision on review.
We are not looking to find that the learned member was wrong when she made her decision. What we are looking to do is to decide today what the correct and preferable decision is having regard to all of the material before us.
The relevant legislation
Before turning to the specifics of this case, it is important that we remind ourselves of some matters of general application concerning proceedings under the GA Act.
The Tribunal is required to observe the principles which are set out in s 4 of the GA Act.
That section tells us that the primary concern of the Tribunal is the best interests of the represented person. In this case, we were concerned primarily with what is in NA's best interests.
It also tells us that every person is presumed to be capable of managing his or her own affairs and making reasonable judgments in relation to matters about his or her estate unless the contrary is proved to the satisfaction of the Tribunal. It is only where that presumption is overturned that we then go on to consider whether or not orders need be made. And that presumption applies in respect of every application that comes before us under the GA Act, including today's.
Another general principle derived from s 4 of the GA Act is that the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the represented person or the person for whom it is considering making orders.
An administration order is not to be made if the needs of the represented person can, in the opinion of the Tribunal, be met by means that are less restrictive of the person's freedom of decision and action and a plenary guardian is not to be appointed if the Tribunal is of the opinion that the appointment of a limited guardian would be sufficient to meet the represented person's needs.
Finally, any order appointing any limited guardian or administrator needs to be in terms that, in the opinion of the Tribunal, impose the least restrictions possible on the represented person's freedom of decision or action.
Evidence before the Tribunal
Before we move on to look at how we apply those principles to the evidence that is before us, we need to just note the evidence which was before us today.
We are not going to identify every document that was in the hearing book. We simply note we had regard to everything that was in the hearing book.
In addition to the contents of the hearing book, as we mentioned at the outset of the hearing today, we also had before us an affidavit of MD sworn 19 November 2022 that was received after the hearing book was prepared. Additionally, we had regard to an affidavit of DM also sworn on 16 November 2022.
We received a report from the Public Advocate dated 16 November 2022 which we have also had regard to, and which also did not form part of the hearing book.
And we received and considered the report of the trust manager from the Public Trustee's office, dated 14 November 2022, which also was provided after the hearing book was prepared.
Importantly, we also heard from NA about her views and wishes, to the extent that she was able to participate and follow along with what the purpose of the hearing was.
We had regard to the evidence that was given by MD and EA, NA's son, who was present in the hearing room, from DM who participated on the telephone and also and the evidence given by AB who was present in the hearing room and gave evidence today.
We also had regard to the evidence give in the hearing before Member Conley. The transcript of that evidence forms part of the hearing book to which we had regard.
The appointment of a guardian
Section 43 of the GA Act states that where the Tribunal is satisfied that a person is over the age of 18 and is incapable of looking after his or her own health and safety, making reasonable judgments in respect of matters relating to himself or herself, in need of oversight, care or control in the interests of his or her own health and safety or the protection of others and in need of a guardian, then the Tribunal can declare the person to be in need of a guardian.
The Tribunal can then appoint the guardian, either a plenary guardian or a limited guardian and can appoint jointly more than one person to be the guardian. Where a limited guardian is appointed, the Tribunal then also needs to confer the functions on the guardian.
In this particular case, NA's date of birth is 27 October 1928. Clearly, NA is over the age of 18.
It is not in issue, and the evidence made clear to the Tribunal, that NA is someone for whom a guardianship order could be made. That is, she is someone who has been diagnosed with progressive vascular dementia. Dr L's report of 5 July 2022 and the evidence that was then conveyed to the Tribunal by the public guardian about the portions of the report that Dr L had not included but had been clarified by Dr L, make that diagnosis clear.
The Montreal Cognitive Assessment scores when they were administered to NA were 9 out of 30 when the test was administered by Dr L on 4 July 2022 and 15 out of 30 about a year earlier. At the time this was characterised as a 'moderate cognitive impairment'.
MD has told us today that more recently there has been a better score on a test for capacity that was recently administered. We have not seen the recent capacity test results.
Nevertheless, we have no reason to doubt MD and are prepared to accept that there has been some improvement in NA's test results.
Even accepting that is the case, it has been accepted by all of NA's family members that she suffers from a cognitive impairment described as a type that means that NA can no longer make decisions about her health and safety and is in need of oversight, care and control and cannot make decisions about her person any longer. The family all accept that diagnosis and assessment and agree that she needs someone to undertake decision-making on her behalf. That is consistent with the medical evidence.
Even though NA can express her wishes, they may not necessarily be for things that are any longer in her best interests. In light of all of that, we find and there is no doubt that NA is unable to make the decisions in the domains required for her life now and is someone for whom a guardian could be appointed.
We need, therefore, to then move on next to consider the question of whether or not there was a less restrictive means available for decisions to be made other than by the appointment of a guardian.
In this case, NA had made two EPGs, the first made in September 2019 appointing two of her three daughters, MD and DM jointly to be her guardian, jointly and severally in fact, so. The second EPG was made on 8 February 2022. In that second EPG she appointed her son, EA, to be her guardian. EA accepts that at the time that document was executed, NA had no capacity to enter into such a legal document and therefore accepts that it cannot now be reinstated.
We make no criticism of EA for assisting his mother to make the second EPG. We accept he did so in good faith because he was, at that time, caring for his mother. However, he now understands that NA did not have the capacity to make that EPG at that time.
And EA also was very frank with the Tribunal that he accepts that the document that was entered into in 2019, in which two of his sisters were appointed, was made at a time when his mother did have capacity to validly enter into that document and also that it will act in her best interests and he has no concerns about the kinds of decisions his sisters will make if acting on the authority of that EPG.
There was no concern from the Tribunal's point of view that being absent from the jurisdiction, as DM is living in Queensland, or even living some distance away in the country in Western Australia, would prevent the guardian acting on an EPG from performing the functions that need to be performed in reliance on its authority.
Because a less restrictive means is available and accords with wishes that were expressed by NA at the time that it was entered into when she could express her wishes, we are going to make orders which will, at the end of the day, reinstate that first EPG. Therefore, we do not need to move on to considering who should be appointed a guardian because there is no need for a guardian to be appointed in this case.
Now that the family have managed to come to an agreement about where NA is to live, and that that big decision which was vexing the family is now settled between them and they seem to be able to work cooperatively, and agreed that everybody will be kept informed of NA's circumstances, we are satisfied that the first EPG will act in NA's best interests.
Provisions in relation to the appointment of an administrator
We move on then to consider the issue of the appointment of an administrator.
Appointment of an administrator requires the Tribunal to be satisfied of matters that are set out in s 64 of the GA Act. That section provides that where the Tribunal is satisfied that a person in respect of whom an application is made is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to his or her estate, whether all or part of it, and in need of an administrator, the Tribunal can declare that person to be in need of an administrator and, if it does, the Tribunal then needs to appoint a person to be the administrator, or persons to be the joint administrators.
The primary questions for the Tribunal on the review are whether, NA suffers from a mental disability, whether by reason of that mental disability she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate, and then whether or not she is in need of an administrator. It is only if those questions are answered positively, that is if we say 'yes' to each of those questions, then we need to move on to consider who should be appointed as the administrator.
We understand that the description 'mental disability' sounds quite harsh, but it is a legal term with a legal definition for the purposes of the GA Act. It is defined to include intellectual disabilities, psychiatric conditions, acquired brain injuries and dementia. Whilst it sounds quite awful for families to have to hear that term used in connection with their loved one, in this case, the evidence which NA's family accepts is that NA suffers from progressive vascular dementia.
Vascular dementia is something that comes within the definition of mental disability for the purposes of the GA Act. We are therefore satisfied of the first aspect of the test for administration.
We then need to consider whether or not NA is someone who, by reason of that mental disability, is unable to make reasonable judgments in relation to matters concerning her estate.
People are entitled to make bad decisions for themselves, but it is where it is because of a mental disability that reasonable judgments are not able to be made, that the Tribunal can look at the appointment of an administrator.
In this case, that involves an objective and a subjective test. We have to look at whether reasonable judgments can be made, and that is a subjective test because that needs to be assessed in relation to somebody's actual estate.
At the same time, we have to consider whether the person has the ability to engage in the mental processes required to make judgments, and that is an objective test.
In this case, we have regard to the evidence before us, particularly Dr L's report and the evidence of family members about what is needed to give effect to financial decision-making in NA's case now.
We also have to consider what NA herself has said to us today about what she thinks we are here to do and what she thinks she wants to do with her money in circumstances where in fact those things seem to be unreasonable choices in light of the extent of the estate, which is not small but not large either. It essentially consists of money in bank accounts and the property which we are told has a value of about $450,000. That property will need to be sold to pay the accommodation deposit for NA's residential aged care replacement.
We find that it is because of the vascular dementia that NA can no longer make the reasonable decisions about her estate. That seems to be evident from the fact that, until the time the vascular dementia came to manifest itself, NA was quite capable of managing her financial affairs and has done so for years. Therefore, we are satisfied the evidence established that second aspect of the test of administration having been met.
We next consider whether or not, having found that NA is someone for whom an administrator could be appointed, that is necessary. Again, there were two EPAs in place. The first was made in 2019 in favour of DM and MD and the second was made later in favour of EA.
Again, EA was frank with the Tribunal when he said that at the time the second EPA was made, he thought it was the right thing to do but he now accepts that NA no longer had capacity to make a decision to appoint him as the administrator. As a result, he is not pressing for the reinstatement of that EPA.
EA also told us that he accepts that the earlier EPA appointing his sisters was made at a time when NA could make a decision to take that step and he is not challenging its validity and nor has he come before us today telling us his sisters cannot make the decisions that need to be made EPAs in NA's best interests.
We are satisfied that the money that was taken from an account and paid to N, one of NA's grandchildren, was not done with the prior approval of either MD or DM. We are satisfied from the evidence that the issue of the taking of those funds has now been adequately addressed. We are also satisfied from the evidence of MD and DM that they understand the obligations of a donee of a power of attorney and what they might need to do in relation to the cash that has been retained by their sister, AB. We are satisfied that they are well-placed to make financial decisions on behalf of NA and will act in her best interests in doing so via the EPA.
In those circumstances, we are satisfied that the reinstatement of the EPA is the less restrictive option available, such that no administrator needs to be appointed.
Conclusion
Therefore, we are going to make the following orders.
Orders
The Tribunal orders:
1.The orders made on 6 September 2022 in matter GAA 2919 of 2022 are revoked.
2.The orders made on 6 September 2022 in matter GAA 2945 of 2022 are revoked.
3.The enduring power of attorney dated 18 August 2020 by which the represented person appointed EA to be her attorney, is revoked.
4.The enduring power of guardianship dated 8 February 2022 by which the represented person appointed EA to be her guardian, is revoked.
The effect of our orders is to leave both the EPG and the EPA in favour of MD and DM in force.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MA
Associate to Deputy President Judge Glancy
5 JANUARY 2023
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