NB
[2017] WASAT 21
•5 JANUARY 2017
NB [2017] WASAT 21
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 21 | |
| 27/01/2017 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:3244/2016 | 20 SEPTEMBER AND 15 DECEMBER 2016 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 5/01/17 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | The Public Advocate appointed as guardian with certain functions. The represented person's daughter appointed guardian to make treatment decisions. The Public Trustee appointed as administrator of the represented person's estate. | ||
| B | |||
| PDF Version |
| Parties: | NB |
Catchwords: | Guardianship Administration Capacity Specialist medical evidence Dementia Alzheimer's Disease Enduring powers of attorney made in another jurisdiction Enduring powers of guardianship made in another jurisdiction Application for recognition in Western Australia of the enduring powers of attorney and enduring powers of guardianship not before the Tribunal Represented person's estate situated in New South Wales and Western Australia Guardian appointed Administrator appointed |
Legislation: | Guardian and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii), s 110O, Pt 9C |
Case References: | Nil |
Summary | NB is a 73-year-old woman who had been diagnosed with dementia. She had lived in New South Wales with her husband until his death in July 2016.,In the previous six years NB and her late spouse had developed a close friendship with a couple, LC and SC that the latter characterised as a family relationship.,In that time NB and her late spouse had been estranged from their daughter, BF.,After the death of her spouse NB, for reasons which were not entirely clear, developed a mistrust of LC and SC. She decided to contact BF who travelled to New South Wales in August 2016 upon which they both returned to Western Australia.,Since that time NB has been living with BF and her family.,During this period NB had made an enduring power of attorney and enduring power of guardianship appointing LC and SC, which when BF visited NB purportedly revoked and subsequently made a new enduring power of attorney and enduring power of guardianship appointing BF solely.,All of these instruments were executed in New South Wales.,BF made an application for the appointment of a guardian and the appointment of an administrator of NB's estate pursuant to the provisions of the Guardianship and Administration Act 1990 (WA). No application was made seeking recognition in Western Australia of the enduring powers of attorney and enduring powers of guardianship made in New South Wales.,The specialist medical evidence before the Tribunal was that NB was diagnosed with dementia likely caused by Alzheimer's disease and which rendered her incapable in the areas of her personal and financial decisionmaking. The evidence also questioned whether NB had been capable of understanding and making the enduring powers of attorney and the enduring powers of guardianship.,Because of the pace at which events had transpired since the death of her spouse, the Tribunal agreed with LC and SC that there should be some oversight of NB's living arrangements in Western Australia and also in the event that NB changed her mind and wanted to return to New South Wales.,The Tribunal appointed the Public Advocate as NB's guardian to decide her accommodation needs and also to investigate and consider the contact that NB might still have with LC and SC despite her changed view of their relationship.,The Tribunal accepted that BF could continue to make NB's medical decisions and appointed her the guardian for that purpose.,The estate of NB was complicated by the fact that she had assets in New South Wales and in Western Australia and there were conflicting enduring powers of attorney made in New South Wales the operation of which could only be determined in that jurisdiction,In addition there was the medical evidence expressing doubt over NB's capacity to execute the enduring powers of attorney and the ongoing antagonistic relationship between BF and LC and SC.,In combination these matters provided a significant barrier to the orderly realisation and ongoing management of NB's estate in a situation where the determination of her living arrangements had yet to be finally settled.,In these circumstances the Tribunal decided that it was in NB's current best interests to appoint the Public Trustee as her plenary administrator.,The Tribunal set a review of the guardianship and administration orders for 12 months in the expectation that the matter of NB's living arrangements and realisation of her estate would be settled in that time. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : NB [2017] WASAT 21 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 20 SEPTEMBER AND 15 DECEMBER 2016 DELIVERED : 5 JANUARY 2017 PUBLISHED : 27 JANUARY 2017 FILE NO/S : GAA 3244 of 2016 MATTER : NB
- Represented Person
Catchwords:
Guardianship - Administration - Capacity - Specialist medical evidence - Dementia - Alzheimer's Disease - Enduring powers of attorney made in another jurisdiction - Enduring powers of guardianship made in another jurisdiction - Application for recognition in Western Australia of the enduring powers of attorney and enduring powers of guardianship not before the Tribunal - Represented person's estate situated in New South Wales and Western Australia - Guardian appointed - Administrator appointed
Legislation:
Guardian and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii), s 110O, Pt 9C
Result:
The Public Advocate appointed as guardian with certain functions.
The represented person's daughter appointed guardian to make treatment decisions.
The Public Trustee appointed as administrator of the represented person's estate.
Summary of Tribunal's decision:
NB is a 73-year-old woman who had been diagnosed with dementia. She had lived in New South Wales with her husband until his death in July 2016.
In the previous six years NB and her late spouse had developed a close friendship with a couple, LC and SC that the latter characterised as a family relationship.
In that time NB and her late spouse had been estranged from their daughter, BF.
After the death of her spouse NB, for reasons which were not entirely clear, developed a mistrust of LC and SC. She decided to contact BF who travelled to New South Wales in August 2016 upon which they both returned to Western Australia.
Since that time NB has been living with BF and her family.
During this period NB had made an enduring power of attorney and enduring power of guardianship appointing LC and SC, which when BF visited NB purportedly revoked and subsequently made a new enduring power of attorney and enduring power of guardianship appointing BF solely.
All of these instruments were executed in New South Wales.
BF made an application for the appointment of a guardian and the appointment of an administrator of NB's estate pursuant to the provisions of the Guardianship and Administration Act 1990 (WA). No application was made seeking recognition in Western Australia of the enduring powers of attorney and enduring powers of guardianship made in New South Wales.
The specialist medical evidence before the Tribunal was that NB was diagnosed with dementia likely caused by Alzheimer's disease and which rendered her incapable in the areas of her personal and financial decisionmaking. The evidence also questioned whether NB had been capable of understanding and making the enduring powers of attorney and the enduring powers of guardianship.
Because of the pace at which events had transpired since the death of her spouse, the Tribunal agreed with LC and SC that there should be some oversight of NB's living arrangements in Western Australia and also in the event that NB changed her mind and wanted to return to New South Wales.
The Tribunal appointed the Public Advocate as NB's guardian to decide her accommodation needs and also to investigate and consider the contact that NB might still have with LC and SC despite her changed view of their relationship.
The Tribunal accepted that BF could continue to make NB's medical decisions and appointed her the guardian for that purpose.
The estate of NB was complicated by the fact that she had assets in New South Wales and in Western Australia and there were conflicting enduring powers of attorney made in New South Wales the operation of which could only be determined in that jurisdiction
In addition there was the medical evidence expressing doubt over NB's capacity to execute the enduring powers of attorney and the ongoing antagonistic relationship between BF and LC and SC.
In combination these matters provided a significant barrier to the orderly realisation and ongoing management of NB's estate in a situation where the determination of her living arrangements had yet to be finally settled.
In these circumstances the Tribunal decided that it was in NB's current best interests to appoint the Public Trustee as her plenary administrator.
The Tribunal set a review of the guardianship and administration orders for 12 months in the expectation that the matter of NB's living arrangements and realisation of her estate would be settled in that time.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 NB is a 73-year-old woman who has been diagnosed with dementia. She has a daughter BF with whom she currently lives.
2 NB lived in New South Wales until August 2016. In the period from around 2010 she and her late spouse (Mr B), established a friendship with LC and SC whom they met at a Bible study and prayer group organised through their local church.
3 BF had been estranged from her parents since about 2010.
4 Mr B died in July 2016.
5 Subsequent to Mr B's death, NB contacted BF and travelled to Western Australian to live with BF and her family.
6 In August 2016, BF made an application for her and her spouse MF to be appointed the guardians and administrators for NB pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act).
7 On 30 August 2016 the Tribunal referred the application to the Public Advocate for investigation and report: s 97(1)(b)(iii) of the GA Act.
8 The application was heard on 20 September 2016 and 15 December 2016. Both BF and LC and SC were represented by counsel. NB attended the hearing.
9 The decision was reserved.
Enduring powers of attorney
10 On 26 June 2016, NB made an enduring power of attorney in New South Wales appointing LC and SC jointly and severally as her attorneys (first EPA).
11 On 18 August 2016, NB purportedly revoked the first EPA.
12 On 15 August 2016, NB made an enduring power of attorney in New South Wales appointing BF as her sole attorney (second EPA).
Enduring powers of guardianship
13 On 26 June 2016, NB appointed LC and SC to be her enduring guardians pursuant to the relevant legislation in New South Wales (first EPG).
14 On 18 August 2016, NB purportedly revoked the first EPG.
15 On 15 August 2016, NB appointed BF as her enduring guardian pursuant to the relevant legislation in New South Wales (second EPG).
16 There is no application before the Tribunal for the recognition in Western Australia of the first and second EPA and the first and second EPG.
Relevant legislation
17 The primary concern of the Tribunal is the best interests of NB: s 4(2) of the GA Act.
18 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of NB as expressed, in whatever manner, at the time, or as gathered from NB's previous actions: s 4(7) of the GA Act.
19 NB is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
20 Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for NB unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
21 Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of NB unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
22 Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
23 If a finding of incapacity is made in respect to NB, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of NB can be met in a manner less restrictive of her freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
24 If the Tribunal decides that NB is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
25 As to the authority given to a guardian, if a limited order is sufficient to meet the needs of NB then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on NB: s 4(5) and s 4(6) of the GA Act.
The evidence concerning NB's capacity
26 The Tribunal has before it reports from:
• Dr N, General Practitioner dated 12 August 2016;
• Dr B, General Practitioner dated 15 August 2016, 13 September 2016 and 14 September 2016,
• Dr D, General practitioner dated 25 August 2016; and
• Dr M, Consultant Psychiatrist dated 9 September 2016 and 14 September 2016.
27 Dr N and Dr B are in New South Wales and Dr D and Dr M are in Western Australia.
28 Dr M gave oral evidence at the hearing on 15 December 2016.
29 Dr N assessed NB in August 2016 as being 'medically unfit to make any decision regarding her finances and medical management'.
30 Dr B advises that she only saw NB once and could not comment on her cognitive capacity and personal decision-making. Dr B conducted a Mini Mental State Examination (MMSE) on 15 August 2016. NB scored 23/30 and Dr B comments that NB's recall of the date and three objects was incorrect.
31 Dr D states that NB has some memory impairment and refers to the MMSE of 23/30.
32 Dr M assessed NB on 9 September 2016 in a twohour consultation which included the standard tests of a MMSE and a Montréal Cognitive Assessment. Dr M states that as a psychiatrist he has the more appropriate skills and experience than a general practitioner, to perform a capacity assessment to a suitable professional standard in respect of NB's circumstances.
33 Dr M assesses NB as suffering from dementia, likely caused by Alzheimer's disease. The dementia is a progressive condition and has resulted in NB having poor memory, judgment, abstraction and poor mathematical ability. He opines that NB is incapable in the personal and financial areas of decisionmaking and is no longer capable of making an enduring power of attorney or an enduring power of guardianship.
34 It is the further opinion of Dr M that NB's dementia likely emerged at least a year ago and more likely has progressed over the last four years as a chronic rather than acute onset of the disease. As a consequence it is the opinion of Dr M that it is highly unlikely that NB had the mental capacity to understand the implications of making the first EPA and first EPG on 26 June 2016.
NB's estate
35 In her application, BF describes NB's estate as consisting of a property in New South Wales valued at $1,050,000 (property), a motor vehicle, bank deposits of $187,917.56 and other bank funds of $13,923.90. NB is in receipt of the age pension and superannuation.
The case presented by BF
36 BF states that she is the only child of NB. She says that she was estranged from NB and her late father for the past four years until NB contacted her on 14 August 2016 seeking her help because she no longer trusted LC and SC.
37 BF states that she was not notified by LC and SC of the death of her father in July 2016.
38 BF says that she decided to travel to New South Wales to be with NB and arranged for NB to be medically assessed. Before a specialist assessment could be undertaken, however, BF states that she had to return to Western Australia for family reasons and at that point NB asked to come with her.
39 BF states that she phoned SC on 19 August 2016 in order to reach an agreement to have NB fully assessed by a psychogeriatrician and if that assessment determined that she required specialist care then she could be placed in an aged care facility which would best accommodate her needs. NB's property would need to be sold and BF says that it was her proposal to SC that the resulting funds be used to meet all of NB's accommodation needs with the balance to be kept in trust for NB for her use until she died. The further proposal was that if any funds were left upon the death of NB, then those funds could be gifted to the facility in which NB had resided.
40 BF states that SC declined the proposal and subsequently withdrew $109,000 from NB's bank account.
41 In her oral evidence, BF states that NB currently lives with her and her family (spouse and two daughters) in a large house on a five acre block of land. She says that NB is very comfortable in her living arrangements and is very involved with the family. She is given a special diet for a person with dementia and her moods are now more stable in that she is no longer agitated and does not have wandering behaviour. She does not take any prescription medication. BF states that NB has daily walks. She receives services in the home from home and community care and attends a day centre for people with dementia two days a week.
42 BF states that NB has said to her that she is happy to finally meet her grandchildren.
43 BF states that she is now NB's nominee for Centrelink purposes and that she has seen a financial advisor at Centrelink concerning NB's estate and her entitlement to income support. BF says that in the period since arriving in Western Australia NB has been able to save $8,000 from her income.
44 BF states that NB has told her that ideally she would want to live in her own house but she accepts that she needs 24 hour care and is happy to live with her family. NB wants to sell her property in New South Wales.
45 BF proposes that she and MF be appointed the guardians and administrators of NB.
The case presented by LC and SC
46 LC and SC state that their relationship with NB and Mr B began in about 2010. The friendship evolved over a period of six years. LC and SC had been part of a Bible study and prayer group organised through the local church community since about 2007. NB and Mr B joined the group in about 2009 or 2010.
47 LC and SC state that as the relationship with NB and Mr B developed they began to consider themselves as a family. They say that the failure of the relationship with BF seemed to consume NB and Mr B.
48 LC and SC state that Mr B was diagnosed with cancer in about April 2016. He was particularly concerned about who would look after NB if he died of the disease and if she lost capacity. It was the wish of Mr B, with which NB agreed, that LC and SC do this. It was around this time that the first EPA and the first EPG were made.
49 LC states that after the death of Mr B arrangements were put in place for NB to continue to live in her property but she also stayed with his family. NB's daily activities were largely centred on looking after her home and she was capable of caring for herself during the day.
50 SC states that NB was very comfortable with her and LC. She says that Mr B wanted LC and her to care for NB after his death. Activities were being arranged just prior to NB leaving for Western Australia and a specialist assessment was being organised to determine whether NB needed care in an aged care facility or could remain at home. SC says that if NB had been able to continue to live at home then she and LC would have visited her daily.
51 LC and SC say they are greatly concerned in the way in which BF removed NB from their care and in taking NB to Western Australia in circumstances where BF was aware of the first EPA and first EPG. They are also concerned that BF made an immediate attempt to sell NB's property.
52 SC states that NB has lost contact with her friends and acquaintances in New South Wales. She says she is not convinced that it is in NB's best interests to live with BF. SC contends that NB should be living in New South Wales because she is being missed by her friends and family.
53 SC states that she spoke with NB's granddaughter, JA, after JA attempted to locate her. She says that JA was aware of the funeral arrangements for Mr B.
54 SC states that she had telephone contact with BF on 19 August 2016 and in that conversation BF proposed that NB's property be sold and that they each have half of the net sale proceeds. SC says that she refused that proposal.
55 LC and SC state that they have not been permitted by BF to speak with NB and they are surprised at her apparent change of heart regarding their relationship.
56 In closing submissions counsel for LC and SC accepted that NB appears to be currently happy living in Western Australia, however there should be oversight of the care that she is being given and also in the event that she changes her mind and wants to return to New South Wales. It is proposed that LC and BF be appointed joint guardians but if this is not possible then the Public Advocate should be appointed.
57 As regards NB's estate, LC and SC state that the property is not currently on the market. They confirm that $109,000 was transferred from NB's bank account to a separate bank account in the name of 'LC on trust for NB' initially in their view to protect NB's money and assets. They say that in September 2016, on the advice of the legal representatives, about $91,000 was transferred from the account 'LC on trust for NB' to the legal firm's trust account where it remains.
58 It is the view of LC and SC that BF is not the appropriate person to manage NB's estate. They say that NB's estate in New South Wales is being managed by them in accordance with the first EPA including in the initial stages after NB had travelled to Western Australia, by lodging a caveat on her property.
59 Counsel for LC and SC submits that the Public Trustee should be appointed as the administrator of NB's estate.
The evidence of the granddaughter, JA
60 JA states that she has observed NB in her current environment as happy and healthy. She says that she is in full support of NB remaining in Western Australia which is what she wants.
61 JA says that although she had a problematic relationship with the late Mr B because he had made the decision not to have contact with her sisters, nonetheless she had some contact in the previous 12 months.
62 JA states that it was Mr B's wish that the family in Western Australian not attend his funeral although they had wanted to do so. They did not go out of respect for his wishes.
The Public Advocate
63 The representative of the Public Advocate states that she met with NB on 12 September 2016.
64 NB confirmed that she and the late Mr B became close to LC and SC. When Mr B became unwell SC took over his care and encouraged them to move into her home.
65 NB told the Public Advocate's representative that at a time after the death of Mr B she recalls SC attempting to give her a tablet which she did not want. She awoke early the next morning and decided to leave SC's home as she no longer felt safe. NB said that once BF came to see her she felt safe and asked that she travel with BF to Western Australia.
66 NB acknowledged to the Public Advocate's representative that she did not have contact with BF for some time however, 'family is family'.
67 NB accepts that she has problems with her memory and needs someone to assist her in her decisionmaking for which she has nominated BF.
68 In her oral evidence NB continues to express her concern about LC and SC making reference to Mr B, and that she does not want to return to live with them. She says that she wants to continue to live with BF and is planning to sell her property.
69 The Public Advocate's representative submits that the Public Advocate should be appointed guardian to make decisions about NB's accommodation given the ongoing conflictabout where it is best she should live but that otherwise BF should continue to make NB's medical decisions.
70 The Public Advocate supports the appointment of the Public Trustee as the administrator of NB's estate.
Discussion of the issues
71 I am satisfied on the evidence that NB suffers from dementia the cause of which is not yet determined but which is likely due to Alzheimer's disease.
72 I accept the evidence of Dr M in this regard. Dr M, as a specialist medical practitioner, undertook a detailed assessment of NB's cognition on 9 September 2016.
73 The effect of NB's dementia according to Dr M is that she has a significant impairment of her cognition and higher functioning manifesting in memory deficits, poor judgment and a compromised ability to abstract.
74 The assessment by Dr M is consistent with that of Dr N when on 12 August 2016 his opinion was that NB was 'medically unfit to make any decision regarding her finances and medical management'.
75 The assessment of Dr M is also consistent with the more recent observations of the coordinator of the dementia specific day respite centre NB attends and in whose report it is noted that NB presents as confused, disoriented and requiring direction and prompts for all tasks whilst at the centre.
76 It is not in dispute that NB has a compromised decision-making ability although there is some dispute as to the impact that her mental state had when she executed the first EPA and EPG in June 2016 and the second EPA and EPG in August 2016 (and by implication her revocation of the first EPA and EPG).
77 I accept the concerns of Dr M that NB may at that time have already reached a point where her ability to fully understand the relevant instruments could be seriously questioned.
78 I am satisfied and declare that NB is incapable of looking after her own health and safety, is in need of oversight and care in the interests of her own health and safety and by reason of her dementia (mental disability) is unable to make reasonable judgments about major personal decisions or in respect of her estate.
79 Prior to coming to Western Australia with BF in August 2016, the permanent residence of NB was in New South Wales. She lived in her own property with her spouse, Mr B until he died in July 2016.
80 Whilst in New South Wales NB became friends with SC and LC. The evidence suggests that prior to his death in July 2016, Mr B expressed concerns to LC and SC about who would look after NB should he succumb to his illness. It seems likely that given the estrangement of his daughter BF, Mr B looked to LC and SC to ensure NB's future wellbeing.
81 However, things moved rather quickly after the death of Mr B and for reasons that are not entirely clear, but which may be bound up with NB's emerging dementia, she became mistrustful of LC and SC (which she restated at the hearing), contacted BF and came to Western Australia where she has lived with BF and her family since August 2016.
82 There is much antagonism between BF and LC and SC. Both claim a parent/child relationship with NB, BF as the birth child, despite her estrangement until recently and LC and SC in the way they say their relationship with NB developed since about 2010.
83 BF describes the environment in which NB now lives as very comfortable and attentive. I have no reason to doubt that NB is receiving the appropriate care and support from BF and her family and it is no surprise that NB has responded well to it.
84 NB has consistently stated that she wishes to continue to live with BF. That she is happy with her current living arrangements is accepted by counsel for LC and SC (although SC is not convinced that it is best for NB to live with BF). It is proposed that BF and LC be appointed joint guardians so that there is oversight of BF's care of NB and also to allow for a situation where NB might change her mind and express a wish to return to New South Wales.
85 I do not accept that such an appointment could work in NB's best interests because of the conflicting relationship between BF and LC and SC. However, I do accept that LC and SC have a genuine concern for the wellbeing of NB given the pace at which events occurred after the death of Mr B.
86 It is likely, in my view, that a combination of NB's grief over the death of Mr B and her emerging dementia played a significant role in her thinking during this period of time.
87 In that regard, I am satisfied that some oversight of NB's current living arrangements is in order at least for a short period. That can best be achieved by the appointment of the Public Advocate as guardian regarding NB's future accommodation needs.
88 A reasonable period in which this appointment should be reviewed is 12 months. I am satisfied that given the progressive nature of NB's dementia, the question of whether NB lives in Western Australia or New South Wales will have been settled in that time.
89 Another matter of concern is the contact NB might have with LC and SC despite her current views on their relationship. It would be churlish to assume that no contact is possible given the relationship that NB established with LC and SC and others in New South Wales over a significant period of time. Whilst in practical terms this may be difficult, it should nonetheless be explored and considered. I will therefore appoint the Public Advocate as NB's guardian for this task.
90 Currently BF is lawfully entitled to make the treatment decisions for NB as the 'person responsible' under Part 9C of the GA Act. However, to provide certainty to that decisionmaking authority in the present circumstances, I will appoint BF as guardian for NB to continue to make her medical decisions given that there is no evidence to suggest that BF is not presently doing so in NB's best interests.
91 The status of the first EPG and the second EPG is that they were both made in New South Wales and they have not been recognised to be used in Western Australia pursuant to s 110O of the GA Act. In that respect the guardianship order made by the Tribunal prevails.
92 The estate of NB is currently complicated by the fact that she has assets in New South Wales and in Western Australia and there are conflicting EPA's (the first and second EPA) made in New South Wales, the operation of which can only be determined in that jurisdiction. In addition there is an issue of the caveat on NB's property and its current status.
93 Moreover, there is the evidence of Dr M expressing doubt over NB's capacity to execute and revoke the first EPA and to execute the second EPA and the ongoing antagonistic relationship between BF and LC and SC.
94 In combination these matters provide a significant barrier to the orderly realisation and ongoing management of NB's estate in a situation where the determination of her living arrangements has yet to be finally settled.
95 In these circumstances it seems to me that it is in NB's current best interests to appoint the Public Trustee as her plenary administrator for a period of 12 months.
96 I will give the Public Trustee as administrator the authority to make customary gifts from the estate of NB in the sum of $500 per annum.
Orders
The Tribunal declares that the represented person, [NB];
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b) is in need of an administrator of her estate,
(c) is incapable of looking after her own health and safety;
(d) is unable to make reasonable judgments in respect of matters relating to her person;
(e) is in need of oversight, care or control in the interests of her own health and safety; and
(f) is in need of a guardian,
and the Tribunal orders that:
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 Act.
2. The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
3. [BF] of [address withheld] is appointed limited guardian of the represented person with the following function:
(a) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person.
4. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia 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) To decide with whom the represented person is to live;
(c) To determine what contact, if any, the represented person should have with others and the extent of that contact;
5. 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.
6. The administration and guardianship orders are to be reviewed by 5 January 2018.
I certify that this and the preceding [96] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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