NS
[2024] WASAT 130
•29 NOVEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: NS [2024] WASAT 130
MEMBER: MS F CHILD, MEMBER
HEARD: 13 MAY 2024 AND 14 OCTOBER 2024
DELIVERED : 29 NOVEMBER 2024
PUBLISHED : 29 NOVEMBER 2024
FILE NO/S: GAA 1794 of 2024
NS
Proposed Represented Person
Catchwords:
Guardianship and administration - Application for the appointment of guardian and administrator - Proposed represented person with diagnosis of dementia - Whether proposed represented person lacking capacity to make reasonable judgments about her person and her estate - Whether a need for an administrator - Large complex estate jointly held with spouse - Allegations of lack of capacity and coercion in the execution of an enduring power of attorney - No persuasive evidence of coercion - Presumption of capacity to execute instrument - Enduring power of attorney a less restrictive alternative to meet financial decision-making needs - No need for administration order - Whether a need for a guardian to make decisions about medical treatment services accommodation and restrictive practices - Spouse demonstrating cognitive impairment - Need for a guardian - No less restrictive means to meet needs - Conflicting proposals for appointment as guardian - Suitability for appointment - Ongoing family conflict - Criteria to be considered - Compatibility of proposed appointee with appointed attorneys analogous to compatibility with an appointed administrator and a relevant consideration - Public Advocate appointed guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 43(1)(b), s 43(1)(c), s 44, s 44(2)(a), s 44(2)(b), s 64(1), s 68, s 87, s 102, s 104, s 104(1a), s 107(1)(a), s 107(1)(b), s 107(1)(c), s 108, s 109, s 110A, s 110B, s 110ZD, s 110ZD(2)(a), s 110ZD(3), s 110ZH(a)(iii), Sch 3
Result:
Public Advocate appointed limited guardian
Leave granted to withdraw application for the appointment of an administrator
Category: B
Representation:
Counsel:
| Proposed Represented Person | : | Mr H Chew |
Solicitors:
| Proposed Represented Person | : | Success Legal |
Case(s) referred to in decision(s):
Attorney-General v Parnther (1792) 29 ER 632
Banks v Goodfellow (1870) LR 5 QB 549
Crago v McIntyre [1976] 1 NSWLR 729
EW [2010] WASAT 91
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
Murphy v Doman [2003] NSWCA 249
Ricetti v Registrar of Titles [2000] WASC 98
Szodzda v Szodzda [2010] NSWCA 804
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These are the reasons for the decisions made on an application for the appointment of a guardian and administrator for NS brought under the Guardianship and Administration Act 1990 (WA) (GA Act).
In all reported decisions of the Tribunal in GA Act matters, any identifying information is removed to protect the privacy of NS.
Application and proceeding before the Tribunal
An application seeking the appointment of a guardian and an administrator of NS's estate was made to the Tribunal on 10 April 2024 by NS's daughter-in-law, C and her son R (the applicants). The application was made when NS was a patient in hospital. NS was reported by the hospital treating team as lacking capacity to make judgments about her health care and to participate in discharge planning due to a dementia diagnosis.
As NS was in hospital, the application was listed urgently and was first heard on 13 May 2024. The hearing was attended by the applicants, Y, the husband of NS, their daughter S, and her husband J, daughter D and her husband P. NS did not attend but was reported to be at home with a carer. NS had been discharged from hospital two days after the application had been lodged.
Prior to the first hearing the applicants sought leave to withdraw their application for the appointment of an administrator of NS's estate as they said NS had made an enduring power of attorney in 2017 (2017 EPA) which appointed them as her joint attorneys, and they could operate under that power to manage her financial affairs.
The hospital social worker indicated in her report to the Tribunal that NS's daughter S had supported the applications made to the Tribunal. However, in the submissions filed by S she proposed her own appointment as guardian and administrator. I did not grant leave to the applicants to withdraw the application for the appointment of an administrator prior to the hearing.
In the first hearing there was a challenge to the medical evidence by the son-in-law of NS, J which raised the question of whether NS lacked capacity in the relevant spheres of decision-making. Allegations were also made by S, J and D that NS was not capable of executing the 2017 EPA and J asserted that it had been executed by NS under coercion. The conflict in the family was manifest in the hearing.
Following hearing from the parties, the applications for both the guardianship and administration orders were adjourned for investigation by the Office of the Public Advocate (Public Advocate) and orders made to that effect.
As NS had not attended the hearing, the referral for investigation to the Public Advocate included independent investigation of NS's views and wishes.
During the adjournment period S and J sought the issue of summonses to the Western Australian Police Force for incident reports from 2017 and to the St John Ambulance service following the transport of NS to hospital in January 2024. I declined to order that summonses issue. I did not consider the material sought to be produced by summons was necessary to determine the applications before me.
At the second hearing on 14 October 2024, I heard from NS who attended part of the second hearing by telephone from her home supported by a carer. I also heard further from the parties, counsel for the applicants[1] and a representative of the Public Advocate (investigator) following the investigation conducted by that office.
[1] The applicants were legally represented at the second hearing.
At the conclusion of the second hearing I reserved the decision.
The following comprises the reasons for the decisions made.
Background
NS is 84-year-old woman with a diagnosis of dementia associated with probable Alzheimer's disease which was formally diagnosed in July 2024.
NS is married to Y and they have daughters, S and D and a son R. In the material filed NS and Y are described as self-funded retirees; they live in their own home and have an extensive estate which is largely jointly owned.
In a submission filed with the Tribunal on 6 May 2024 their daughter, S states that Y and NS have been married for over 60 years and up until January 2024 have been extremely independent. According to S '[t]hey have never shared their personal information to any great degree'.[2]
[2] Submission of S filed 6 May 2024.
NS was admitted to hospital at the prompting of S in January 2024. S says that she became concerned about NS in late January 2024 due to her presentation.[3]
[3] Submission of S filed 6 May 2024 and hospital discharge summary.
S says she believed Y was mismanaging NS's medications including hoarding some medications and giving NS excessive amounts of over‑the-counter pain medications. S said that Y appeared not to understand NS's condition as he had dismissed her concerns. S made efforts to have NS admitted to hospital by ambulance but says the paramedics would not transport NS as she and Y would not consent. The following day S was able to convince NS and Y that NS be taken to hospital by ambulance.
The hospital discharge summary notes record that NS was assessed as having functional decline with poor self-care, incontinence and disorientation and was admitted for investigations.[4] NS was discharged on 6 February 2024. Y is recorded as being educated about NS's care needs prior to discharge by the hospital to her home. S reports that Y said he could not remember what was said to him when she asked him about this. S says she opposed the discharge of NS.
[4] Hospital discharge summary dated 6 February 2024.
NS was again admitted to hospital on 16 March 2024. S says that this again followed her intervention reporting to hospital staff that Y was not managing NS's care at home including her medications.[5] It was during this admission NS was diagnosed with a rectal prolapse. This was detected by nursing staff during the admission and thought to be a long-standing condition. Initially the prolapse was determined by hospital surgical staff to be treated conservatively with pain relief rather than surgically due to the risk of delirium associated with a general anaesthetic. However, the records show that repair surgery was performed on 27 April 2024. S argues that this only occurred due to her ongoing advocacy during the hospital admission that NS was in severe pain and the prolapse should be repaired.
[5] Hospital discharge summary dated 10 May 2024.
The reports of the doctor and the social worker indicate that NS was assessed by the treating team to lack decision-making capacity to make judgments about her care needs and Y also had likely cognitive decline.[6]
[6] Hospital discharge summary and report of Dr C.
During the second admission family members were advised that NS required 24-hour care as Y was thought by the treating team to be unable to manage NS's care at home.
NS was discharged home by the hospital two days after the application was filed and before the hearing was convened on the basis that 24‑hour nursing care would be provided in her home. S reports she was able to arrange that care.
Legislation and principles to be observed
To appoint an administrator of her estate I must be satisfied that NS is unable by reason of a mental disability to make reasonable judgments about all or any part of her estate and that she is in need of an administrator of her estate.[7]
[7] GA Act, s 64(1).
To appoint a guardian for NS I must be satisfied that she is incapable of looking after her own health and safety, unable to make reasonable judgments about her person, or is in need of oversight care or control in the interests of her own health and safety and is in need of a guardian.[8]
[8] GA Act, s 43(1)(b) and s 43(1)(c).
If satisfied that NS is a person for whom orders can and should be made, I must then consider who should be appointed[9] and other matters such as the scope of the authority and the duration of any orders made.
[9] GA Act, s 68 and s 44.
These provisions are subject to principles which the Tribunal must observe in all proceedings brought under the GA Act, set out in s 4 of the GA Act.
The principles provide that the primary concern of the Tribunal is the best interests of NS.[10]
[10] GA Act, s 4(2).
The principles also provide that NS 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.[11]
[11] GA Act, s 4(3).
The principles also say that orders should not be made unless they are needed; if the needs of NS can be met by less restrictive means, then orders should not be made for her.[12] If an order is made it should be in the least restrictive terms possible.[13] A plenary guardian should not be appointed if a limited order will meet the needs of NS.[14]
[12] GA Act, s 4(4).
[13] GA Act, s 4(6).
[14] GA Act, s 4(5).
Finally, the principles require that in considering any matter relating to NS, the Tribunal should seek to ascertain NS's wishes as expressed at the time or gathered from her previous actions.[15] If satisfied that NS is a person for whom orders may be made, I must then determine who should be appointed and the scope and duration of any orders made.
[15] GA Act, s 4(7).
Evidence and material before the Tribunal
In addition to hearing from the parties in the hearings, material was filed with the Tribunal including the following:
•The application for guardianship and administration orders filed 10 April 2024 by C and R. They sought to withdraw the application for the appointment of an administrator.
•Discharge summary from Hospital for admission 25 January to 6 February 2024 following NS's admission by ambulance for what was described as 'functional decline' one month increasing confusion with 'good baseline' reported by husband. NS is reported as disorientated and assessed as a falls risk. Several investigations were conducted and reported. The discharge summary notes 'requires walking aid (Stick/Frame) and carer. Husband believes he will be able to provide care. Training provided before discharge'.[16]
[16] S asserts that Y attempted to discharge NH from hospital against medical advice, but both the discharge summaries refer to the hospital discharging and not to a discharge against medical advice.
•Discharge summary for NS's hospital admission 16 March 2024 to 10 May 2024: 'BIBA [brought in by ambulance] for worsening confusion and functional decline since previous admission'. History difficult to obtain as [NS] was confused' … '[husband] an 'unreliable historian with a likely degree of cognitive impairment himself' ... 'Collateral history from daughter gives impression of [patient] not managing at home with husband as primary carer. Husband is unable to manage domestic tasks, or medication administration … Evidence of cognitive impairment … little insight into medical condition and no decision-making capacity as agreed by allied health and medical team'. 'Nursing staff noticed [rectal] prolapse … Re‑discussed with surgeons multiple times throughout admission, initially [patient] was for conservative management given risk of worsening delirium post GA [general anaesthetic] … pain and discomfort worsening throughout admission … Prolapse repaired … 27/04 [2024] … abdominal pain, bladder scan identified urinary retention … IDC [in-dwelling catheter] inserted. Family meeting … advised that [patient] would need residential facility. Social work assisting with organizing 'Nurse Next Door' care for [NS] so she can remain living at home with husband as per their wishes. [Patient] planned for [discharge] home with 24-hour nursing care.
•A medical guide from Dr A, a hospital doctor dated 22 April 2022 states that NS is unable to retain, or problem solve information in order to make appropriate decisions for herself'. The report notes 'Diagnosis formally made by Dr RS [physician] CT Brain shows global atrophy supporting diagnosis. The condition is reported as a progressive one and the opinion given is that NS is incapable in all spheres of decision making both financial and personal spheres and is incapable of making an EPA or an enduring power of guardianship (EPG) or an advance health directive.
•A report from the hospital social worker RC dated 24 April 2024 which reports that '[NS] has a good relationship with her husband [Y] [about which the] treating team have concerns … [as he] has likely cognitive decline, as he presents as confused at times and displays poor recall especially in regard to health literacy'. NS reports a good relationship with her son and daughter-in-law and her daughter S but to be estranged from and have no contact with D. The social worker states:
… [i]nitially there appeared to be some family conflict in regard to an Enduring Power of Attorney (EPA) that was made by [NS] in 2017 appointing son [R] & dtr-in-law, [C] and not dtr [S]. However, [S] reports she is now accepting of this, initially she did not know that the EPA was made/or in place. She reported to Social Worker she is now in support of [R] and [C']s application to SAT re Guardianship.
•The social worker reports that '[NS] requires residential care due to progression of dementia, prolapse, high falls risk and requiring assistance with activities of daily living'.
•She states that the '[t]reating medical team have deemed [NS] as no longer having decision making capacity and that they are concerned about [Y's] cognition declining and is listed as [next of kin]. Treating team feel that someone else needs to be formally appointed as Guardian to assist with future medical care and discharge planning decisions. Treating team have recommended [NS] requires residential aged care. [NS] is not accepting of residential aged care and nor is [Y] … family are looking into options regarding private services at home … and also strongly considering residential care via transition care'.
•A letter dated 1 July 2024 addressed to Dr K (general practitioner) from Dr C, a physician following a review of NS on that date.[17] The letter records the diagnoses of NS with 'probable Alzheimer's disease' and multiple other health problems including rectal prolapse repair and notes NS lacks insight and capacity. Dr C refers to the family conflict and proceeding before the Tribunal. Noting 'this couple do have plenty of money to pay for 24-hour care for some considerable period of time even up to five years'. He does note however ' ... the home is not very suitable with 18 stairs, which [NS] goes up and down to bed. She has dementia with some behavioural problems with lacking insight, not wanting carers in the house and some sundowning behaviour. She hallucinates and has thrown her phone at a carer and does sometimes get a bit aggressive'. … 'She walks unsteadily with a left total knee replacement, which is a bit swollen and has some pain in that. She is a high falls risk particularly going up and down stairs. She thinks she lives in [a different suburb to NS's home], that she is 74 years old and that she walks 8 to 10 km per day, still drives and does all the cooking. Today she was pleasant with no behavioural issues, walked unsteadily on her feet and exhibited signs of cognitive impairment … She came through the anaesthetic for rectal prolapse repair quite well, but I am not sure she came through joint replacement surgery or revision as well'.
•Dr C concludes '[NS] seems clearly to have a dementia with an MMSE of 15 … She is eligible for a trial of cholinesterase inhibitors [donepezil for her dementia]'. Dr C then refers to possible side effects of that medication. He also notes that NS may benefit from having 'something like risperidone at about 3 o'clock in the afternoon at very low dose of 0.25 mg if the behavioural issues become difficult for the carers and they are considering withdrawing if they feel unsafe'. Again, the risk of side effects of increasing falls risk is raised. Dr C notes that 'it is difficult to prescribe anything because [NS] herself says she is quite happy as she does not want any new medications and does not think that she has a memory problem clearly lacking insight'. He states that a guardian is needed to consent before the medications could be used as their use would be against NS's will.
•A completed medical guide from Dr K, NS's general practitioner, dated 28 August 2024 was provided. Dr K notes NS was 'formally diagnosed with Alzheimer's on 1 July 2024'. The condition is a progressive one noting Mini Mental State Examination (MMSE) is reported as 15/30. Dr K's opinion is that NS is incapable in all spheres of decision-making both financial and personal and that she is now incapable of giving an EPA or EPG or of making an advance health directive;
•An Aged Care Assessment (ACAT) completed at NS's home on 17 July 2024 records that NS is approved for permanent residential care, residential respite care and a home care package level 4. The assessment occurred in NS's home with S and Y in attendance. The report notes that NS has privately funded care but that this is not sustainable. Primary contact is recorded as S.
•A completed medical guide from Dr L, geriatrician dated 18 September 2024 in which she states that NS has '[d]ementia of the Alzheimer's type; MMSE 15/30 in July 2024'. Dr L's opinion is the NS is incapable in all spheres of decision-making including personal and financial matters, execution of an EPA or EPG or advanced health directive, and of complying with her obligation to vote.
•In correspondence from Dr L to an orthopaedic surgeon, Dr W dated 1 September 2024 she refers to the upcoming knee operation and the need for family members to be on board with regards to it. NS is noted to be 'making a choice … but she lacks capacity and insight'. Concern is expressed about the potential of postoperative delirium and the need for a guard. NS is reported to be quite aggressive at times both verbally and physically which was in keeping with her dementia and lack of insight. Social issues are identified in that NS's daughter and son are not in direct contact with each other. The go between is understood to be Y and a nurse carer.
•A copy of an enduring power-of-attorney dated 17 May 2017 (2017 EPA) by which NS appointed her son R and daughter‑in‑law, C, as her joint enduring attorneys. (Y reportedly made an EPA on the same date in the same terms.)
•A statement of assets and liabilities which indicates NS's assets and interests include properties, bank accounts and interests in a family trust, self-managed superannuation fund (SMSF) all jointly held with Y.
•Submissions filed by S on 6 May 2024 proposing her appointment as guardian and administrator. Later diary entries created by her from 21 January 2024 to 28 September 2024 report her role in arranging services and medical care for NS and explaining the admission of NS to hospital by ambulance. The detailed submissions set out S's role in facilitating doctor's appointments for NS, the ACAT referral, and specialist referrals for management of NS's glaucoma. She also reports on her advocacy while NS was in hospital that the rectal prolapse be repaired.
•Submissions from D dated 12 July 2024 including correspondence between solicitors acting for Y and NS and solicitors acting for D in 2017. D's submissions refer to allegations made by Y and NS that D (and her husband P) had attended Y and NS's homes (residence and holiday home) over a period and had removed several items without permission. D says that Y and NS had confronted her but would not accept her denials and had paid private investigators to follow her and had installed cameras at their home. D says the allegations made by her parents were all investigated by the police and no action was taken. A letter dated 5 April 2017 from solicitors for Y and NS to D states that D should not attend their home without joint written permission from both parents. Solicitors for D responded on 18 April 2017 again denying the allegations. Despite her denials D says that she was ostracised by her parents for over 10 years. She says an attempt at reconciliation about 3 years ago was not successful. D says that she recently visited NS in hospital and NS appeared not remember anything about the allegations being made and Y denied them. D says that Y's allegations against her continued after the hospital visit and although she would like to continue to visit NS, she believes that this will be unlikely.
[17] The copy of Dr C's report of the assessment on 1 July 2024 was submitted by S on 1 October 2024 but was missing the first page. This was later provided by Dr C's rooms. Later reports were submitted but as these had not been accessed by the parties, I have not considered them for the purposes of this decision.
Report of the Public Advocate's investigator
The report of the investigator dated 9 October 2024 followed referral by the Tribunal for investigation by orders dated 13 May 2024. The investigation included an interview with NS and Y at their home and with all other family members. The investigator reports that NS was very confused, asking multiple times what was going on and why she was being asked questions. In response to an explanation of the upcoming hearing, NS responded that she 'doesn't need any help because she has [Y]'. The investigator reports that NS refused to speak unless Y was with her but even when he was present, she would not engage saying 'all of this is unnecessary'.
The investigator reports that R and C propose that they continue operating under the 2017 EPA which C says she provided to the hospital during NS's admission. C says she signed a consent for the prolapse repair and believed that S may have signed the consent for NS's later knee surgery but was not sure.
C says she became aware of the extent of issues with NS as S had explained what was going on during the second hospitalisation of NS. It was around this time the attorneys had acted under the 2017 EPA for the first time.
The investigator reports that C and R use a software package to record expenditure made and to make it easier to communicate with NS and Y's accountant. They reportedly have online banking access (to the joint accounts of NS and Y) and record time and date entries of transactions. C said she works in the business doing payroll, paying invoices, submitting BAS, and has a working relationship with the accountant.
C said that as NS and Y's estates are combined, they have tried to be respectful and inclusive of Y with the actions taken. If the 2017 EPA was to be revoked C and R propose they be appointed administrators but if not found suitable they propose the Public Trustee be appointed due to the complexity of the NS and Y's estate.
C and R propose that they be appointed as guardians of NS. C was reported to have concerns that S has not communicated with them about previous decisions she has made and if S was formally appointed guardian C said that S would not involve or communicate with her or with R.
S and J said they believed that NS's capacity had been declining for some time, but it was not until they visited in January 2024, they realised how grave the situation was and how little Y acknowledged the seriousness of it. S proposes herself as guardian for NS. She asserts that R and C's busy lifestyles are a barrier to their appointment. S says that C does not explain things properly and the applicants are not open. S advised the investigator that it would be in NS's best interests to have a family member as her guardian and that S considers R as an alternative to herself.
The investigator's report indicated that overall J and S considered that the 2017 EPA remaining in place was in NS's best interests. However, this view was not sustained as S in her final oral submissions at the second hearing again proposed that she be appointed both guardian and administrator.[18]
[18] ts 66, 14 October 2024.
Y is reported not to believe that NS has a dementia diagnosis and says that he cannot fault her memories. He described to the investigator that '[NS] [was] capable, she is able to cook and clean and that she has got her wits about her'. He does not support nurses being at their home, understands that he is paying for the service but says he has no say as C is managing the bills. He was reported as critical of the doctors; saying that the hospital did nothing for NS and that he did not agree with them.
Y explained to the investigator that S was their eldest child and worked as a hairdresser in aged care facilities. Y is reported to have said she has 'grown up lately [and] never gave the impression [that] she cared previously but [is] now involved'. Y said that C is better at finances and that S was never capable of managing finances. Y believed that S and C would be good for making guardianship decisions and believes they would work together.
D was said to have been unsure that NS knew who she was when she visited her in hospital. D supports S as NS's guardian and believes she could communicate effectively with everyone. D said that C and R have busy work schedules and would find it difficult to undertake the role. She asserted that they would focus on the costs of treatment and would not get the best care or do what was right for NS.
Is the presumption displaced and is NS a person for whom guardianship and administration orders may be made?
NS has a diagnosis of dementia and likely Alzheimer's disease which was made in July 2024. Before that, during her hospital admissions in January and March 2024 cognitive impairment was identified. The consistent professional evidence is that NS has no insight into her diagnosis, her memory impairment, or her medical and care needs.[19]
[19] Dr C's report dated 1 July 2024.
According to the investigator's report Y does not accept that NS has a dementia diagnosis. His comments in both hearings indicate that this remains his view.[20]
[20] ts 15 and 17, 13 May 2024; ts 61, 14 October 2024.
In the first hearing J argued that NS did not have completely diminished capacity but conceded that NS could not independently manage her own finances.[21] He later described NS as a 'functioning, normal adult'.[22] J said NS was able to function on a certain level and make decisions and had the ability to communicate and advocate decisions. He said that he and S were not disputing the medical opinion but were disputing the level of cognitive decline.[23]
[21] ts 6, 13 May 2024.
[22] ts 7, 13 May 2024.
[23] ts 7, 13 May 2024.
As reported by the investigator, by the time of the second hearing all family members (other than Y and NS) accept NS's diagnosis of dementia and the opinions of the health professionals as to the consequences for her functioning and capacity.
Dr C and Dr L who are geriatricians and have the relevant expertise to assess NS have given their opinions that NS has a significant cognitive impairment associated with a dementia diagnosis. Both doctors refer to likely diagnoses of Alzheimer's disease. Dr L describes moderately advanced dementia and gives the opinion that NS is incapable in all spheres of decision-making even in simple financial matters.
Dr C refers to NS's falls risk, lack of insight and impaired memory with behavioural problems and sundowning behaviour. These specialist assessments and reports are consistent with the earlier report of Dr A and the reported presentation of NS recorded in the hospital discharge summaries. I accept this evidence.
Having regard to all the medical and allied health evidence I am satisfied and I find that the presumption that NS has capacity to make reasonable judgments about her person and her estate is displaced.
I am satisfied that NS has a mental disability being the dementia with which she is diagnosed and has associated memory impairments and I am satisfied that she is unable by reason of that mental disability to make reasonable judgments about any or all of her estate and is therefore a person for whom an administrator may be appointed.
I am also satisfied on the medical and other professional evidence that NS is dependent on others for management of her medical care, and administration of her medications. She lacks insight into her dependence on others, her health problems, her level of disability, her falls risk and requires supervision and care because of the risks to her without that supervision.
I am satisfied and I find that NS is incapable of looking after her own health and safety, unable to make reasonable judgments about her person, and is in need of oversight care and control in the interests of her own health and safety and potentially for the protection of others noting the reference to aggressive behaviours by Dr C and Dr L. I am satisfied and I find that NS is a person for whom a guardianship order may be made.
Is NS in need of guardianship and administration orders?
Even when a person the subject of proceedings under the GA Act lacks capacity in the relevant spheres of decision-making, the principles of the GA Act require that the person be in need of a guardian and or an administrator of their estate before those orders can be made. The principles provide that if the person's needs can be met less restrictively, orders should not be made.[24]
Wishes of NS
[24] GA Act, s 4(4).
As noted, the principles under the GA Act require that the wishes of NS should be ascertained as far as possible. In ascertaining NS's wishes the Tribunal can have regard to her wishes expressed at the time or gathered from her previous actions.[25]
[25] GA Act, s 4(7).
C says that they had spoken to NS 'early on' and NS was quite happy for her and R to take on the role of guardian and that as they are her attorneys this would be a lot easier.[26]
[26] ts 11, 13 May 2024.
S said when she questioned Y about the 2017 EPA when NS was in hospital and that Y had said that C and R were the attorneys. S reports that when she heard this NS said she wished that S would do it, as she was her daughter and not her daughter-in-law.[27]
[27] ts 25, 13 May 2024.
The investigator reports that when interviewed at her home NS denied she needed any help and presented as confused.[28].
[28] Investigators report, page 3.
In the circumstances of conflicting evidence about this issue and some confusion about the roles to be played, to which I will return later in these reasons, I am not satisfied that the current wishes of NS as to any substitute decision-maker have been identified with any certainty.
I accept the investigator's submission that the 2017 EPA may be considered an expression of NS's wishes regarding the management of her financial affairs made at that time. Notably, NS did not change her EPA in the intervening years.
NS's wishes are not determinative of the matter and my primary concern must be the best interests of NS.[29]
Administration
The 2017 EPA
[29] GA Act, s 4(7) and s 4(2).
As is submitted by the investigator, an EPA may be regarded as a less restrictive alternative to the making of an administration order.
The applicants propose that they continue to act under the 2017 EPA.
The 2017 EPA made by NS was drawn by solicitors and witnessed by a solicitor and a legal secretary from the same firm. On its face, the 2017 EPA is executed in compliance with the requirements of the GA Act.[30] It is in the standard form and styled to be in effect from execution.[31]
[30] GA Act, s 104 as to the acceptance and witness endorsements.
[31] The election at cl 4 of the 2017 EPA is that the EPA is in effect notwithstanding subsequent legal incapacity of the donor.
R says the 2017 EPA was executed when he was working in the family business as an employee for 17 years.[32]
[32] ts 17, 13 May 2024.
S says she was unaware of the 2017 EPA and learnt of it only when NS was hospitalised in March 2024. It is apparent that S learning of the 2017 EPA in favour of R and C (and the later discovery by S and J of other reported transactions by NS and Y around that time)[33] has caused escalation of what is understood to be an existing family conflict with allegations of lack of openness, secrecy and lying.[34]
[33] And the reported making of wills and the transfer of land to R in 2017. R says he paid for this land: ts 54, 14 October 2024.
[34] ts 47, 14 October 2024.
J and S say that when visiting NS at the hospital on 17 March 2024 that R had said he did not know what he had signed and did not want to act under the 2017 EPA. According to S's submissions the 2017 EPA was further discussed at a family meeting on 4 April 2024 at the hospital when S was asked if she would act as joint guardian with C. S says she declined this saying that she was well able to fill that position and act as attorney for NS. R is reported by S to say 'let Y think about it'.
Following a family meeting on 7 April 2024 at Y and NS's home S reports that C and R said they were prepared to act under the 2017 EPA as it was Y's wish. C and R confirmed this in the first hearing.[35] When R's initial statements of 17 March 2024 were raised at the first hearing J spoke directly to R saying he was 'lying' about what was said.[36]
[35] ts 33, 13 May 2024.
[36] ts 34, 13 May 2024.
I did not accept this to be the case. In fact R's responses in the hearing were incomplete as when he spoke he was immediately challenged by J.[37] is possible that the recollections of people may vary especially at times of stress or confrontation. This may be illustrated when the social worker reported that S supported the application made by C and R to the Tribunal but S says she has a different recollection.[38] In any event S was aware from April 2024 that R and C were prepared to act under the 2017 EPA.
[37] ts33,13 May 2024
[38] ts 19, 13 May 2024.
At the first hearing S proposed that she be included as an attorney in the 2107 EPA. S argued that she should be 'equal shares'[39] with the attorneys (by which it is understood that she proposed she be appointed under the EPA). S said she could work with the applicants on that basis as she would then be aware of NS's financial affairs. In her final submission at the second hearing, S submitted that she be appointed sole administrator and guardian. D supported this saying that the applicants could then act for Y under his EPA.
[39] ts 27, 13 May 2024.
S asserts that NS wants S to oversee her matters which Y knows but he will not let NS have the final say. P argues that R and C agreeing to act under the 2017 EPA because it is Y's wish suggests that it is not NS's choice but Y's.
In the first hearing J said that the 2017 EPA was made by NS under coercion.[40] The explanation given for this is that Y is said to be the dominant partner in their marriage and the family with patriarchal views about gender roles and the status of women.[41]
[40] ts 31, 13 May 2024.
[41] ts33, 13 May 2024
In submissions filed following the first hearing S asserts that at the time of the execution of the 2017 EPA that Y and NS already had diminished capacity affecting their decision-making process. This related to Y and NS's allegations about and subsequent treatment of D from around 2017.
J and S say that they have maintained a relationship with NS and Y over this period. J explaining that '[f]or the last 16 or 17 years every birthday, every Mother's Day, every Father's Day, every Christmas Day every New Year or any occasions [Y] and [NS] spent them at our place'.
When asked in the second hearing about their contentions that Y and NS had diminished capacity in 2017 and what if anything was done about these concerns, S responded only that she had her suspicions.[42] Later in the hearing J said that Y and NS 'were living [at] home, appearing to survive and make decisions. They were living a normal life in that regard.[43]
[42] ts 29, 14 October 2024.
[43] ts 29, 14 October 2024.
S is critical of the role C and R have played as the attorneys saying they did not take a conscientious role in NS's life or health issues.[44] In the first hearing S said that Y had lost his boat in September 2023 and did not recover any money as he was late in paying his insurance. S accused C and R of not doing their job (as attorneys).[45] Although an EPA made by Y was not filed, if it is in the same terms as the 2017 EPA, it was in force from execution and so the attorneys could act under it. However, it does appear that all the family appeared to consider that NS and Y retained their independence up until January 2024 when NS was hospitalised. When the donor of an EPA retains, or appears to retain capacity, an EPA which is effective on execution operates as a parallel authority with both the donor and attorney able to act.
[44] S's submission filed 6 May 2024.
[45] ts 37, 13 May 2024.
Later in her submissions S asserts that she does not believe that R is capable of doing the job (of attorney) and that C will end up doing it all.
D mirrors these views and asserts that she suspects that NS's mental decline commenced 10 years ago as D says there could be no other explanation for the 'ludicrous' allegations made against her which have no foundation. D argues that S should be appointed guardian and administrator as R works full-time running the family business and is not able to look after NS and Y and take them to appointments.
D also asserts that R has 'learning problems' and will not be able to look after NS's financial affairs. D states that C assists in the family business and will not have time and has never assisted with hospital visits prior to the application being filed with the Tribunal.
Turning first to the role of an attorney appointed under an EPA. There appears to be some confusion among family members regarding the scope of that role.[46]
[46] This confusion may have extended to the health professionals at the hospital if they sought and accepted the consent for the surgical procedure for NS from C as NS's attorney. It is possible however that the consent was sought from C pursuant to s 110ZD of the GA Act.
In their submissions and criticisms of R and C as the attorneys for NS both S and D appear to conflate the role of an attorney with that of a carer and a guardian. A carer may undertake such tasks such as taking a patient to appointments or providing personal care. A guardian makes treatment and other personal decisions such as engaging carers.
Depending on its terms an attorney appointed under an EPA may undertake anything on the donor's behalf that she could lawfully do by an attorney.[47] Although the 2017 EPA is unrestricted in its terms, this does not in Western Australia include personal decision-making. An attorney's role largely involves financial and legal decision-making; such as paying accounts, executing contracts selling or buying property or making investment decisions on behalf of the donor.
[47] Clause 2 of the 2017 EPA and GA Act, Sch 3.
The roles of carer, guardian and attorney are all distinct roles although at times they may be performed by the same person.
In relation to the contention that NS was incapable of making an EPA in 2017 there is no independent medical or psychiatric evidence to support this. In S's submission, Y and NS were described by S and J as 'independent' prior to January 2024.
This evidence and J's description of NS as a functioning, normal adult, at the time of the first hearing, (that is in May 2024), is in my assessment inconsistent with their assertion that NS had lost or diminished capacity in 2017. No issues appear to have been raised by them about NS's cognition or mental health prior to 2024, or in the intervening period between 2017 and 2024 when S and J say they were in regular contact with Y and NS.
The actions of her parents have clearly caused D enormous distress and have created in her a strong sense of injustice and resentment towards Y and NS. D is also critical of R and C saying they have aligned themselves with NS and Y and she does not trust R and C because of this. This allegation was denied by C saying that until D told them about the allegations made about her at the time that they were unaware of them. C said she told D that she was sorry it was happening to her, but they just wanted to stay out of it.[48]
[48] ts 57, 14 October 2024.
Even if accepting that the allegations made by Y and NS about D are untrue and unreasonable, this does not lead to the conclusion that NS lacked capacity to make the 2017 EPA. Even where persons have a diagnosed and documented mental illness (potentially with beliefs that are not based in reality about some aspect of their lives) they may retain capacity in other spheres of decision making.[49]
[49] See for example Crago v McIntyre [1976] 1 NSWLR 729 per Holland J referring to Banks v Goodfellow (1870) LR 5 QB 549: 'a mind may be rendered partially unsound by the existence of delusions or persecution mania or other aberration, and yet be capable of the management and disposition of property'.
In this case there is no medical or psychiatric evidence advanced regarding NS's capacity to execute an EPA in 2017.
There is a presumption in the GA Act[50] and in the general law[51] that people are capable of undertaking certain acts until proven otherwise. The capacity to execute an instrument such as an EPA is the capacity to understand the legal effect of the transaction when it is explained.[52]
[50] GA Act s 4(3).
[51] The presumption of sanity derived from observations in Attorney-General v Parnther (1792) 29 ER 632 'which means in modern terms that there is a presumption that a person of full age is capable of managing his or her affairs' per Handley JA in Murphy v Doman [2003] NSWCA 249 at [36] cited in Szodzda v Szodzda [2010] NSWCA 804 at [21].
[52] Gibbons v Wright[1954] HCA 17; (1954) 91 CLR 423.
Despite the reservations that D expresses about the role of solicitors in giving explanations when documents are being executed by their clients,[53] I consider that I can have regard to the fact that the 2017 EPA was prepared and witnessed by a solicitor. There is a professional obligation on any solicitor to be satisfied that a client can capably give instructions.
[53] D works as a legal secretary and spoke from her experience working in a law firm.
In respect of the allegation made by J that the 2017 EPA was made by NS under coercion I am not satisfied the submissions advanced by S, J and D support this contention. To coerce is defined as 'to compel by forcible action.'[54] The assertion made is that NS made the 2017 EPA in line with Y's wishes because Y is the dominant partner in their marriage. Even if this is so this would not on its own amount to coercion in my view. Again, the solicitors who drew and witnessed the 2017 EPA would have been under a professional obligation to satisfy themselves that NS was able to give them instructions and was, at a minimum, not acting under coercion. When asked in the second hearing whether Y makes the decisions and she goes along with them, NS said this was not true. NS said '[n]o he doesn't make all of them. We discuss things together and decide together'.[55]
[54] Macquarie Dictionary Online.
[55] ts 21, 14 October 2024.
As they have no direct knowledge of the circumstances surrounding the execution of the 2017 EPA and were unaware of its existence until NS's hospital admission in 2024 all the assertions made by S, J D and P about the execution of the 2017 EPA are speculative.
The 2017 EPA itself is regularly executed and is not inherently illogical in the choice of NS's son (who was employed in the family business) and her daughter-in-law (who assists with the administration of the business) as her joint attorneys. This choice was made at the time over their two daughters, one of whom was estranged from her parents and the other with whom they had an ongoing relationship but on her own evidence with whom they did not share financial information.
Although S asserts that NS has repeatedly expressed the wish that S manage her affairs since January 2024, having regard to the medical evidence I am satisfied that NS is not of full legal capacity[56] as required and therefore cannot now give a new EPA in favour of S.
[56] As required by s 104(1a) of the GA Act.
Even if there was evidence to support the assertions made as to NS's lack of capacity (or coercion) in the execution of the 2017 EPA the Tribunal has no jurisdiction to declare it invalid. If I shared the suspicions raised, the only recourse would be to determine that NS was in need of an administrator of her estate and to make that appointment accordingly. For reasons that follow I am not satisfied that this is the case.
I accept submission of counsel for the applicants that the objections of S and D to the 2017 EPA cannot be substantiated. I am satisfied that the objections that have been raised about the operation of the 2017 EPA are largely sourced in the family conflict described.
The applicants say that they had not operated under the 2017 EPA until May 2024 when NS was hospitalised. When S made them aware of her view as to NS's impaired functioning they say they began to operate under it.
In the first hearing C said she had only paid Y and NS's house insurance and motor vehicle licence.[57] At the second hearing it was said that C was involving Y in discussions of the payment of accounts. However, as the carer reported that this made Y agitated, C said that she had ceased doing this.[58] Y is reported by the investigator as acknowledging that C pays the accounts.
[57] ts 12, 13 May 2024.
[58] ts 34, 13 May 2024.
Despite the suggestions by D that R has 'learning problems' and he is 'not up to it' it is also said that R is too busy running his business to undertake the role. I cannot give weight to D's assertions since she has expressed significant antagonism to R about what she says is his support of Y and NS. The views expressed as to R's unsuitability to act as attorney were not supported by the investigator following her interview of all the parties.
Counsel for the applicants argues that running their own business gives them a degree of flexibility in responding to matters from NS.
The investigator reports that C and R have experience in business and C has a working relationship with Y and with NS's accountants. C says they understand their obligations to keep records and are doing so. The investigator notes a review (by the attorneys) of NS's expenses, and by extension Y's which had uncovered unnecessary expenses, which were being reviewed and changes made.
The investigator submits that there does not appear to be any evidence to indicate that C and R as the enduring attorneys have not acted in NS's best interests.
As the 2017 EPA is a joint appointment, C and R must act jointly under the power. This may provide reassurance to S and D that both R and C will be required to make decisions jointly for NS as her attorneys.
According to the accountant's statement the financial interests of NS (and Y) include a self-managed superannuation fund (SMSF), a family trust, bank accounts, and real property including the home in which she lives with Y and a holiday home. All the assets are apparently jointly held with Y. No liabilities are reported.
As NS's assets are jointly held with Y, this will necessarily require a working or collaborative relationship with him. R and C appear to have such a relationship. Counsel for C and R submits that tact and consideration of Y's requests for confidentiality need to be considered and tact and care needs to shown in the sharing of information.[59]
[59] ts 15, 14 October 2024.
Until the inspection of documents filed in this proceeding S (and J and D and P) were unaware of the extent of NS and Y's estate.
Although S acknowledges that Y and NS did not share information with her the failure by them to tell her about the execution of the 2017 EPA has contributed to her distrust and the family conflict so evident in this proceeding. S argues that this information was withheld from her. S makes accusations of secrecy and lying because it appears she believes she was entitled to this information. However, there is no obligation on a donor or attorneys to advise of the execution of an EPA to other family members as it is essentially a private arrangement between the donor and the donee.[60]
[60] EW [2010] WASAT 91 at [94].
In terms of meeting NS's financial decision-making needs the attorneys acting under the 2017 EPA can meet the SMSF's critical compliance obligations under the relevant Commonwealth legislation.[61] These are complex matters, and the attorneys will require advice from the accountants and potentially legal advice to ensure those obligations are met.
[61] The provisions of the Superannuation Industry Supervision Act 1993 (C'th) (SIS Act) include at s 10 the definition of a personal representative to include a person who holds an enduring power of attorney granted by a person who is a member of a SMSF. See also s 17B(3)((ii) SIS Act.
All family members report they agree that NS should be cared for at home. Only Y objects to the estimated cost of $50,000 per month on the basis that he believes that NS does not need the 24-hour nursing care provided.
P submits that C and R may have a conflict of interest as attorneys for NS, as they are also appointed as attorneys for Y if the interests of NS and Y do not coincide in the future. P says this is in respect of the potential sale of jointly held assets to maintain NS's care at home to which Y might be opposed.[62] This is not understood to be the position at present but suggested as a possibility in the future.
[62] ts 64, 14 October 2024.
As was discussed in the hearing if assets are jointly owned, in the first instance both owners must agree to any disposal. If Y opposes transactions thought to be necessary by the attorneys for them to act with reasonable diligence to protect the interests of NS[63] then it is open for them to seek directions from the Tribunal as to further steps which might be necessary to advance those interests. Alternatively, an application could be made seeking the appointment of an independent administrator for NS. Y is understood to have a recognised cognitive impairment. Whether Y retains capacity to direct his attorneys is something that may need to be examined by them in the future.
[63] Attorneys must act with reasonable diligence to protect the interests of the donor (s 107(1)(a) of the GA Act).
As to the practical operation of the 2017 EPA the example was given of the purchase of a chairlift which counsel said was fully supported by C and R but illustrated the lack of communication. The chairlift was arranged by S so that NS can safely access the upper floor of her home and the invoice was left on the table for payment by the attorneys. It was seems that C and R were not consulted prior to the contract for the purchase of the chairlift being entered into despite being now responsible for the management of NS's estate and accountable for that management. S said that Y had paid the deposit on his debit card and that he would pay the balance[64] It does not seem to be appreciated that R and C have a role to play as the attorneys for both NS and Y.
[64] ts 37, 14 October 2024.
This and other day-to-day issues explored in the second hearing such as reconciliation of chemist accounts illustrate the challenging nature of the relationships where relatively minor issues remain a source of conflict.
The attorneys have the obligation to keep records as attorneys for NS[65] and will need to have control over expenditure to discharge their obligations to act with reasonable diligence to protect the interest of NS.[66]
[65] GA Act, s 107(1)(b).
[66] GA Act, s 107(1)(a).
The Tribunal may revoke or vary an EPA if an application is made under s 109 of the GA Act or when making an administration order pursuant to s 108 of the GA Act. I see no present need to revoke the 2017 EPA and no need to vary in the way proposed by S to include her, even if this were possible.[67]
[67] In my view variation of the 2017 EPA to add S could not occur as there are already two jointly appointed attorneys and to add another attorney would be inconsistent with the decision in Ricetti v Registrar of Titles [2000] WASC 98 which held that the definition of donee in s 102 of the GA Act means no more than two donees.
As noted above if an administration order is made, which is inconsistent with an existing EPA, ensuring the EPA may be revoked.[68]
[68] GA Act, s 108.
Despite the communication issues the attorneys have the requisite legal authority to manage the range of financial affairs and interests of NS. I accept they are keeping records as required and there is no persuasive evidence that they have not met their obligations as attorneys to NS. As such I am satisfied that the 2017 EPA is a less restrictive alternative to the appointment of an administrator of her estate.
To revoke the 2017 EPA in the present circumstances I would need to be satisfied that there was a need for an administrator of NS's estate. For the reasons given I am not satisfied that NS is in need of an administrator of her estate. Therefore, the jurisdiction to revoke it pursuant to s 108 of the GA Act is not enlivened.
If the attorneys become unwilling to act under the 2017 EPA, they cannot renounce their appointment as NS is now incapable and they must come back to the Tribunal.[69] In those circumstances the appointment of an administrator of NS's estate will be necessary. Given the history of conflict in the family and the complexity of the estate it is possible, even likely, that the Public Trustee would be appointed.
[69] GA Act, s 107(1)(c).
In the current circumstances I accept the submissions by counsel for the applicants and those of the investigator and am satisfied that the 2017 EPA is a less restrictive alternative to meet the financial management needs of NS. As such I find there is no need for the appointment of an administrator of her estate and give leave to the applicants to withdraw that application.
Guardianship
NS does not have an EPG and now according to the medical evidence which I accept lacks capacity to make one.[70] Although her treating doctors regarded her as lacking capacity to make treatment decisions, significant medical and surgical treatment of NS occurred when she was initially hospitalised earlier this year and since.
[70] To make an EPG the appointor must be of full legal capacity: GA Act, s 110B.
These procedures included clinical investigations while she was in hospital, insertion of an indwelling catheter (IDC), surgical repair of the rectal prolapse and knee replacement surgery. These procedures and treatments all occurred without the appointment of a guardian for NS.[71] S reports in her diary entry dated 24 April 2024 that C signed the consent for the general anaesthetic for the surgical repair of NS's prolapse. C confirmed this to the investigator. S said she signed the consent for the knee surgery.
[71] It may be that the insertion of the IDC and rectal prolapse repair surgery were regarded as 'urgent treatment' of NS the definition of which includes at s 110ZH(a)(iii) of the GA Act to prevent the patient from suffering or continuing to suffer significant pain or distress. Urgent treatment may be provided to a patient without consent. The knee surgery was unlikely to have fallen within the definition of urgent treatment, but the procedure proceeded with the consent of C and S. This may have been as each was considered to be the 'person responsible' who could give consent to treatment of an incapable patient despite Y being her spouse and therefore at the top of the hierarchy in s 110ZD (3) of the GA Act but lacking the required 'full legal capacity' see GA Act, s 110ZD(2)(a).
Additionally, an ACAT was completed, and NS was discharged to home with 24-hour carers who were engaged by S and continue to attend their home despite NS and Y's opposition to their presence. The investigator reports that NS appeared comfortable and accepted support from the carer attending her when the investigator interviewed her at her home.
Despite this I am satisfied that NS is in need of a guardian.
Y is reported to be experiencing his own cognitive difficulties. His impairments appear to be acknowledged to a greater or lesser extent by the family members. J for example although apparently accepting that Y has a level of dementia and S describing Y as always vague in his responses[72] consider that Y can be relied on to communicate health information about NS to R and C. This may reflect a lack of appreciation by them of the impact of his cognitive impairment on his memory and ability to recall and convey important information.
[72] ts 65, 14 October 2024.
From his own evidence[73] Y does not appreciate NS's own memory impairment and its impact on her functioning and does not accept NS's cognitive decline, her care needs or her need for supervision. In this sense, as is submitted by the investigator, I accept he is not able to make personal decisions for NS in her best interests.
[73] For example, ts 60 - 61, 14 October 2024.
Dr C's report refers the need for a guardian to consent to medications which NS does not agree she needs. The anticholinesterase medication for dementia has potential side effects identified by Dr C. The risperidone proposed to manage NS's reported aggressive behaviours must be regarded as a chemical restraint. Such medications as suggested may be in the overall best interests of NS to maintain her cognition for a period or to support NS and her carers in a safe environment but each has potential adverse effects as identified by Dr C. As Dr C reports NS does not have capacity to weigh up the pros and cons and to decide about these medications in her best interests.
Y is the next of kin or 'nearest relative' of NS and is the person to whom health practitioners would normally turn for a substituted decisions for medical treatment of NS. However, it seems he was not considered to have full legal capacity as required by s 110ZD(2)(a) in the GA Act to give consent to the surgeries.[74]
[74] See GA Act, s 110ZD(2)(a).
Y lacks an understanding of NS's increasing needs and because of his reported memory impairment I am not satisfied that there is a reliable less restrictive alternative for treatment decision-making for NS. Although consents for surgeries for NS were in fact obtained from C and S, I am satisfied that NS needs a guardian to make treatment decisions into the future to provide certainty about who has authority to do so.
There is a need for a guardian to make treatment decisions and to make decisions about forms of restraint on NS's behalf having regard to the proposed prescription of risperidone.
Although it is NS's wish (and Y's preference) for her to remain at home as long as possible and family members support this at present, this may not be possible in the longer term. This may be because NS's care needs change, her behaviours of concern increase, the environment no longer meets her care needs or for financial reasons, given the cost of the paid care arrangements in place and the ACAT assessment that the arrangements are unsustainable.
I am satisfied that there is a need for a guardian to have authority to determine where and with whom NS should live. I am also satisfied that there is a need for formal authority to determine the services to which NS should have access as this is closely aligned with the accommodation decision. It has been determined that NS requires 24‑hour nursing care, and her needs may need to be reviewed into the future to ensure that the arrangements are appropriate and meet her changing needs.
I am also satisfied that a guardian is needed to make decisions about the contact NS has with others. D says that she wishes to see NS. When D visited NS in hospital NS could not remember the reasons for the estrangement. If it is the case that Y continues to hold the views that D reports and would restrict contact between NS and D, then there is a need for a guardian to ascertain NS's own wishes in this regard and to facilitate contact if this is NS's wish.
I am satisfied there is a need of the appointment of a guardian for the functions identified and NS's personal decision-making needs cannot be met less restrictively.
Suitability for appointment as guardian
There are opposing proposals for the appointment of a guardian for NS. C and R propose they be appointed jointly in line with their role as attorneys. S proposes she be appointed solely as guardian. D supports her appointment. The investigator reports that Y thinks that C and S could work together as guardians of NS. Although a joint appointment of C and S was canvassed briefly in the hearing it was obvious that this could not work because of the fractured relationship and poor communication between them.
Hearings in the Tribunal in the guardianship jurisdiction are often challenging for parties coming as they often do in the context of deteriorating health or functioning of a family member, where family relations may be strained and communication not optimal or when old rivalries or conflicts resurface. People are often not at their best on these occasions. Even allowing for this, S and J were unable to restrain their interjections during the hearings. This was despite a caution given at the commencement of the second hearing about expected conduct and even when the manifest conflict was identified as a potential barrier to a family appointment their comments and interjections persisted. At one point S and J described their interjections as emotional.[75] At another she said 'I'm looking at these people now, and I can look them straight in the eye, and we could go for it in front of you, and then you would know the real truth'.[76] At times it was difficult for other speakers to give their evidence or views and to be properly heard.[77]
[75] ts 58, 14 October 2024.
[76] ts 36, 14 October 2024.
[77] See for example the exchange at pages 33 - 35 of the transcript of 13 May 2024.
In her report the investigator recommended that S be appointed as guardian noting that S had advised she was willing and able to set aside any personal differences to work with the family. It was recommended that S give an undertaking about communicating with other family members if appointed and that having an undertaking in place and the right of review (of the order)[78] would satisfy the concerns around communication.
[78] Any family member other than an appointed guardian would require leave pursuant to s 87 of the GA Act.
Unfortunately, personal differences were again aired extensively in the second hearing going back to S and D's dissatisfaction with decisions made by NS and Y in 2017 and strong criticism of R and C.
I have considered the proposal for the appointment of S as guardian for the functions as recommended with such an undertaking, but I am not confident that such an undertaking could or would be met.
On two occasions it has been reported that S supported C and R's role; the first by the hospital social worker that she supported the application made by them to the Tribunal for their appointment as guardians; and more recently by the investigator that she (and J) supported the continuation of the 2017 EPA as being in the best interests of NS. I accept that these assurances were given by S, but she has not maintained these positions at both subsequent hearings only a short time later. While accepting that S may have changed her mind about these matters it does call into question the durability of any agreement she might make when it involves communication with R and C. It is evident that S has a strong antagonism to them and continues to question the legitimacy of the 2017 EPA by which they are appointed attorneys for NS.
When determining the appointment of a guardian (or an administrator of an estate) the GA Act identifies criteria to be considered by the Tribunal in determining the suitability of any proposed appointee.
In respect of the appointment of a guardian s 44 of the GA Act provides:
44.Who may be appointed guardian
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal —
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible —
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
It is acknowledged that S has been driving the health care decision-making for NS both while she was in hospital and since discharge. She has been able to consent to the ACAT and to arrange carers for NS. Noting that prior to her hospital admissions earlier in 2024, NS had no services at home prior to the admissions and now has qualified nursing care on a 24-hour basis. C had reportedly been unable to source home care for NS at the time the hospital discharge was proposed although she attempted to do so. S proposes a greater level of family involvement in provision of care and states that she is already doing this.[79]
[79] ts 63, 14 October 2024.
I am satisfied that S is acting in what she sees as the best interests of NS. However, I do not find her suitable for appointment because of the level and nature of the conflict with R and C who are the appointed attorneys for NS.
Both C and S complain about poor communication alleging a failure to keep the other properly informed about hospital admissions, medical appointments, and other matters for NS. There were numerous examples of this given in both hearings. Without resolving all the allegations made, it is the case that the relationships are fractious and what communication there was appeared to be minimal and grudging. There was in my view a lack of any genuine willingness to cooperate. Both specialist doctors refer to the conflict or lack of communication in their correspondence, so the issue has been raised with health professionals. It is not appropriate that Y, with his known memory impairment or a paid carer be the 'go between', that is the conduit for the sharing of information about NS.
NS circumstances do require cooperation between the guardian and the appointed attorneys especially regarding the engagement of her services and in the longer-term planning for her accommodation needs. NS's health relates closely to the level of care she needs. Open and functional communication about medical and other health matters is essential to inform the decision-making of all those involved in the care and support of NS. Because of the level of conflict and mistrust between S (and J) and R and C there has not been effective sharing of information.
Because of the continuing conflict about the 2017 EPA, I am not satisfied that S is compatible with the attorneys. Although s 44(2)(b) of the GA Act refers to compatibility of a proposed guardian with an administrator of the estate of the represented person rather than an attorney I am satisfied it is a relevant consideration having regard to the equivalence in the roles played by attorneys and administrators appointed by the Tribunal in the management of the estate of the represented person.
C and R also express their commitment to NS's best interests, and I accept that they would also act according to their views of her best interests. Although it related to her financial affairs it was, they who were chosen by her in 2017 to manage her finances and this reflects some degree of trust in them, and they reportedly have a good relationship with her.
However, to appoint C and R as guardians of NS would in my assessment likely lead to a greater level of conflict with S and further compromise family relationships.[80] This may have further negative consequences for NS. For this reason, I do not find C and R suitable for appointment as guardians either. This is especially so since S is playing a hands-on role in the care of NS and must have confidence in the appointed guardian's decisions as they relate to the care of NS.
[80] See s 44(2)(a) of the GA Act.
I do not consider that it is in the best interests of NS that the level of conflict demonstrated continue. The appointment of an independent guardian in whom all parties can have confidence as acting in a professional capacity with only the interests of NS in mind may reduce the conflict and ultimately may improve the exchange of information regarding NS's needs. For the reasons given I am satisfied that there is no one else suitable for appointment, and I appoint the Public Advocate as NS's limited guardian.
Although NS has a progressive condition and will likely need a guardian in the longer term, an earlier review is appropriate. A review in two years will allow consideration of whether all the functions in the original order remain necessary. More importantly, if there can be a reduction in the conflict or at least an improvement in the functionality of communication between the parties a family appointment as guardian may be possible.
I am satisfied that a limited order with the functions identified is sufficient to meet the current needs of NS such that a plenary order is not needed.[81]
[81] GA Act, s 4(5).
For these reasons I make the following declarations and orders.
Orders
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [NS] is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
Administration
2.Pursuant to s 46(1) of the State Administrative Tribunal Act2004 (WA) the applicant has leave to withdraw the proceeding and the proceeding is withdrawn.
Guardianship
3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is 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 make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact;
(e)to determine the services to which the represented person should have access;
(f)to decide whether to give or withhold consent to the use of any restrictive practice for the represented person proposed from time to time in compliance with Part 4A of the Quality of Care Principles 2014 made pursuant to the Aged Care Act 1997 (Cth); and
(g)to decide whether to give or withhold consent to the use of restraint to give effect to a decision of the guardian made pursuant to these orders and in the interest of the represented person's health and safety, on the following basis:
(i)where restraint is proposed, a medical plan must be developed setting out the purpose and circumstances under which restraint is to be used. The plan must be approved by a medical practitioner and, if it remains in place, be regularly reviewed; and
(ii)a decision to use restraints should be made only after all reasonably available less restrictive alternatives have been considered and found not to be successful.
4.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.
5.The guardianship order is to be reviewed before 25 November 2026.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
2 DECEMBER 2024
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