PH and IW - [2009] WASAT 141

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PH and IW [2009] WASAT 141

MEMBER: MS F CHILD (MEMBER)

HEARD: 23 JANUARY, 2009, 21 APRIL 2009 AND 3 JUNE 2009

DELIVERED : 22 JULY 2009

FILE NO/S: GAA 51 of 2009
GAA 52 of 2009
GAA 647 of 2009

BETWEEN: PH
Applicant
AND
IW
Represented Person

Catchwords:

Guardianship and administration Review of guardianship order appointing Public Advocate as limited guardian Application for intervention in an enduring power of attorney Whether there is a need for a guardian because of continuing conflict between the spouse and adult children of the represented person Need for orders appointing independent guardian Whether there should be intervention in an enduring power of attorney Wishes of the represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 84, s 86, s 90, s 97(1)(b)(iii), s 109, s 119(3)(c)
State Administrative Tribunal Act 2004 (WA), s 76

Result:

Public Advocate appointed limited guardian
Application for intervention dismissed

Category: B

Representation:

Counsel:

Applicant: N/A
Represented Person : N/A

Solicitors:

Applicant: N/A
Represented Person : N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The son and daughter of a woman with a diagnosis of dementia applied to the Tribunal for leave to apply for review of a guardianship order which appointed the Public Advocate as her limited guardian some months before. They also applied for orders varying the enduring power of attorney their mother had made which appointed her spouse as her attorney. The son and daughter contended that if they were appointed their mother's guardians as they proposed, it would be unworkable if the spouse remained as the attorney.
Although by the time the applications were finally heard their mother had been admitted as a permanent resident of a nursing home, the son and daughter maintained that they should be appointed her guardians. They said that their mother's spouse had not made appropriate decisions for her care in the past and that they should replace him for healthcare decisions. They also submitted that they should have authority to determine where she was to live because, although they were currently satisfied with her care in the nursing home, this may not always be the case. The spouse maintained that there was no need for a guardian to be appointed. The Public Advocate's delegated guardian submitted that because of the ongoing tensions in the relationship between the adult children and the spouse, there was a need for an independent guardian.
The Tribunal accepted that there was a need for an independent guardian. Although all parties agreed that the woman was well cared for and settled in her present placement, the complete breakdown in the relationship between her spouse and her adult children would inevitably lead to further conflict which might impact on her care. The Tribunal was not satisfied that the parties could resolve these matters themselves, and the appointment of the Public Advocate in a limited role to make decisions about accommodation and contact for the woman would provide some external monitoring of the situation in her best interests.
The Tribunal dismissed the application for intervention in the enduring power of attorney as no substantive issues were raised about the management of the woman's finances under the power, and an investigation by the Office of the Public Advocate reported that the spouse was dealing with her affairs appropriately. The expressed wishes of the woman, through her enduring power of attorney and more recently, was that her spouse manage her finances. As this arrangement was operating effectively in her best interests, it was not necessary or appropriate to vary the enduring power of attorney as proposed.

The applications

These reasons relate to determinations of the Tribunal of applications filed in January 2009 by the son, PH, who is the applicant, and the daughter, MH, who, with PH, is the proposed joint guardian of IW (represented person) for leave to apply for review of a guardianship order dated 21 October 2008 which appointed the Public Advocate limited guardian of the represented person. That order was to be reviewed by 20 April 2009.
Intervention is also sought in an enduring power of attorney (EPA) dated 15 September 2006 by which the represented person appointed her spouse, FD, (spouse) as her attorney and her son, PH, as the substitute attorney on the death, incapacity or written resignation of the spouse as attorney. The applicant seeks the immediate substitution of the applicant as attorney.
The applications were listed for directions in January 2009, as the applicant sought an injunction from the Tribunal to prevent the spouse removing the represented person from a nursing home to which she had been admitted for respite with the consent of the Public Advocate. The Public Advocate's delegated guardian did not support the need for urgent orders and the parties agreed to attend mediation in February 2009 before a senior member of the Tribunal in an effort to resolve the issues. The Public Advocate was directed to investigate the applications pursuant to s 97(1)(b)(iii) of the Guardianship and Administration Act 1990 (WA) (GA Act) and to report to the Tribunal at the reconvened hearing. At the request of the applicant, the Tribunal directed that summonses were to issue for records from the hospital where the represented person had been admitted in December 2008.
Unfortunately, the issues were not resolved at mediation and the matter proceeded to hearing in April 2009 in the country town in which the represented person has lived with her spouse for some years and where she now resides in a nursing home. The represented person did not attend the hearing due to the deterioration in her mental state. The hearing was adjourned at the request of the applicant, having been part heard, as medical records of the represented person which had been ordered to be produced at the directions hearing had not been obtained by the Tribunal. Leave was granted to the applicant to bring the application for review, and the final hearing was convened on 3 June 2009 once the documents and further written submissions had been received. The applicant and the spouse, the delegated guardian and an investigator from the Office of the Public Advocate appeared in person, and the proposed joint guardian and another son and daughter‑in‑law of the represented person appeared by telephone. The represented person did not attend. Following the hearing, the decisions were reserved.
These written reasons set out the reasons for the decisions made and are produced pursuant to s 76 of the State Administrative Tribunal Act 2004 (WA).

The legislation

Whether a review of the guardianship order is conducted on the applicant's application under s 86 of the GA Act (leave having been granted) or a periodic review as required by s 84 of the GA Act, as it was in this case by April 2009, the powers are the same: the Tribunal can confirm, revoke or amend the order (s 90 of the GA Act).
To make or confirm a guardianship order, the Tribunal must be satisfied that the represented person remains someone for whom a guardian can be appointed. Section 43 of the GA Act provides that a guardian may be appointed for someone who is:
…
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
…
In respect of the application to intervene in the EPA, s 109(1)(c) of the GA Act provides that:
(1)A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order ‑
…
(c)revoking or varying the terms of an enduring power of attorney, appointing a substitute donee of the power or confirming that a person appointed to be the substitute donee of the power has become the donee.
Section 4 of the GA Act sets out the principles the Tribunal is required to observe in all proceedings commenced under the Act.
The principles provide that the primary concern of the Tribunal must be the best interests of the represented person; that every person shall be presumed to be capable of looking after their own health and safety, and of making reasonable judgments in respect of matters relating to their person; managing their own affairs; and making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal.
The principles also include that orders should not be made if the needs of the person in respect of whom the proceeding relates could, in the opinion of the Tribunal, be met by means less restrictive of the person's freedom of decision and action. Any order made should be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
In considering any matter, the Tribunal is bound to attempt to ascertain the wishes of the person as expressed or gathered from the person's previous actions.
As to who should be appointed guardian, the Tribunal is guided by the provisions of s 44 of the GA Act in determining the appropriate appointment of a guardian for the represented person.
To determine the suitability of any proposed guardian, the desirability of preserving supportive relationships of a represented person; the compatibility of the proposed guardian with the represented person and the administrator (if any) of that person's estate; the wishes of the represented person; and whether the proposed guardian will be able to perform the functions vested in him or her must be taken into account by the Tribunal (s 44(2) of the GA Act).

Background and history of orders

The represented person is a woman of 83 years. She has been married to her spouse for approximately 12 years and they have lived in a country town for much of that time. It is her second marriage. She has three adult children from an earlier marriage; sons, GH and PH, and a daughter, MH. PH is the applicant in this matter, and both he and MH are the proposed guardians. None of the represented person's children live in the town. The daughter lives the closest in another country town approximately 40 kilometres away.
A medical report before the Tribunal notes the represented person was diagnosed with early dementia in November 2006. By July 2008, it was reported that she suffered moderate Alzheimer's dementia.
At the hearing in September 2008 of the first applications to the Tribunal, the represented person's statements reveal that she had no insight into her condition and maintained that she was fully independent despite reports from the visiting nurse and the doctor who had assessed her that her spouse managed all of the household tasks and the represented person's care.
Following applications by the present applicant made in August 2008, the Public Advocate was appointed limited guardian of the represented person on 20 October 2008, with the functions to determine the services to which she should have access, including access to respite care. The order was to be reviewed by 20 April 2009. On an application for intervention in an EPA also made by the applicant, her spouse, as donee of the represented person's EPA, was ordered, pursuant to s 109(3)(b) of the GA Act to pay the costs of any services for the represented person as may be engaged on her behalf by her guardian.
These orders were made in the context of ongoing conflict between the spouse and the adult children of the represented person about whether she should be cared for at home, as was her expressed wish, supported by her spouse, or in a nursing home, as the adult children proposed. There was also conflict about the services which she should access and allegations that the spouse was limiting contact by the children with the represented person.
By way of background to the present applications, at the hearing in September 2008, a registered nurse with the Aged Care Assessment Team (ACAT) who had visited the represented person's home, said that she did not think there was an immediate risk to the represented person but the situation would be helped if the spouse would accept more community services (T:40, 2.9.2008). That hearing was adjourned for investigation by the Public Advocate and when the matter was decided at hearing in October 2008, the Public Advocate was appointed the limited guardian. Although the spouse was recognised as being devoted to the represented person and to giving effect to her wish to remain living at home, the Tribunal found that he did not fully appreciate the extent of his wife's disabilities and her need for additional support services while he cared for her at home. He had not fully cooperated with the provision of home‑based services to the represented person during the adjournment as he had undertaken to do. The Tribunal ordered the spouse, as donee of the represented person's EPA, to meet any costs for services engaged by the guardian.
When the present applications were filed by the applicant in January 2009, the represented person had been admitted to a nursing home from hospital, having been presented to the hospital on 30 December 2008 by her daughter, MH. On 16 January 2009, in an urgent application to the Tribunal, the applicant stated he was concerned that the represented person would be removed from the facility by the spouse, as he had done the year before during an admission of the represented person for respite care. That removal had prompted the original applications.
In the course of the January 2009 hearing, the Tribunal was advised that MH had taken her mother to hospital urgently for investigation of what she believed to be blood in the urine of the represented person, which MH had seen during a daytime visit to the represented person's home, which had been approved by the guardian. Despite this, and what was said to be the urgency of the situation, the hospital notes do not record this as a presenting problem on admission of the represented person. At the resumed hearing in June 2009, MH conceded that she had not advised the admitting staff that she believed she had seen blood in the urine but had expressed her concern about the dishevelled appearance and smell of stale urine on her mother and her belief that she was not cared for adequately at home by the spouse.
The represented person was admitted to hospital and remained there for some days and was then transferred to a respite bed in a nursing home before a permanent placement was located at another nursing home. The hospital admission notes dated 30 December 2008 identify the presenting complaint as 'unkept [sic], smelling strongly of stale urine, looks unwell, Dementia, family concerned re husband not looking after her correctly'. Later reference is made in the notes to 'poor nail care' and 'looking and smelling unkempt'. Later, the hospital notes record an attempt on 5 January 2009 by staff to discharge the represented person to her home to the care of her spouse, as no nursing home bed could be found, but that he had refused.
In response to the statement that the represented person required hospital admission, the spouse denies that the represented person was unkempt when she left to visit her daughter, MH's, home. He states she was showered prior to the visit and blames MH for failing to manage the represented person's incontinence appropriately. The guardian confirms that the care coordinator from the direct service provider had reported that a care worker had seen the represented person on 29 December 2008 and she 'wasn't smelly or unkempt' (T:54, 21.4.2009).
The guardian reports that during December 2008, the spouse had indicated to him that he could not continue to manage the care of the represented person at home and the guardian had agreed to assist him to locate nursing home care for her.
The guardian reports that concerns about neglect of the personal care of the represented person expressed by MH had not been able to be substantiated by the service providers who were providing direct services to the represented person or by the Aged Care Assessment Team (ACAT) staff member when he had investigated the allegations made. The adult children took issue with this, stating that they had reported their concerns to ACAT staff who said that they were no longer involved.
The guardian describes the admission to hospital in December 2008 as having 'circumvented' the process of dealing with accommodation for the represented person with the spouse. MH maintains that the represented person would not have been admitted to the hospital had there not been concern about her health on presentation to the hospital. PH and MH argue that the admission of their mother to hospital supports their contention that the health professionals believed the represented person to be neglected, and her overgrown toenails support the view that the neglect was longstanding.
When the represented person was admitted to hospital, the guardian says he accepted the respite bed offered but did not have authority (under the existing order) to consent to the permanent placement of the represented person. The spouse had consented to the permanent placement and signed the necessary documents for admission to care of the represented person shortly after she had moved there. The applicant says ‑ and it is not disputed ‑ that it was MH who located the nursing home to which the represented person was finally transferred.
By the time of the final hearing of the applications in June 2009, the represented person had been, since January 2009, in a permanent placement at a nursing home located in the town in which her spouse lives. All the parties say that she is now settled and that they are satisfied with the care she is receiving.
The applicant maintains that there is a need for a guardianship order as there are ongoing concerns about provision of medical care and the wellbeing of the represented person. He submits that he and his sister, MH, should be appointed as limited guardians to determine accommodation and medical treatment for the represented person. The applicant says they need to be appointed because 'the family' (being the adult children of the represented person) are 'cut out' of decision‑making for the represented person as they are neither the guardian nor the recognised next of kin.
The applicant contends that his sister has been 'proactive' in addressing the health care needs of the represented person, both prior to and since her admission to the nursing home, but that she has been hampered in her effectiveness because she is not the guardian. She expresses her frustration in raising concerns about the care of the represented person's artificial eye over a period of three weeks, during which time she believed that nothing had been done by the nursing home staff, and the eye socket was red and appeared infected. She had spoken with the staff and asked that the doctor be called but said she had not received feedback. She was not aware that an appointment had been made with a specialist to see her mother until informed by the spouse in the hearing in April 2009. The guardian reports that when he had visited the represented person on 14 January 2009, he had been assured by nursing home staff that the represented person had been referred to the doctor and that the spouse had consented to the treatment required. The spouse confirms that an ointment had been prescribed by the doctor for the represented person, that he had obtained it from the chemist and that it had been applied by staff at the nursing home.

In a effort to address MH's concerns about the lack of available information about the represented person's health, at the conclusion of the April 2009 hearing, the spouse gave an undertaking that he would write to the represented person's doctor and ask that MH be given information about her mother's significant health issues. A copy of that letter is before the Tribunal.
At the final hearing, MH raised further concerns about a flu injection which the represented person had been given by her doctor. MH says that she pursued the issue with the doctor, as the spouse had not taken action about it because she said he had said that he 'did not believe' in flu injections when she had spoken to him about it. The spouse denies being asked by the doctor or the nursing home staff to address the issue and could not remember if MH had raised it with him. MH states that since the letter was written by the spouse, she had spoken to the doctor about her mother's health issues, including the flu injection, which was subsequently given on the basis that the represented person had been given injections in previous years.
While the applicant states that the adult children are currently satisfied with the accommodation of the represented person, they do not know what the future holds, as the quality of care at the facility could change. The applicant says they have no immediate plans to relocate the represented person but considers that they should have that authority to review the care if necessary.
In respect of contact the represented person has with others, the applicant says they have no desire to restrict access, provided the relationships of the represented person are 'supportive' and 'don't cause upset' to her.
The spouse considers that there is no need for a guardian. He states that he is satisfied with the care the represented person is receiving at the nursing home and, while he acknowledges she has deteriorated, he believes she has 'good and bad days'. He accepts that the represented person can no longer be cared for by him at home. He states he visits her each day at the nursing home and describes positive relationships with the staff and other residents. He says the represented person's general practitioner of many years is still attending her since her admission, and he relies on the doctor and the nursing home staff for advice regarding the represented person's medication and care. He says that the doctor recently advised him that although her dementia was getting worse, the represented person was otherwise 'good'. He advises that both the nursing home staff and the doctor are aware that should the represented person become ill, she should be sent by ambulance to hospital for treatment.
Neither the applicant nor the spouse considers that a guardian is needed to determine the contact the represented person has with others. The delegated guardian challenges this. The guardian submits that the animosity between the spouse and the adult children, which he acknowledges has been less apparent since the admission of the represented person to the nursing home, 'lies just beneath the surface', and, in her best interests, the represented person remains in need of a guardian to monitor and manage the contact she has with others.
In the guardian's submission, the lack of communication between the parties about health issues of the represented person may also support the appointment of the Public Advocate as guardian for healthcare decision‑making. The guardian also states that the 'door remains ajar' in respect of accommodation decision‑making because of the stated views of the applicant regarding the possible need for accommodation decision‑making in the future, and because of this, this function should be included in any order made.
The distrust and lack of communication between the parties is apparent. The currently expressed views of the spouse that the adult children can visit the represented person at any time, and those of the applicant that the adult children do not want to restrict access to the represented person if appointed guardians, must be considered in light of the history of this matter. It is reported by the guardian that the spouse raised concerns about the represented person leaving the nursing home to go for a walk with MH. Similarly, the applicant's comments in the final hearing that, if he and MH were appointed guardians, there was no intention on their part to restrict access 'provided contacts were supportive' and 'didn't cause upset', can be considered against a background of a request by MH noted in the hospital notes, that staff monitor the spouse's 'verbal behaviour towards [the represented person] and if [the represented person] is upset[,] contact the daughter'.
Neither side appears to be willing to acknowledge the concern each has for the represented person. The adult children unfortunately appear not to have acknowledged the personal difficulty the spouse experienced in caring for the represented person due to her dementia and the distressing decision he faced in placing her permanently in care against her wishes. On the other hand, the spouse appears to see all the actions of the adult children as intrusive and a criticism of him rather than as motivated by concern for their mother. Actions on each side have contributed to the worsening of relationships ‑ the failure of the spouse to fully cooperate with service providers, despite his undertaking following the original hearing in 2008, and more recently, the presentation of the represented person to hospital in December 2008 (in circumstances which MH now concedes were not urgent) away from her home town and without the spouse being told until late at night when he was expecting her to be returned home after the visit ‑ have contributed to the animosity and distrust.
The admission of the represented person to a nursing home does not appear to have reduced the expressed concerns of the adult children about the represented person's care. An attempt to mediate the issues was unsuccessful.
The question is whether this ongoing conflict creates a need for the appointment of a guardian for the represented person.

Health care decision‑making

The applicant's submission is that the spouse should not continue in the role of healthcare decision‑maker because of what is said to have been his failures to make 'good' decisions for the represented person in the past and his inability to understand her condition. The failures identified by the applicant are said to be the decisions not to accept the level of home support services said to have been offered, and the delay in the represented person's admission to permanent care (between August 2008, when she was twice removed from respite care, and January 2009, when a placement was accepted). PH and MH say that the represented person's admission to hospital vindicates their assertion that the represented person was neglected by the spouse. The guardian's evidence of the reports of direct service providers and the evidence of the spouse refute this. While it might be accepted that the care of the represented person may have been difficult, suffering as she was from moderate dementia and incontinence, and that she may have benefitted from services such as podiatry and hairdressing at the time of her admission to hospital, the medical evidence does not support, as is asserted by the adult children, that the spouse neglected the represented person's care. The same notes relied on by the applicant show that an attempt was made to discharge the represented person to the care of the spouse some five days after her admission, which is not consistent with the assertion that she was believed to be at risk of neglect. Even if it was the case, as is argued, that the spouse has not made 'good decisions' in the past, it does not follow, in the changed circumstances where he is no longer the primary carer, that he should be removed as decision‑maker for the represented person.
On the face of it, at the present time, the represented person's health care needs are met. Her health is reported to be closely monitored by the nursing home staff and she has access to her doctor who knows her history and that of the family. Specialist medical care has been arranged. The guardian reports that the nursing home staff can work with the spouse regarding the care of the represented person. Her spouse can, and does, give consent to medical treatment on her behalf as her nearest relative (see s 119(3)(c)of the GA Act). Other than the flu injection which the represented person was given, it is not alleged that the spouse has refused any recommended treatment since her admission to care. The evidence about whether the spouse was asked to consent to the flu injection is disputed. The spouse says he would defer to the recommendation of the doctor but says the doctor did not raise it with him. It is not possible to reach a concluded view about it. The represented person's daughter, MH, has actively involved herself in advocating for her mother's health, and the doctor will now provide information and feedback to her about the represented person. The daughter successfully pursued the matter of the flu injection without her appointment as guardian.
While the continued anxieties of the adult children about their mother are acknowledged, this does not support the need for their appointment as her guardians for healthcare decision‑making to, in effect, remove her spouse from that role. This would be against the wishes of the represented person as she expressed them to the Tribunal in September 2008, and it has not been shown in the present circumstances that to give effect to those wishes would compromise her healthcare or otherwise not be in her best interests. The less restrictive alternatives as outlined above are sufficient to meet the needs of the represented person in this area of decision‑making such that a formal order is not required.

Services

With the move of the represented person to residential care, services such as podiatry and hairdressing are available within the facility. The guardian submits that there is no longer any need for this function in any order made and this is accepted by the parties and by the Tribunal.

Accommodation

All parties currently agree that the nursing home in which the represented person lives is appropriate and meets her needs. Although in the past he has resisted it, the spouse now confirms that the represented person requires nursing home care. The applicant maintains he and his sister, MH, need authority as guardians to review the represented person's care should the care situation change in the future. Because of the conflict between the spouse and the adult children, and their stated views about him, it is possible that the adult children would not give sufficient recognition to the supportive relationship of the spouse in the life of the represented person if they were called on to make such a decision in the future.
Although there is presently no conflict between the parties about where the represented person should live, because there is a risk that the animosity in the relationships might impact on any future consideration of her accommodation and care needs, the represented person is in need of a guardian who can bring independent judgment to this issue if and when this situation arises. This supports the appointment of the Public Advocate as decision‑maker for accommodation to ensure that all views are considered in the best interests of the represented person, should there be a need in the future to reconsider her placement. The appointment of an independent guardian with this function may provide sufficient certainty that each would be consulted about any proposed changes to the represented person's care that there may be a reduction in the conflict between the adult children and the spouse. A reduction in the conflict would be in her best interests since the guardian reports that she is aware of the tension between them.

Contact

The submission of the delegated guardian that there is a need for a guardian to manage the contact the represented person has with others is accepted. Unfortunately, the conflict between the adult children and the spouse, and their inability to communicate effectively about her needs, supports the appointment of an independent guardian in this area of decision‑making.
The appointment of the Public Advocate is the only possible appointment in the circumstances. Although they are committed to their mother and wish to maintain a role in her life, PH and MH are not suitable for appointment in the present circumstances because of the conflict with the spouse.
The independent guardian will ensure that decisions about who should have contact and the nature and extent of that contact will be made with the focus on the welfare of the represented person and her need to maintain supportive relationships, rather than on past conflicts.
Because the Pubic Advocate is appointed the guardian, she will have, through her delegated guardian, a capacity to monitor the represented person's wellbeing, and whether she considers it necessary to bring an application in the future for review of the order for the inclusion of additional functions.
The longstanding nature of the conflict between the spouse and adult children requires a long‑term guardianship order, and the order will be made for the order for the maximum period of five years.

Intervention in the EPA

Based on the material before the Tribunal, the EPA was executed in 2006 at the same time as a will of the represented person. It is undisputed that the EPA represented the choice of the represented person at that time.
The applicant says that his appointment, both as substitute donee in the represented person's EPA and as executor of her will and that of the spouse, indicates the trust they placed in him. By all accounts, it seems that there was a breakdown in the relationship between 2006, when these documents were executed, and 2008, when the first applications came before the Tribunal. The applicant says the conflict arose because the adult children of the represented person became increasingly concerned about her, and pressed her spouse to accept services, which he refused. The spouse had a different view about the source of the conflict at the first hearing. The applicant set out the background of that matter in an email to the Tribunal dated 20 August 2008. The background is not relevant to the current applications except that, by the time the matters first came before the Tribunal in September 2008, it appeared that the represented person and the spouse had become completely estranged from the applicant because of the conflict which had arisen within the family.
In an interview with an investigator from the Office of the Public Advocate in September 2008, the represented person maintained her unwillingness to have any contact with the applicant. At that time, a submission was made that if intervention in the EPA was to be considered, then substitution of the applicant as donee may not reflect the current wish of the represented person.
According to the guardian, the represented person did not maintain her unwillingness to have contact with the applicant and contact was arranged in December 2008 on the occasion the represented person was admitted to hospital.
Whatever the original reasons for the conflict, the positions of distrust and animosity are now well‑entrenched between the applicant and the spouse, such that it is accepted that they could not work together.
The EPA indicates that the applicant is to be the donee in substitution of the spouse as donee in the event of his death, incapacity or written wish that he no longer act as donee. It is not argued that these events have occurred, but that the current arrangement, namely, that, with the spouse as donee of the EPA, it would be unworkable if the applicant and his sister, MH, were appointed guardians. The applicant and MH do not maintain allegations asserted in written submissions to the Tribunal about the failure of the donee in any respect, but the older son, GH, asserts that the spouse, as donee, did not deal appropriately with the documentation associated with the represented person's admission to care. It is said the spouse made errors in the documentation and might do so in the future.
The investigator from the Office of the Public Advocate reports that she obtained up‑to‑date information on the finances, and that all the represented person's accounts had been paid in full and the nursing home account was in credit following the completion of the assets test carried out by Centrelink. It is reported that the investigation of the financial affairs of the represented person showed that they have been managed in her best interests. The manner of the investigation conducted by the Public Advocate is challenged by the applicant, but he raises no issues of financial mismanagement and agrees that the current arrangement of the spouse as the attorney is meeting the needs of the represented person.
Since the applicant and his sister, MH, have not been appointed guardians, this aspect of the application for intervention falls away. There are no substantiated allegations of mismanagement of the represented person's estate as conducted by the spouse as her attorney. The allegation that has been made by GH, even if it was found to be correct, falls far short of matters which require intervention in an EPA.
The EPA reflects the wishes of the represented person for the management of her affairs when it was executed, and she confirmed those wishes later at a hearing before the Tribunal. Without a clear indication that the EPA is not operating in her best interests, those wishes should be given effect to.
While the applicant has a proper interest as the son of the represented person and substitute donee of the EPA, nothing in the evidence or the submissions supports the exercise of the discretion to intervene as proposed.

Orders

1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live; and
(c)to determine what contact, if any, the represented person should have with others and the extent of that contact.

2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.This order is to be reviewed by 6 July 2014.
4.The application for intervention in an enduring power of attorney dated 15 September 2006 is dismissed.

I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER