PB
[2016] WASAT 122
•7 OCTOBER 2016
PB [2016] WASAT 122
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 122 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:3024/2016 | 4 OCTOBER 2016 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 7/10/16 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | The Public Trustee appointed as limited administrator | ||
| B | |||
| PDF Version |
| Parties: | PB |
Catchwords: | Guardianship and administration Enduring power of attorney Enduring power of guardianship Presumption of capacity Terminal illness Poor prognosis Illness and treatment impacting on cognitive capacity Presumption of capacity not displaced for personal matters Family Court action Property settlement Case guardian in the Family Court Family Court Rules 2004 Administrator appointed for Family Court action Enduring power of attorney varied to remove inconsistency with the power given under the administration order |
Legislation: | Family Court Rules 2004 Family Law Rules 2004, r 6 Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(5), s 4(6), s 43, s 44, s 45, s 45(2)(g), s 45(2)(h), s 64, s 68, s 69, s 69(4), s 84, s 97, s 97(1)(b)(iii), s 108(1), s 108(1a), s 108(1a)(a), s 109(1)(c), s 110F, s 110N(1)(a), s 110ZD |
Case References: | GC and PC [2014] WASAT 10 |
Summary | PB, a 62yearold man, had been diagnosed with a terminal illness. The prognosis at the time of the Tribunal hearing was measured in months.,PB lived with his de facto partner, JL, who was his attorney under an enduring power of attorney (EPA) and his guardian under an enduring power of guardianship (EPG).,PB separated from his former spouse, VB, in about June 2013 and was formally divorced in about July 2015.,VB made four applications in respect to PB, pursuant to the Guardianship and Administration Act 1990 (WA). The applications were for the appointment of a guardian, the appointment of an administrator and revocation of the EPA and EPG (applications).,Prior to making the applications VB had commenced action in the Family Court for a property settlement (Family Court action).,The medical evidence before the Tribunal was consistent in regards to PB's current capacity to make decisions concerning his medical treatment, accommodation and the provision of support services. These were the main areas in PB's personal life that required decisions to be made as he approached his death.,The Tribunal found that in the arrangements he had consented to for his care, PB was currently capable of looking after his own health and safety and able to direct the oversight he needed. The Tribunal further found that PB was currently able to make reasonable judgments about his treatment, living situation and support services.,The Tribunal found that in personal matters the presumption of capacity was not displaced.,If in the near future, PB became incapable of making these decisions, the Tribunal decided that the EPG should be allowed to operate.,The applications for the appointment of a guardian and the revocation of the EPG were therefore dismissed.,There were two aspects to the management of PB's estate.,The first was the management of PB's pension income and how it was to be used. The Tribunal found that PB was able to continue to give directions on his pension income and that JL could use the EPA to act on those directions.,The second aspect was the Family Court action which involved engaging in a settlement process, both in making and responding to settlement offers in a timely manner to avoid a trial, if at all possible. These settlement negotiations could be complex, particularly in the case of PB, where there likely would be a dispute about what constituted the marital pool of assets.,The Tribunal found that such a process in the Family Court was more likely than not to overwhelm PB's cognitive capacity. Being clear about what he wanted was not the same as making judgments on complex matters as they quickly unfolded.,The Tribunal was satisfied to the required standard that PB was unable to make reasonable judgments about the Family Court action and was in need of an administrator to progress his interests in that action.,The Tribunal was of the view, however, that under the Family Law Rules 2004, it remained for the Family Court to finally determine who the case guardian for PB should be.,The Tribunal could not appoint JL because she potentially had an interest in a property that might be the subject of the dispute in the Family Court.,The Tribunal could also not appoint a son of PB (as proposed by VB) because they did not have a close relationship and he would be placed in an untenable position should he have to promote his father's interests at the expense of the interests of his mother.,The Tribunal decided to appoint the Public Trustee as PB's limited administrator to deal with the Family Court action.,The Tribunal decided that in all other respects the EPA should be allowed to operate but was required to vary the EPA to remove the inconsistency in the authority now given to the Public Trustee, as PB's administrator. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PB [2016] WASAT 122 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 4 OCTOBER 2016 DELIVERED : 7 OCTOBER 2016 FILE NO/S : GAA 3024 of 2016
- GAA 3026 of 2016
GAA 3027 of 2016
- Represented Person
Catchwords:
Guardianship and administration - Enduring power of attorney - Enduring power of guardianship - Presumption of capacity - Terminal illness - Poor prognosis - Illness and treatment impacting on cognitive capacity - Presumption of capacity not displaced for personal matters - Family Court action - Property settlement - Case guardian in the Family Court - Family Court Rules 2004 - Administrator appointed for Family Court action - Enduring power of attorney varied to remove inconsistency with the power given under the administration order
Legislation:
Family Court Rules 2004
Family Law Rules 2004, r 6
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(5), s 4(6), s 43, s 44, s 45, s 45(2)(g), s 45(2)(h), s 64, s 68, s 69, s 69(4), s 84, s 97, s 97(1)(b)(iii), s 108(1), s 108(1a), s 108(1a)(a), s 109(1)(c), s 110F, s 110N(1)(a), s 110ZD
Result:
The Public Trustee appointed as limited administrator
Summary of Tribunal's decision:
PB, a 62yearold man, had been diagnosed with a terminal illness. The prognosis at the time of the Tribunal hearing was measured in months.
PB lived with his de facto partner, JL, who was his attorney under an enduring power of attorney (EPA) and his guardian under an enduring power of guardianship (EPG).
PB separated from his former spouse, VB, in about June 2013 and was formally divorced in about July 2015.
VB made four applications in respect to PB, pursuant to the Guardianship and Administration Act 1990 (WA). The applications were for the appointment of a guardian, the appointment of an administrator and revocation of the EPA and EPG (applications).
Prior to making the applications VB had commenced action in the Family Court for a property settlement (Family Court action).
The medical evidence before the Tribunal was consistent in regards to PB's current capacity to make decisions concerning his medical treatment, accommodation and the provision of support services. These were the main areas in PB's personal life that required decisions to be made as he approached his death.
The Tribunal found that in the arrangements he had consented to for his care, PB was currently capable of looking after his own health and safety and able to direct the oversight he needed. The Tribunal further found that PB was currently able to make reasonable judgments about his treatment, living situation and support services.
The Tribunal found that in personal matters the presumption of capacity was not displaced.
If in the near future, PB became incapable of making these decisions, the Tribunal decided that the EPG should be allowed to operate.
The applications for the appointment of a guardian and the revocation of the EPG were therefore dismissed.
There were two aspects to the management of PB's estate.
The first was the management of PB's pension income and how it was to be used. The Tribunal found that PB was able to continue to give directions on his pension income and that JL could use the EPA to act on those directions.
The second aspect was the Family Court action which involved engaging in a settlement process, both in making and responding to settlement offers in a timely manner to avoid a trial, if at all possible. These settlement negotiations could be complex, particularly in the case of PB, where there likely would be a dispute about what constituted the marital pool of assets.
The Tribunal found that such a process in the Family Court was more likely than not to overwhelm PB's cognitive capacity. Being clear about what he wanted was not the same as making judgments on complex matters as they quickly unfolded.
The Tribunal was satisfied to the required standard that PB was unable to make reasonable judgments about the Family Court action and was in need of an administrator to progress his interests in that action.
The Tribunal was of the view, however, that under the Family Law Rules 2004, it remained for the Family Court to finally determine who the case guardian for PB should be.
The Tribunal could not appoint JL because she potentially had an interest in a property that might be the subject of the dispute in the Family Court.
The Tribunal could also not appoint a son of PB (as proposed by VB) because they did not have a close relationship and he would be placed in an untenable position should he have to promote his father's interests at the expense of the interests of his mother.
The Tribunal decided to appoint the Public Trustee as PB's limited administrator to deal with the Family Court action.
The Tribunal decided that in all other respects the EPA should be allowed to operate but was required to vary the EPA to remove the inconsistency in the authority now given to the Public Trustee, as PB's administrator.
Category: B
Representation:
Counsel:
Represented Person : Ms H Athanasiou
Solicitors:
Represented Person : Ferrier, Athanasiou & Kakulas
GC and PC [2014] WASAT 10
Introduction
1 PB is a 62-year-old man diagnosed with a terminal illness. The prognosis at the time of the Tribunal hearing was measured in months.
2 PB lives with his de facto partner, JL.
3 On or about September 2015, PB made an enduring power of attorney and an enduring power of guardianship appointing his de facto partner, JL, as his attorney and guardian. These instruments were replaced by another enduring power of attorney (EPA) and an enduring power of guardianship (EPG) made by PB on 2 May 2016 appointing JL as his guardian and attorney. The EPA and EPG were witnessed by PB's longstanding general practitioner.
4 PB separated from his former spouse, VB, in about June 2013 and was formally divorced in about July 2015.
5 In August 2016, VB made four applications with the Tribunal in respect to PB, pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act). The applications are for the appointment of a guardian, the appointment of an administrator and revocation of the EPA and EPG (applications).
6 The applications were referred to the Public Advocate pursuant to s 97(1)(b)(iii) of the GA Act.
7 Prior to making the applications, VB had commenced action in the Family Court for a property settlement (Family Court action).
8 The Tribunal was advised by the parties to the Tribunal proceeding that the Family Court required PB to conduct his case on the property settlement by way of a case guardian.
9 JL had made application to be appointed case guardian but this has not been approved by the Family Court.
10 The Public Trustee advised the Tribunal by letter dated 14 September 2016 that on 5 July 2016 the Family Court appointed the Public Trustee as PB's case guardian. The Public Trustee had yet to consent to his appointment. The order of the Family Court is before the Tribunal.
11 The Tribunal was further advised by the parties that the Family Court was awaiting the outcome of the Tribunal proceeding before progressing the matter of the property settlement.
12 The applications were heard on 4 October 2016 and the hearing was attended by PB, JL, VB (represented by counsel), BB (son of PB), a representative of the Public Advocate (Public Advocate), a representative of the Public Trustee (Public Trustee) and others.
13 The decision was reserved.
Relevant legislation
14 The primary concern of the Tribunal is the best interests of PB: s 4(2) of the GA Act.
15 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of PB as expressed, in whatever manner, at the time, or as gathered from PB's previous actions: s 4(7) of the GA Act.
16 PB is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
17 Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for PB unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments about matters relating to his person; or is in need of oversight care or control in the interests of his own health and safety or for the protection of others.
18 Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of PB unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
19 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.
20 If a finding of incapacity is made in respect to PB, the Tribunal must further determine whether he is in need of guardianship and administration orders. If the needs of PB can be met in a manner less restrictive of his 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.
21 If the Tribunal decides that PB 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.
22 As to the authority given to a guardian, if a limited order is sufficient to meet the needs of PB 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 PB: s 4(5) and s 4(6) of the GA Act.
23 Under s 109(1)(c) of the GA Act the Tribunal can revoke an enduring power of attorney.
24 If an administration order is made the Tribunal can revoke or vary an enduring power of attorney: s 108(1) of the GA Act. If an administration order is made and the continued operation of an enduring power of attorney would be inconsistent with the functions of the administrator, the Tribunal must revoke the power or vary the enduring power of attorney to remove the inconsistency: s 108(1a) of the GA Act.
25 Under s 110N(1)(a) of the GA Act, the Tribunal can revoke an enduring power of guardianship.
The question of PB's capacity: medical evidence
26 The Tribunal has been provided with the following medical reports:
• 30 August 2016 from Dr RH, General Practitioner, including letters from Dr AL, Medical Oncologist, dated 20 May 2015, 24 June 2015, 1 June 2016 and 3 August 2016; Professor S, Consultant, dated 19 May 2015 and hospital discharge summaries dated 26 April 2015 and 8 May 2015.
• 6 July 2016 and 31 August 2016 from Dr AL, Medical Oncologist.
27 Dr AL also gave oral evidence at the hearing.
28 What these reports reveal is that PB was diagnosed with a malignant brain tumour in May 2015. In her report of 3 August 2016, Dr AL assessed PB's prognosis to be between four and 12 weeks.
29 Dr RH stated in his report that he last reviewed PB on 30 August 2016. He assessed PB as understanding financial and legal matters (simple and complex) but that he was incapable of managing these matters without assistance. Dr RH also assessed PB as being capable of making decisions regarding his treatment and his accommodation needs and capable of making an enduring power of attorney and enduring power of guardianship.
30 In her letter dated 6 July 2016, Dr AL stated that the disease and treatment had greatly affected PB's cognitive function which was expected to further decline. PB was becoming increasingly forgetful, had a poor attention span and had issues with perseveration and repetition. He was increasingly fatigued and had developed problems with his eyesight and was unable to read. Dr AL was then of the view that PB had the capacity ('full understanding') of the implications of nominating JL as his attorney and enduring guardian.
31 In her letter to Dr RH dated 3 August 2016, Dr AL stated that PB had declined further treatment with a particular medication and that he had consented for his body to be used for medical research.
32 In her report dated 31 August 2016, Dr AL assessed PB as being capable of giving consent to his medical treatment, and capable of making reasonable decisions concerning his accommodation and the provision of support services. Dr AL stated that PB had advised her he wished to remain at home for the rest of his life, with JL, and that he had consented to being provided with inhome palliative care.
33 Dr AL further assessed PB as being capable of making simple financial decisions but was unsure about his capacity to undertake complex financial decisionmaking. She had formed a view that PB did not have the capacity to deal with legal matters, adding that he required legal assistance, that he and JL had been discussing financial issues 'well prior to his deterioration' and that JL's input as to PB's opinion was paramount.
34 Dr AL had assessed PB on 31 August 2016 as being capable of making an enduring power of attorney and enduring power of guardianship.
35 In her oral evidence, Dr AL said that she last seen PB on 28 September 2016.
36 Dr AL stated that the effects of the illness and treatment meant that PB's cognition had slowed, that matters put to him had to be simplified and he be given time to process information. Dr AL said that the brain tumour had resulted in an acquired brain injury.
37 Dr AL assessed PB as still having the capacity to give consent to his treatment and that she had recently accepted his decision not to continue with chemotherapy.
38 Dr AL said that in her view the decision of PB to remain at home with care provided by JL and the palliative care team was an appropriate decision in the circumstances. Dr AL expressed a concern regarding the increasing levels of care that PB will require as the illness progresses and the effects of that care on JL. Decisions about where PB would be given treatment and care as he approached the end of his life and he became more disabled would likely need to be reassessed.
39 Dr AL said that PB defers to JL in his decisionmaking generally and it is not uncommon for people with his condition to defer to others in the circumstances of the progression of their illness. Dr AL said that PB continues to want JL in that role.
The applicant's case (VB)
40 VB's case was mainly presented by her counsel. VB gave brief oral evidence.
41 VB commenced the Family Court action in March 2016 and noted that the Public Trustee had been appointed PB's case guardian by the Family Court on 5 July 2016.
42 The position of VB is that JL has taken advantage of PB in the purchase of the property in which PB and JL live (property). The property was allegedly purchased in early 2016 in the names of JL and her son, using PB's superannuation payout of $64,340.
43 The argument of VB is that JL only appeared in PB's life when he became ill, that their relationship is relatively new and that from time to time PB has expressed a wish to return to the home where she lives (marital property). She referred to an email sent to her by PB on 7 August 2013 (filed with the Tribunal after the hearing) in which PB proposed a granny flat be built on the marital property where he could live alone so that no 'de facto' claims could be made against him. The response by VB, on the same day, was to decline the offer and to question PB's mental state.
44 VB also made reference to an email sent to her by PB on 25 August 2015 (also filed with the Tribunal after the hearing) in which she was first advised by PB of his terminal illness. The email also contained a proposal by PB as to an informal property settlement. The email mentioned 'my partner [JL]'.
45 It should be noted when filing the emails of 7 August 2013 and 25 August 2015, VB also included other emails from 2014 and 2015. I have not considered those emails on the basis that counsel for VB advised in the hearing that only the two emails mentioned would be relied upon.
46 Reference was also made to a discussion in January 2016 between PB and UB, one of PB's sons (who was not at the Tribunal hearing) where PB is alleged to have said he wanted to return to the marital property.
47 The submission of VB is that JL is in a position of a conflict of interest when placed in a decisionmaking role for PB because of her ownership (with her son) of the property to which PB contributed, but that contribution not being explicitly expressed as an interest on the property title.
48 Counsel for VB referred the Tribunal to concerns raised by the Family Court in the application made by JL to be appointed PB's case guardian, in particular, in the gifting of funds to purchase the property.
49 The initial position of VB was that PB should be in a hospice where he would receive the appropriate care, but in the Tribunal hearing it was conceded that Dr AL had approved the current inhome palliative care being given to PB. A concern was however raised that JL would not be able to provide PB with the necessary care because she was also committed to caring for a family member.
50 It was proposed by VB that PB's son, BB, be appointed the guardian and administrator for PB.
The evidence of BB
51 BB stated that he had not seen PB for many months because he had been confronted by the way he was approached by JL in that she had shamed him in public concerning the issue of him not seeing PB on a regular basis.
52 BB said that he was aware that his brother (UB) was seeing PB regularly, however, he said that he disagreed with UB's allegedly dissolute lifestyle and that UB was easily influenced. BB said that he resented PB giving UB his motor vehicle after he (BB) had repaired it.
53 BB consented to his appointment as PB's guardian and administrator.
The evidence and submissions of JL
54 JL stated that she and PB commenced their relationship in about May 2013. They became engaged but did not continue with marriage because PB's illness intervened. In the period of the relationship they have been on four cruises together.
55 JL said that prior to the purchase of the property, PB and her had been living in a rental property. However, as PB's illness progressed the rental property became inadequate for his increased care needs. JL referred to an incident where PB fell in the toilet and she had been unable to remove him. The landlord had refused to install disability aids in the rental property.
56 Because of the inadequacy of the rental property and the decision of PB that he remain living at home as the illness progressed, it was decided to purchase the property so that proper provision could be made for PB's ongoing care.
57 JL stated that the property settled in January 2016. The purchase price of the property was $325,000. PB contributed $129,655 from his superannuation (termination) payout. The property is owned by JL and her son and they have a mortgage on the property for $200,000.
58 JL stated that the inhome palliative care team provide significant assistance in the care of PB and are available on 15 minutes notice should an emergency occur. She said that she and PB want him to remain living at home for as long as possible but that hospice care would be considered if the need arose. JL said that hospice care is usually only available in the last few weeks of a person's life.
59 JL said that she had been involved in the care of a family member recently but that was nearly at an end.
60 JL stated that PB did not want his sons to know of his illness at first because he was trying to informally settle the marital property with VB.
61 JL stated that, in her view, VB has actively discouraged PB's sons to visit him and that she (JL) has tried to have the sons visit. JL said that she has established a good relationship with UB and he visited regularly.
62 JL stated that she did not agree with the Family Court that she may be in a position of conflict. She said she is very loyal to PB. However, in an attempt to overcome the impasse she and PB had asked that a friend of PB nominate as case guardian. At the time of the Tribunal hearing that application had not yet been filed with the Family Court.
63 JL stated that PB is still able to authorise his bank to allow her to deal with financial matters. She said that the EPA is lodged with the bank.
64 JL said that PB is in receipt of a part disability support pension and that PB has authorised for her to have an ATM card.
65 JL said that she is the appointed executrix of PB's will.
66 JL submitted that there is no need for guardianship and administration orders.
The evidence and submissions of PB
67 The Tribunal has before it a written submission from PB which includes copies of documents he has filed with the Family Court. PB was interviewed by the Public Advocate and he also responded orally on two occasions in the course of the Tribunal hearing.
68 It is not in dispute that due to his partial blindness (an outcome of his illness), JL has typed the documents attributed to PB that are before the Tribunal and the Family Court. JL said that she takes direction from PB as to what the documents should contain. PB said at the Tribunal hearing that he and JL generally discuss the relevant matters, he then dictates the message and finally the message is read back to him by JL.
69 The position of PB from his submission is that he is unhappy that VB, in his view, is causing trouble at this stage of his life. He is being well cared for by JL and she is his choice as guardian and attorney.
70 In oral evidence PB said that the care he is receiving is the 'best in the world', and that JL continues to take him to places and events.
71 In his submission, PB encloses a letter from an occupational therapist dated 19 August 2016 stating a view that JL was providing 'loving, caring and diligent care' to PB and that what had been witnessed firsthand was JL's compassion towards PB (occupational therapist letter).
72 In his submission, PB stated that he had tried many times to enter into a property settlement with VB but without success and that this matter became more urgent after the diagnosis of his terminal illness. When he discovered that VB would own the marital property upon his death as it is held as a joint tenancy (and he surmised it would eventually go to his sons), he decided to make JL the beneficiary of his superannuation and in this way the people he cared for (JL and his sons) would be financially secure.
73 In the interview with the Public Advocate (report of the Public Advocate dated 19 September 2016), PB spoke highly of the care and love given to him by JL. He was aware of the little time he had left and he wanted to remain at home.
74 As regards the purchase of the property, the Public Advocate stated in his report at page 6:
At interview [PB] was well aware of the circumstances stated above [the purchase of the property in the names of JL and her son]. He said he found renting very restrictive as he could not put in any handrails or other modifications which he needed, he was unable to have a loan in his name due to his condition and he wanted to provide for his partner in some way. He went to change the beneficiary on his superannuation [JL], the total of which was about $64,000. As his condition worsened [PB] had to retire from work and was able to withdraw this superannuation. His doctor also provided a letter which in effect stated he had less than 12 months to live, which entitled [PB] to a 'terminal illness payment' and this too was about $64,000. Of this $125,000 was used as a deposit for [the property].
75 In his submission, PB stated that the resultant mortgage on the property would be affordable by him and JL and by JL after he dies.
The Public Trustee
76 The Public Trustee stated that the Family Court has been advised that consent has not been given to his appointment as case guardian.
77 In the letter to the Tribunal of 14 September 2016, the Public Trustee recognised that the marital assets might not only include the marital home, but a possible interest that PB may have in the property.
78 The Public Trustee raised a concern as to the payment of legal fees should he be appointed as case guardian.
The Public Advocate
79 The Public Advocate submitted that, in his view, the presumption of capacity has not been displaced and that PB is able to instruct in the Family Court action.
80 The Public Advocate stated that JL is the executrix of the will of PB and if PB were to die before the Family Court action was completed, as executrix, JL would be the representative of his estate in the ongoing proceedings.
81 The Public Advocate submitted that there is no credible evidence to indicate that JL is not the appropriate person to be PB's guardian or enduring guardian. The Public Advocate stated that PB is well cared for and refers to the evidence of Dr AL as well as the occupational therapist letter.
82 As regards PB's financial affairs, the Public Advocate stated that JL is managing his pension and daytoday living expenses. In his investigation, the Public Advocate stated that he did not uncover anything irregular or untoward in JL's management.
83 The Public Advocate submitted that the application by VB for an administration order appeared to be as a consequence of the purchase of the property and has formed a view that PB was aware of the way in which the purchase was made and the resultant ownership structure.
84 The Public Advocate stated that the appointment of BB as PB's guardian and administrator is not supported and is not in accord with the wishes of PB.
85 The Public Advocate does not object to the appointment of JL or the Public Trustee as the administrator of PB's estate.
Discussion
86 The Full Tribunal in GC and PC [2014] WASAT 10 at [36] said:
… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decisionmaking capacity removed from them and a substitute decision-maker appointed for them under the Act. Because of the significant consequences for an individual of having their decisionmaking capacity removed from them and a substitute decision-maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity. (emphasis added).
PB's personal matters
87 The medical evidence is consistent in regards to PB's current capacity to make decisions concerning his medical treatment, accommodation and the provision of support services. These are the main areas in PB's personal life that require decisions to be made as he approaches his death.
88 There is no medical evidence before the Tribunal which expresses a contrary opinion to those of specialist medical practitioner, Dr AL, and the general practitioner, Dr RH on these personal matters.
89 I accept the medical opinions that are before me.
90 PB is gravely ill. He has validly consented to discontinue chemotherapy. His wish is to remain at home in the care of JL. This is supported by Dr AL. He has consented to the provision of inhome palliative care.
91 I find that in the arrangements he has consented to for his care, PB is currently capable of looking after his own health and safety and able to direct the oversight he needs. I also find that he is currently able to make reasonable judgments about his treatment, living situation and support services.
92 I find that in personal matters the presumption of capacity is not displaced.
93 I therefore dismiss the application for a guardianship order.
94 JL has been appointed by PB to be his enduring guardian under the EPG.
95 The EPG has effect, subject to its terms, at any time PB is unable to make reasonable judgments in respect to matters relating to his person: s 110F of the GA Act.
96 On the basis of my findings, the EPG cannot currently be used as a means by which personal decisions are to be made for PB. However, this situation may change as PB's illness progresses and he becomes increasingly disabled.
97 The effect of the application by VB to revoke the EPG now is to potentially create a vacuum in the personal decisionmaking of PB should he become incapable, although for treatment purposes, even if the EPG were not in place, JL might be permitted to lawfully make his treatment decisions if she is considered to be his de facto partner: s 110ZD of the GA Act.
98 On the evidence before me, I see no need to revoke the EPG. It is not yet in use. If it does need to be used in the future, I see no reason why JL should not make the necessary personal decisions for PB.
99 There is no evidence before me to suggest that JL has not acted in a loving and compassionate way in caring for PB since the dreadful diagnosis was made in May 2015. JL clearly has a good working relationship with PB's medical specialist, Dr AL and, I infer, with the inhome palliative care team.
100 I accept JL's evidence that if there is no option in the future but hospice care for PB, then that decision will be made.
101 PB first made an enduring power of guardianship in September 2015, appointing JL as his guardian. That authority has been replicated in the EPG. The medical evidence is that PB remains capable of making an enduring power of guardianship. There is no evidence that the EPG was not validly made.
102 The EPG is clear evidence of PB's wishes which the evidence shows has been consistent for a long period of time.
103 I therefore dismiss the application for revocation of the EPG.
PB's financial matters
104 There are two aspects to the current management of PB's estate.
105 The first is the simple management of his disability support pension. I accept, on the evidence, that PB is currently able to instruct JL in how that pension is to be expended and that JL acts on those instructions. In doing so, JL acts as the agent of PB under the EPA.
106 I accept the evidence of the Public Advocate that nothing irregular has been found in the management of PB's pension.
107 I find that the presumption of capacity has not been displaced in this part of PB's estate and he is able to make reasonable judgments about it.
108 The Family Court action is of a different magnitude when considering the decisions that need to be made concerning the property settlement, particularly if settlement offers are made of varying complexity.
109 There is also the management of the Family Court action which has implications in respect of PB's cognitive slowing, as assessed by Dr AL and, of course, PB's physical and mental ability to withstand a trial, should that happen.
110 The Tribunal has before it the order of the Family Court dated 5 July 2016. Order 2 states:
Each party keep the other advised in relation to any application to the State Administrative Tribunal for a Case Guardian to be appointed by the respondent [PB].
111 It seems to me, however, that it is not the Tribunal that appoints a case guardian for Family Court matters. The appointment of a case guardian is determined according to the Family Law Rules 2004 (FLR), specifically r 6.08A through to r 6.14.
112 Under subrule 2 of r 6.10 of the FLR, a person who is the manager of the affairs of a party, is taken to be appointed as the case guardian of a party upon the doing of certain things.
113 Rule 6.08A of the FLR defines a manager of the affairs of a party as including a person who has been appointed in respect of the party, a trustee or guardian under a Commonwealth, State or Territory law.
This definition presents a problem for the Tribunal.
114 Under the GA Act, a guardian can be appointed to act as a person's next friend or guardian ad litem except in proceedings relating to the estate of the person: s 45(2)(g) and s 45(2)(h) of the GA Act.
115 It seems to me that an action for a property settlement in the Family Court relates to the estate of the person and therefore a guardian cannot be appointed for that purpose.
116 An administrator appointed by the Tribunal under the GA Act is not a 'trustee' (see, for example, s 69(4) of the GA Act).
117 The FLR also allow the Family Court to appoint a case guardian upon the application of a person (r 6.10).
118 If it is the case that a guardian or administrator appointed by the Tribunal under the GA Act does not fall within the definition of a manager of the affairs of a party, the role of the Tribunal is then to decide whether the person is in need of an administrator to deal with Family Court actions. If an administrator is appointed for that purpose, the administrator can make application under r 6.10(1) of the FLR to be appointed case guardian. This is apparently the practice of the Public Trustee when appointed as administrator of a person's estate by the Tribunal.
119 In such a situation it would remain the role of the Family Court to decide who the case guardian should be.
120 The question is then, is PB in need of an administrator because he is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to the Family Court action and those needs cannot be met by other means less restrictive of PB's freedom of decision and action (s 64(1) and s 4(4) of the GA Act)?
121 I am satisfied that PB has a mental disability. He has an acquired brain injury.
122 In her report of 31 August 2016, Dr AL assessed PB as not having the cognitive capacity to make reasonable decisions about legal matters including the ability to commence, defend, or settle legal proceedings and that he needs legal assistance.
123 Dr RH, the general practitioner, has a contrary view.
124 I prefer the evidence of Dr AL in this regard as she is PB's primary physician and is most concerned with knowing at points in time, given the progressive nature of PB's illness, his ability to consent to matters.
125 The evidence of JL and PB is that documents, including no doubt Family Court documents filed to date, are typed by JL under instruction of PB and that his instructions have been clear.
126 However, the Family Court action is not just about filing documents with the Family Court. It is also about engaging in a settlement process, both in making and responding to settlement offers in a timely manner to avoid a trial, if at all possible. These settlement negotiations can be complex, particularly in the case of PB, where there likely will be a dispute about what constitutes the marital pool of assets.
127 I am of the view that such a process in the Family Court is more likely than not to overwhelm PB's cognitive capacity. Being clear about what he wants is not the same as making judgments on complex matters as they quickly unfold.
128 I am therefore satisfied to the required standard that PB is unable to make reasonable judgments about the Family Court action and is in need of an administrator to progress his interests in that action.
129 The administrator cannot be BB as proposed by VB. BB does not currently have a close relationship with PB and, in any case, he would be placed in an untenable position should he have to promote his father's interests at the expense of the interests of his mother.
130 It is also not the wish of PB that BB be appointed.
131 The administrator cannot also be JL. She has her own interests to protect in the property.
132 It is in PB's best interests that the Family Court action be settled before his death. He should be given the opportunity to have that peace of mind.
133 In my view, it is also in PB's best interests that JL be able to concentrate her energies on the time she is able to spend with him.
134 I must therefore appoint the Public Trustee as PB's administrator for the limited role of the Family Court action. It provides the best chance of settlement in a timely manner.
135 In all other respects the EPA should be allowed to operate. The evidence before the Tribunal is that PB was capable when he made the EPA in May 2016. The EPA is an expression of his wishes.
136 However, s 108(1a)(a) of the GA Act demands that the EPA be varied to remove the inconsistency in the authority I have given to the Public Trustee and I do so.
Orders
Administration
The Tribunal declares that the represented person, [PB];
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to part of his estate; and
(b) is in need of an administrator of his estate,
and the Tribunal orders that:
1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator of the estate of the represented person with the following function:
(a) To seek legal advice on behalf of the represented person in relation to the Family Court matter (PTW 1450/2015) and to bring and defend actions, suits and other legal proceedings in the name of the represented person in relation to the same and related matters and, if appropriate, to settle these matters.
2. The enduring power of attorney dated 2 May 2016 by which the represented person appointed [JL] to be his attorney, is varied by removing the power to deal with the Family Court matter (PTW 1450/2015) on behalf of the represented person.
3. The guardianship application is dismissed.
4. The administration order is to be reviewed by 7 October 2017.
Enduring Power of Attorney
In relation to the enduring power of attorney made by [PB] on 2 May 2016 appointing [JL], the Tribunal declares and orders that:
1. The application is dismissed.
Enduring Power of Guardianship
In relation to the enduring power of guardianship made by [PB] on 2 May 2016 appointing [JL], the Tribunal declares and orders that:
1. The application is dismissed.
I certify that this and the preceding [136] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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