PH and NJM
[2011] WASAT 163
•18 OCTOBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PH and NJM [2011] WASAT 163
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 14 JULY 2011
DELIVERED : 18 OCTOBER 2011
FILE NO/S: GAA 240 of 2011
GAA 241 of 2011
BETWEEN: PH
Applicant
AND
NJM
Represented Person
Catchwords:
Guardianship Administration Enduring power of attorney Dispute over capacity Need for a guardian Need for an administrator Conflict between children of the represented person Public appointments Enduring powers of attorney revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(d), s 43, s 43(1)(b)(i), s 43(1)(b)(ii), s 43(1)(b)(iii), s 44, s 44(1), s 44(2), s 64, s 64(1)(a), s 68, s 68(1), s 68(3), s 97(1)(b)(i), s 97(1)(b)(ii), s 108(1a)(a), Pt 5, Div 3
Result:
The Public Advocate is appointed guardian and the Public Trustee is appointed administrator
Category: B
Representation:
Counsel:
Applicant: Mr P Haynes
Represented Person : Ms S Curthoys
Solicitors:
Applicant: Haynes Legal
Represented Person : Curthoys & Co
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Applications for guardianship and administration were made for an 86yearold woman who was diagnosed with Alzheimer's dementia.
Since the death of the woman's longterm partner, she had found it increasingly difficult to manage independently.
There had been some initial dispute about the nature and extent of the woman's cognitive impairment but by the time of the hearing of the applications it was generally accepted, particularly by her birth children and stepchildren, that she did not have the capacity to make important personal and financial decisions.
There was significant antagonism and conflict between the represented person's two birth children, a son and a daughter. This conflict was of long standing but had exacerbated in the circumstances of the woman's decline and the need for decisions to be made for her.
The antagonism between the son and the daughter was such that they seemed not to be able to agree on almost any aspect of the woman's life that required a significant decision to be made. Each had little or no trust in the actions or judgments of the other. At various times in her later life, the woman has relied upon and seemingly favoured the separate views of the daughter and the son. Whatever the reason or reasons for this having happened, the Tribunal found that because of the effects of her progressive dementia, the woman was no longer able to mediate the differing views and to come to an informed, independent view on important matters in her life.
The Tribunal was satisfied that although both the son and the daughter were of the genuine belief they each had the woman's interests at heart, their judgment was clouded by the contest that had developed between them over what it was the woman wanted and what was in her best interests.
The Tribunal decided to appoint the Public Advocate as the woman's guardian and the Public Trustee as her administrator.
Background
Applications for guardianship and administration orders have been made for NJM (represented person) an 86yearold woman who suffers from impaired cognition. She presently resides in an aged care facility.
The applications are made by AV, daughter of the represented person. The represented person has one other birth child, a son, JM, and a number of stepchildren.
Both AV and JM have a long standing conflictual relationship exacerbated by the relatively recent return from overseas of JM and the need for decisions to be made about the represented person's care and financial affairs.
This matter was first heard by way of a directions hearing on 25 February 2011. At the time of that hearing, the represented person had instructed a lawyer to represent her in the proceedings. A significant issue of contention was a diagnosis of advanced Alzheimer's dementia made by a hospital doctor in January 2011. This diagnosis was strongly disputed by the represented person. It was agreed that a specialist assessment be obtained. As it transpired, three specialist medical practitioners became involved at various times, the most recent being Dr RC, Consultant Geriatrician, in June 2011.
The applications were finally heard on 14 July 2011 and the decision reserved.
The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act)
Decision of the Tribunal
I have decided to appoint the Public Advocate as the represented person's limited guardian with the functions of deciding the represented person's accommodation, her medical treatment and deciding the contact arrangements she has with other persons.
I have decided to appoint the Public Trustee as the plenary administrator of the represented person's estate.
Both orders will be reviewed in two years.
The applications
According to AV, the situation for the represented person first became difficult upon the death of the represented person's longterm partner in July 2010 and the return soon after of JM after many years living overseas.
AV states that JM quickly suggested that the represented person stay with him for a time, to which AV agreed. She says she advised JM of the particular health problems and needs of the represented person but contends that he failed to care for her appropriately, which led to a hospital admission in January 2011. AV states the admission was serious and life threatening because the represented person was admitted with low sodium levels and high blood pressure. AV states that the represented person was discharged from hospital by JM against medical advice.
JM is said to have advised AV that he had found a nursing home for the represented person and that the represented person's property needed to be sold. AV says she was worried that JM was pushing to have the represented person's property sold. She says she arranged for a Registrar's Packet to be placed on the property by Landgate because:
… We were just protecting the property because my step-brothers and sister and I were worried that [JM] would sell the house and take off with the money and there would be no bond to keep [the represented person] in retirement. … (T:31, 14.7.11)
AV said in her application that she has been concerned for the represented person's finances as JM is in the process of building a stable complex on his property. In a letter accompanying the application she states:
I am concerned that [the represented person] may have been forced to withdraw money from her bank accounts.
In her oral evidence, AV states that she has been in telephone contact with the represented person. The represented person has said to her that she does not like her current accommodation (the facility organised by JM), and expresses a concern that if she does not cooperate then she will not be permitted to talk to AV.
AV states that the represented person has said that she is lonely in her current accommodation. The represented person wants to live in the facility which she first chose with AV so as to be close to her friends. The current accommodation, AV says, enables JM to have control over the represented person.
AV says she now accepts that the represented person's property needs to be sold.
AV is of the view that when she has regular contact with the represented person, the represented person is in better spirits and her wellbeing improves. She says that she has not been allowed communication with the represented person for nearly a week, and that, she says, is the reason the represented person is speaking against her (see The views and wishes of the represented person below).
AV believes that the represented person is being bullied by JM. The represented person has told her that if she goes against JM there will be consequences to AV and her family.
AV states that the represented person is also concerned that JM will increase her medication. AV says that in December 2010 JM hinted that the represented person might be given antidepressant medication, to which AV responded that the medication would lower her sodium levels and could kill her. AV says JM laughed at the suggestion.
AV says that the represented person made her and her stepbrother joint and several attorneys (with the late partner) in 1995 because the represented person knew that JM would eventually return from overseas and that, by making the Enduring Power of Attorney (EPA), she would avoid problems at a later time. AV says that it was the intention of the represented person and her late partner that should either of them predecease the other then it would be left to her and her stepbrother to assist the surviving partner.
AV states that in January 2011 she took the EPA to the represented person's bank to enable her to act on that authority. The bank expressed some concern at the form of the EPA, upon which AV says she asked the bank to stop funds from being withdrawn from the represented person's account as she was in hospital and temporarily impaired.
AV states that she also took the represented person to the bank in April 2011. The represented person was advised by the teller that JM was a cosignatory on her account. She was further advised that $5,000 had been withdrawn from her account and a cheque had been drawn for $1,900 to a firm of solicitors in February 2011. This upset the represented person. She said she had never given anyone the authority to act on her bank account and she removed JM as cosignatory.
AV says that the solicitor for the represented person later advised her that the $5,000 withdrawal was to assist the represented person's sister to visit from the United Kingdom and that the represented person had authorised the payment.
Although at one point in the hearing AV proposed herself as the represented person's administrator and submitted that her stepbrother should also be considered given he was appointed an attorney in the 1995 EPA, her final submission was that the Public Trustee be appointed administrator.
AV further submitted that the Public Advocate be appointed the represented person's guardian to decide her accommodation, what contact she has with others and to make her treatment decisions.
The evidence and submissions of JM
JM states that he fell out with AV 25 years ago over what he saw as her bullying of the represented person. He says that he made an effort to return to Perth after the death of the represented person's partner and found that the situation had not changed.
JM says that when the represented person first came to live with him it was after a discussion with AV and with her agreement. Both acknowledged that the represented person could not be left on her own and AV had said she could not have the represented person stay at her home. JM says it was his intention that he build a home on his property for the represented person and that that was what she wanted.
JM says that at about that time, the represented person had wanted AV to return a briefcase which contained important documents and some cash. AV did not comply with the request and later said that the represented person had no need for it because there was no need for her to change her will. AV said that if the represented person sold her property and gifted half of the proceeds to her together with half of the bank funds, then she (AV) would not have to downsize her property. JM says he was shocked by this.
JM states that in the six months the represented person lived with him, he took care of her without the help of AV or the represented person's stepchildren. This included taking her to all medical and hospital appointments.
JM says that he informed AV each time he took the represented person to a medical appointment. He says that any advice AV gave about medications and their possible effects on the represented person's sodium levels was only given after the occurrence of a medical event.
JM states that AV made no contact with the represented person during the time she lived with him.
JM says that he arranged for the represented person's sister to visit from the United Kingdom and when the represented person was admitted to hospital they would visit her every day. The represented person shared the hospital room with another patient and that person had telephoned JM at one time to raise a concern that AV was at the hospital waving documents in front of the represented person stating that if she did not sign, then she would not visit her. JM says this was later confirmed by the represented person.
JM states that AV wrongly assumed that the represented person's funds had disappeared. She was not aware that the represented person's funds had been placed in a separate account with its own passbook. JM states (at T:24):
So nobody has taken any money from [the represented person]. I don't need any money, and I think it's fairly obvious to anybody looking from the outside that my main concern for [the represented person] is a quality of life, that's all. I have no need in [sic] her estate. I don't need her house or her money. I wouldn't care if my sister had the whole lot. I don't need it. I just want [the represented person] to have a life, that's all, but everything points to the fact that my sister does not have [the represented person]'s best interests at heart, and it all comes down to estate, money and the house, and that's what it's all about. It's nothing about [the represented person]'s wellbeing. (T:24, 14.7.11)
JM states that in addition to her property, the represented person has about $46,000 in her retirement fund account and she has a savings account into which her pension is paid and from which her accommodation fees are paid. The represented person's pension has been significantly reduced because her property has not yet been sold. JM says he makes up the shortfall in her accommodation and other needs.
JM states that an accommodation bond of $250,000 is payable to the aged care facility in which the represented person lives. This can only be paid when the property is sold and, currently, interest of about $14,000 is being charged each six months the debt remains unpaid. JM says that he is currently meeting that cost.
JM states that he has not operated on the EPA executed in his favour by the represented person on 8 February 2011 (AV says she holds the original of this instrument, which has not been filed with Landgate).
JM says that he has been accused of stopping the late partner's family from seeing the represented person. He strongly denies this and says that he would encourage the family to continue the relationship with the represented person because of their ongoing mutual fondness.
JM states that no staff member at the accommodation facility has said that AV should not visit the represented person. It is only the represented person herself who says she does not wish to see her daughter.
JM proposes himself as the represented person's guardian and administrator; however, he submits that he would not be concerned if public appointments were made as long as the represented person's wishes are fulfilled.
Evidence and submissions of other parties
A number of persons close to the represented person gave evidence at the hearing.
MH, sister of the represented person, submits that AV cares only for herself, despite the represented person having provided her with everything she could give. She says that JM and his daughter have in recent times provided good care to the represented person.
JW, niece of the represented person, submits that either JM be appointed guardian and administrator for the represented person or public appointments be made. She says that when AV found out that the represented person had changed her will to exclude AV and JM as beneficiaries:
… that's when this started, when she put a caveat on the house and took all her bankcards, so I've got no doubt that it's very much moneyorientated. (T:37, 14.7.11)
RW, spouse of JW, submits that the represented person is capable of making her own decisions. He says that when the represented person's partner died, she no longer wanted to live in the property she formerly shared with him because of issues of grief. She became unwell after the partner's death and now requires care. RW says that the represented person is receiving the appropriate care in the facility in which she currently lives and is able to meet the costs of her care. He says that if her property is sold, the proceeds should not go to either AV or JM. RW submits that the Tribunal should make a decision to protect the represented person from anyone who would take her money.
DV, stepson of the represented person, states that the represented person has said that she does not want contact with the family any longer. He submits that is out of character for the represented person and is of the view that she was manipulated into making such a statement. He submits that as the represented person is no longer able to wholly make decisions for herself, then the person who is currently in the closest contact with her can have a big impact on her views and wishes. DV submits that the represented person should be looked after by somebody of independent mind, and proposed his brother, the 2005 joint attorney.
The stepson, the 2005 joint attorney, submits:
In the long run[,] I think it would probably be better if the [T]ribunal did it. That way we'll cease on both sides, because it's just killing everyone. (T:41, 14.7.11)
SV, spouse of AV, states his concern at what he sees as the slight on her character made by some of the parties. He says that the represented person was cared for by AV during times of significant ill health. SV submits that in the current circumstances, public appointments should be made for guardianship and administration.
AP, stepdaughter of the represented person, states that she has found the represented person to be very unhappy with her present accommodation.
The Public Advocate
The applications for guardianship and administration orders were referred to the Public Advocate by the Tribunal pursuant to s 97(1)(b)(ii) of the GA Act. The role of the Public Advocate in these proceedings is to advance the best interests of the represented person (s 97(1)(b)(i) of the GA Act).
The Public Advocate interviewed the represented person in May 2011 in the aged care facility in which she currently lives (see The views and wishes of the represented person below).
The Public Advocate submits that the represented person is in need of a guardian and an administrator of her estate. She submits that public appointments are warranted because there is a lack of communication between family members. She states that the guardian should be given the role of deciding where the represented person should live, either temporarily or permanently, and to decide what contact she should have with others. The Public Advocate submits that the represented person is able to make her own treatment decisions with assistance from her family. She notes that the represented person is on 'minimal' medications.
The views and wishes of the represented person
As stated, the Public Advocate reports that she interviewed the represented person in May of this year. At the interview, the represented person said, relevantly, that:
•She does not have dementia and has some memory problems only if she is not concentrating on the task at hand.
•The only medications she is prescribed are salt tablets for low sodium levels and medication for her ocular degeneration.
•She is currently happy where she is living (the aged care facility). She does not reside there permanently. Her son works away and when he returns, he takes her from the facility.
•Her old friends do not visit her at the aged care facility because of the distance required to travel; however, she has made some new friends at the facility.
•She does not want contact with her daughter (AV) or the family of her late partner because they are after her estate and want her to be placed in a nursing home (the Public Advocate comments in her written report that the represented person was unable to explain the basis upon which she made this statement).
•She is in receipt of the Australian and United Kingdom age pensions but is unsure of the amounts. She has a savings account and uses a cheque book to pay her bills except her care fees which are paid by direct debit.
•She has a three-bedroom property but is unsure of its value.
•She is able to manage her own financial affairs as she has always been careful with her money.
•She cannot remember how she met her solicitor but accepts that she has legal representation.
•She cannot remember the name of her previous general practitioner; she is seen to when necessary by the general practitioner who visits the aged care facility.
•She is not in need of a guardian and administrator as she is able to manage her own affairs.
The represented person has been legally represented in these proceedings. The submission through the legal representative is that it is accepted that guardianship and administration orders are needed and it is the wish of the represented person that her son, JM, be appointed.
It is submitted that the role of a guardian should be limited to ensure that the represented person is accommodated in a residence of her choosing and that she only has contact with those she prefers. She does not want to have any contact with her daughter. She can make her own medical decisions.
The represented person said at various points during the hearing:
•She is happy with the aged care facility and has developed some friendships. She understands the facility charges fees but she is paying those fees from her own money.
•She is not on any medication. She takes salt tablets and 'Lutein-Vision' for her ocular degeneration.
•When she was in hospital, her daughter wanted her to sign some forms which she refused (AV denies this).
•She wants to disown AV as her daughter because of the way she says AV has treated her. The represented person cites 'lots of reasons … over the years, lots of reasons.'
•She wants her son to manage her finances.
•She wants to spend the rest of her life peacefully and not be faced with 'all this hassle'.
The relevant legislation (Guardianship and Administration Act 1990)
4. Principles stated
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person’s previous actions.
43. Making of guardianship order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(a)has attained the age of 18 years;
(b)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,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied.
…
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.
64. Making of administration order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c) a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
(3)An appointment under subsection (1)
(a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b)may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given.
68. Who may be appointed administrator
(1)An administrator (including a joint administrator) shall be
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2)The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4)The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate 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 an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.
The question of the represented person's capacity
Early in these proceedings, the represented person challenged a diagnosis of advanced dementia made by a hospital medical officer when the represented person was an inpatient early in 2011. This led to further specialist assessments which are before the Tribunal.
The chronology of assessments by way of written reports is as follows:
19 January 2011 Dr KM, Hospital Medical Officer
The relevant diagnosis is advanced Alzheimer's disease. Dr KM states that the represented person 'has probably been on [the] dementia progressive pathway for 18 24 months'. Dr KM opines that the represented person is not capable of making reasonable decisions about her personal health care, living situation and financial affairs. She is said to now require full time nursing care.
21 February 2011 FN, Senior Social Worker for an Aged Care Assessment Team
FN visited the represented person on 21 February 2011. She observed memory loss and an ongoing recovery from delirium; however, the represented person presented as 'self determining and able to outline her assets and what/whom she wishes to bequeath to'. FN states that the represented person would require a capacity assessment by a medical practitioner but that 'it is my opinion she has capacity at this time.' FN reports that the represented person is angry with her daughter, AV, and does not want any further contact with her. She wants to live in the aged care facility. She wants her son, JM, to make decisions for her. FN states that she did not observe any evidence of the represented person being 'groomed' by JM to present him in a favourable light.
23 March 2011 Dr RW, Consultant Physician in Geriatric Medicine
Dr RW reviewed the represented person on 23 March 2011. He states that she requires assistance dressing and showering and has some occasional 'mild confusions'. After conducting an 'MMSE' [Folstein Mini Mental State Examination], Dr RW opines that the represented person does not have significant cognitive dysfunction and that she 'gave a good account of herself with respect to her social history and recent events'.
12 April 2011 Dr CC, Consultant Physician (the represented person had been transferred into his care on 21 January 2011)
Dr CC states that despite an improvement in the represented person's 'MMSE score', he has no doubt the represented person has Alzheimer's disease which is progressive and irreversible. Dr CC notes some irregularities in the represented person's reporting of history. He opines that it would be in her best interests for an administrator to be appointed.
17 June 2011 Dr RC, Consultant Geriatrician
Dr RC reviewed the represented person on 16 June 2011 and conducted cognitive testing. JM was present. Dr RC states that the represented person was not able to provide a coherent narrative of the sequence of events in the last year. He obtained that information from JM. Dr RC reports that JM said the represented person had relied upon her late partner significantly and it was clear that she could not live by herself. JM had been aware of the represented person's poor memory in the months prior to her partner's death. Dr RC states:
[The represented person] does display a cognitive deficit and she has very poor recall of recent events. She also has a limited knowledge of the value of her estate and has no knowledge of the nature of a power of attorney. The psychometric profile is consistent with medial temporal lobe dysfunction[,] and Alzheimer's pathology is the most likely explanation for this. However[,] I do not have access to any brain imaging and I am not sure if any scans have been done recently. Her presentation is quite typical of mild dementia and therefore I agree with Dr [CC]'s diagnosis as recorded in his letters of the 8[th] February and 12[th] April this year. Based on this conclusion, doubt must be cast on the validity of any documents [the represented person] has signed in the past 12 months. For the purposes of the [Tribunal proceedings,] [the represented person] has not demonstrated capacity to manage her financial affairs to me.
As already stated, the represented person, through her legal representative, submits that guardianship and administration orders are required. Of all the parties present at the hearing, only RW, spouse of a niece of the represented person, submits that she is capable of making her own decisions.
It is instructive to consider the specialist assessments.
It would appear that the diagnosis of advanced dementia by Dr KM in January 2011 was premature. However, it is clear from the assessments that, at least from that time, a dementia was emerging and that it has taken a progressive course. I accept that the most likely diagnosis is that of Alzheimer's disease.
Of the specialists whose reports are before the Tribunal, Dr CC has had the longest contact with the represented person. His assessment is supported by the most recent report of Dr RC. Given the progressive and irreversible nature of the represented person's illness, I place significant weight on the latest opinion of Dr RC.
It is common ground that the represented person can no longer live independently and this is supported by the evidence. She will continue to live in an aged care facility because she requires 24 hour care and supervision.
I am therefore satisfied that the represented person is now incapable of looking after her own health and safety and is in need of oversight and care (s 43(1)(b)(i) and s 43(1)(b)(iii) of the GA Act).
The represented person has, on the evidence, consistently stated to her legal representative, at least since early this year, that she wishes for JM to manage her affairs. She has strongly voiced her disapproval of her daughter, AV, and is reported not to want contact with her stepchildren. She confirmed her view of AV at the hearing.
The daughter says the represented person holds this view because she is influenced by JM, which JM disputes. The daughter also says that when she is able to speak with the represented person, a contrary view is expressed by her.
The concern I have with the evidence of JM and AV is that it appears to be affected by the deep antagonism they have about each other. I accept the undisputed evidence of the stepson, DV, when he states that it is out of character for the represented person to not want contact with her late partner's children. Given the progression of short term memory problems and increasing confusion that is attendant with a diagnosis of Alzheimer's dementia, I find that the views of the represented person are likely influenced by the views of the person who is closest to her at a particular time. It is for that reason I am satisfied that the represented person is no longer able to make reasonable judgments about significant personal decisions that need to be made (s 43(1)(b)(ii) of the GA Act). In my view, she is no longer capable of being able to fully consider, in an independent way, all the factors and points of view which a person takes into account when making a decision.
I am satisfied this also applies to the judgments the represented person is required to make about her financial affairs, and that this is a consequence of the progression of her Alzheimer's disease (s 64(1)(a) of the GA Act). Whilst her estate is not complex, important decisions about the sale of her property, the payment of the accommodation bond and the ongoing management of the balance of her estate are now tasks that are beyond her ability to deal with, evidenced by the fact that those tasks are currently under the direct control of JM.
Need for a guardian and administrator
It follows from the findings I have made about the represented person's capacity that she is in need of someone to make her personal and financial decisions.
In respect to the represented person's personal life, the evidence clearly shows that there are a number of contested areas, these being her longterm accommodation, the arrangements for her contact with others and decisions about her future medical needs.
In respect to the management of the represented person's estate, the need, other than ongoing financial administration, is to dispose of her property and pay her accommodation bond with the aged care facility.
In light of my findings, it is not open to me to choose either JM or AV (had she proposed herself) as the primary decisionmaker for the represented person. This is so despite what personal qualities each may otherwise be able to bring to the roles of guardian and administrator as reflected in the provisions of s 44(1), s 44(2) and s 68(1) and s 68(3) of the GA Act.
The antagonism between AV and JM is such that they seem not to be able to agree on almost any aspect of the represented person's life that requires a significant decision to be made. They have little or no trust in the actions or judgments of the other. At various times in her later life, the represented person has relied upon and seemingly favoured the separate views of AV and JM. Whatever the reason or reasons for this having happened, I have found that, because of the effects of her progressive dementia, the represented person is now not able to mediate the differing views and to come to an informed, independent view on important matters in her life. I am satisfied that although both AV and JM are of the genuine belief they each have the represented person's interests at heart, their judgment is clouded by the contest that has developed between them over what it is the represented person wants and what is in her best interests.
Sensible and constructive communication between AV and JM is nonexistent.
It has therefore been necessary, in the represented person's best interests, to override her current wish that JM be permitted to make decisions for her.
I have decided that it is in the represented person's current best interests for the guardianship and administration appointments to be held by the relevant public authorities, namely, the Public Advocate as guardian and the Public Trustee as administrator of the represented person's estate. It is through these appointments that the views of the represented person, AV, JM and the represented person's larger family can be appropriately accommodated.
To meet the needs of the represented person, it is sufficient that a limited guardianship order be made (s 4(2)(d) of the GA Act). I have already stated my view of the contested areas of decisionmaking and these functions will be given to the Public Advocate, namely, the represented person's accommodation, the arrangements for her contact with others (particularly given her seemingly out of character views about contact with AV and her stepchildren) and decisions about her future medical needs.
I have decided to give the Public Trustee plenary authority over the represented person's estate. This will enable the Public Trustee to make all the necessary decisions to consolidate and preserve her estate. In addition to selling the represented person's property to meet the cost of the accommodation bond, the Public Trustee will also need to settle with JM the debt that has arisen from expenditure he has made from his own funds on the represented person's behalf.
By making the administration order, the status of the existing EPAs is that their continued operation is inconsistent with the functions given to the Public Trustee. I therefore revoke the EPA executed by the represented person on 5 May 1995 in favour of her late partner, a stepson and AV, and the EPA executed by the represented person on 8 February 2011 in favour of JM (s 108(1a)(a) of the GA Act).
I have decided that both orders should be reviewed in two years in the hope, and somewhat guarded expectation, that the represented person's family will gather itself together with the help of the guardian and administrator, such that public appointments will not be needed indefinitely.
Orders
1.On the application for the appointment of a guardian for the represented person determined by Member J Mansveld on 10 October 2011, it is ordered that:
1)The Public Advocate, Level 1, 30 Terrace Road, East Perth, Western Australia, 6004, be appointed limited guardian of the represented person with the following functions:
i)to decide where the represented person is to live, whether permanently or temporarily;
ii)to decide with whom the represented person is to live;
iii)to determine what contact, if any, the represented person should have with others and the extent of that contact; and
iv)subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.
2)The order is to be reviewed by 10 October 2013.
2.On the application for the appointment of an administrator of the estate of the represented person determined by Member J Mansveld on 10 October 2011, it is ordered that:
1)The Public Trustee, 565 Hay Street, Perth, Western Australia, 6000, is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2)The Enduring Power of Attorney dated 5 May 1995 by which the represented person appointed (her late partner, a stepson and AV) to be her attorney be revoked.
3)The Enduring Power of Attorney dated 8 February 2011 by which the represented person appointed (JM) to be her attorney be revoked.
4)The order is to be reviewed by 10 October 2013.
I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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