PJJ
[2015] WASAT 109
•2 OCTOBER 2015
PJJ [2015] WASAT 109
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 109 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2186/2015 | 9 JULY 2015 | |
| Coram: | MS H LESLIE (MEMBER) | 2/10/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Applications for guardianship and administration and revocation of Enduring Power of Attorney dismissed | ||
| B | |||
| PDF Version |
| Parties: | PJJ |
Catchwords: | Guardianship Administration Presumption of capacity Enduring Power of Attorney Validity of Enduring Power of Attorney |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2)(b), s 43, s 64, s 64(1) |
Case References: | Nil |
Summary | DH, the holder of the 2006 Enduring Power of Attorney of PJJ, the proposed represented person, made application to the Tribunal seeking orders that the Enduring Power of Attorney be revoked and an independent guardian and administrator be appointed for PJJ. Upon a consideration of the medical evidence, the Tribunal was not satisfied that the presumption of capacity was displaced. The Tribunal accordingly dismissed the applications. The Tribunal did not revoke the Enduring Power of Attorney because it found that PJJ was competent to do this if, indeed, he had not already done so, and in view of the likely invalidity of the document. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PJJ [2015] WASAT 109 MEMBER : MS H LESLIE (MEMBER) HEARD : 9 JULY 2015 DELIVERED : 2 OCTOBER 2015 FILE NO/S : GAA 2186 of 2015
- GAA 2187 of 2015
- Proposed Represented Person
Catchwords:
Guardianship Administration - Presumption of capacity - Enduring Power of Attorney - Validity of Enduring Power of Attorney
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2)(b), s 43, s 64, s 64(1)
Result:
Applications for guardianship and administration and revocation of Enduring Power of Attorney dismissed
Summary of Tribunal's decision:
DH, the holder of the 2006 Enduring Power of Attorney of PJJ, the proposed represented person, made application to the Tribunal seeking orders that the Enduring Power of Attorney be revoked and an independent guardian and administrator be appointed for PJJ. Upon a consideration of the medical evidence, the Tribunal was not satisfied that the presumption of capacity was displaced. The Tribunal accordingly dismissed the applications. The Tribunal did not revoke the Enduring Power of Attorney because it found that PJJ was competent to do this if, indeed, he had not already done so, and in view of the likely invalidity of the document.
Category: B
Representation:
Counsel:
Proposed Represented Person : Nil
Solicitors:
Proposed Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 The application is made by DH, a friend of the proposed represented person (PJJ) who has known him for very many years. PJJ purported to appoint DH as his attorney under a document entitled 'Enduring Power of Attorney' executed by him and by DH. The document, on its face, is undated, although the acceptance date on the second page is 29 September 2006. This document will be referred to as 'EPA1'. Comments as to the significance of EPA1 will be made to later in these reasons. The application by DH sought orders for the appointment of an independent administrator and an independent guardian and the revocation of EPA1. In the application, DH claimed that PJJ was being neglected by his carer, BM, and that BM had taken financial advantage of PJJ.
2 PJJ was born in 1941. The following is largely uncontested. He came from Ireland as an 11yearold. PJJ lived in a Perth orphanage until going out to work at 15. He worked with horses as a trainer for most of his life. He has no family; he never married and has no children. He has been an alcoholic for most of his adult life. The degree to which this affected his decision-making capacity is unclear. From a young age he was good friends with the applicant's former husband, FH, who lived in the same orphanage and worked with PJJ for a number of years as a stablehand in their early years. They spent much time together outside of working hours then and in their later years. It is accepted that FH assisted PJJ informally with his day-to-day finances, particularly so he would not be taken advantage of when he was drinking. FH's claim is that PJJ 'has worked hard all his life and most people have taken advantage of him'. PJJ and FH remained friends until 2006 at which time they had a falling out. At that time, PJJ asked the applicant, DH, to continue to assist him, and both signed EPA1.
3 BM and PJJ met in about 2008 and became friends. PJJ had a stroke in 2012. BM has been living with PJJ and assisting in his care for a number of years. He became PJJ's attorney under a further Enduring Power of Attorney in 2011 (EPA2), unbeknownst to DH. DH has not needed to rely on EPA1 until her recent concerns in April 2015. Any assistance prior to then has been informal.
Presumption of capacity
4 Pursuant to s 4(2)(b) of the Guardianship and Administration Act 1990 (WA) (GA Act), every person is presumed to be capable of:
i) looking after his own health and safety;
ii) making reasonable judgments in respect of matters relating to his person;
iii) managing his own affairs; and
iv) making reasonable judgments in respect of matters relating to his estate,
- until the contrary is proved to the satisfaction of the State Administrative Tribunal (Tribunal).
5 In order to make a guardianship order, s 43(1)(b) of the GA Act requires that the Tribunal be satisfied that PJJ 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) is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
6 Under s 64(1) of the GA Act, to make an administration order, the Tribunal must be satisfied that a proposed represented person:
a) is unable (by reason of mental disability) to make judgments in respect of matters relating to all or any part of his estate.
Medical evidence
7 The Tribunal had before it a number of reports.
8 PJJ's general practitioner, Dr D, provided two reports to the Tribunal. In the first of his reports dated 27 May 2015 in the form of a short letter, he referred only to PJJ's alcoholism and to a mild iron deficiency anaemia which had been rapidly corrected with an iron supplement. The final paragraph of Dr D's report reads:
I have no further information at this point of time.
9 The report refers to an enclosed 'health summary' which was in fact not enclosed. Dr D's second report to the Tribunal, which was in the form of the Tribunal's doctor's guide, was dated 18 June 2015. In the report, Dr D indicated that he had been PJJ's general practitioner for about 12 years and that he was his regular medical attendant. He stated that PJJ suffered from a moderate cognitive impairment which was first recognised by Dr D three years previously. Dr D described the impairment as ‘progressive’ and stated that there had been a steady decline over the previous three years. Dr D stated that PJJ had no insight into his cognitive decline.
10 In answer to questions about capacity to make reasonable decisions, Dr D stated that PJJ was capable of making decisions in relation to his personal healthcare and was capable of making decisions in relation to his living situation, but was incapable of making decisions in relation to his financial affairs. Dr D indicated that he was 'not sure' whether PJJ could execute a new Enduring Power of Attorney. He indicated that PJJ could make only a limited contribution to any tribunal hearing.
11 It appears that prior to the preparation of this report, Dr D had referred PJJ for formal assessment by a specialist geriatrician. The Tribunal had the benefit of two reports from that geriatrician, Dr K, one being in the form of the Tribunal's doctor's guide (guide) and the other, a letter directed to Dr D. In the letter directed to Dr D dated 20 May 2015, amongst other things, Dr K noted, after setting out some history and his observations of PJJ, that '[PJJ] has mild dementia of vascular aetiology. Despite this, today he demonstrates capacity to make decisions regarding his personal property and welfare'.
12 In his guide to the Tribunal dated 3 July 2015, Dr K essentially confirmed those matters, noting a medical assessment of vascular dementia and recording that as a static condition, although commenting 'dementia may progress if he has further strokes however there has been no stroke since 2012'. Dr K answered 'yes capable' to all of the questions about PJJ's capacity to make reasonable decisions and stated '[PJJ] has not been kept informed of his bank balances in recent years as carer [BM] has control of his bank card but despite the above [PJJ] was able to articulate estimated regular incomes/outgoings'. Dr K indicated in the guide that he felt PJJ could execute a new Enduring Power of Attorney if he chose and that he could make a significant contribution to any tribunal hearing.
13 The only other clinical record that the Tribunal received was a document entitled 'Aged Care Client Record', which is a report of the assessment done by the Aged Care Assessment Team in May 2015. That record notes that PJJ had a stroke in 2012 which resulted in some physical difficulties. The record also notes 'vascular dementia – mild' and notes that PJJ has occasional short term memory problems and occasional confusion. It contains no other references to any mental impairment. The assessment document is dated 19 May 2015, although it appears that the assessment itself occurred on 8 May 2015.
The application
14 Concerns have been expressed by third parties, including the applicant, about neglect and financial abuse. It appears from the evidence that BM has clearly benefited financially from his friendship with PJJ. He appears to have had access to PJJ's finances with the agreement of PJJ, but without there being any particular accountability and also, at times, access to significant funds without the knowledge of PJJ. BM concedes as much. At the instigation of the applicant, the police have become involved but PJJ does not wish the matter taken any further. In addition, it appears that, in some respects, the care that PJJ has received at the hands of BM has been lacking, although there is no doubt that the two are close and are very fond of each other.
15 PJJ gave clear evidence in an articulate and rational way that he wished to continue to have BM reside with him and take care of him and assist him, both in relation to his daily living, his social activities and his finances. He appears to understand that in the past BM has taken advantage of his generosity in a financial sense – indeed, that he may have acted dishonestly and may have 'stolen' from him in a criminal sense. PJJ was clear that he did not wish anything to be done about this, that he accepted that BM understood he had done the wrong thing, and that he (PJJ) wished the two of them to continue on as before. It is noted that in the report of Dr K, there is reference to PJJ's isolation which Dr K suggests 'is likely due to a combination of fear of falling and a psychological dependence on [BM]'. Dr K went on to express the view that PJJ 'has the potential to achieve a higher level of independence, both in terms of selfcare and in mobilising longer distances outside his home'.
Findings and conclusion
16 Notwithstanding the concerns that have been raised and what the Tribunal accepts to have been the appropriately motivated intervention by third parties, the Tribunal is unable to interfere in PJJ's life and his choices unless the criteria under s 43 and s 64 of the GA Act abovementioned are met. In this instance, in relation to financial matters, the Tribunal is not satisfied that PJJ is unable, by reason of a mental disability, to make reasonable judgments with respect to matters relating to all or any part of his financial estate. In making that finding, the Tribunal relies upon the specialist opinion of Dr K. It accepts this evidence in preference to the views expressed by Dr D on the subject of financial capacity, notwithstanding the fact that Dr D has known PJJ for a much longer period. Dr D is a general practitioner and himself saw fit to seek expert advice on the capacity issue. Dr K is a geriatrician expert in old age medicine and PJJ was referred to him specifically for assessment in the context of the issues that the applicant had raised and the queries about PJJ's ability to make decisions for himself. Subsequent to receiving Dr K's advice, Dr D has expressed a different view in relation to the financial capacity question, as is his right. However, the Tribunal prefers the opinion of Dr K. Dr K's opinion is consistent with the information and assessments contained in the ACAT report, and is consistent with the presentation and demeanour of PJJ at the hearing. The presumption of capacity with respect to administration has not been displaced. That is not to say that the Tribunal endorses the behaviour of BM in relation to PJJ's money. He has clearly acted inappropriately, even dishonestly. But it is not for the Tribunal to superimpose its views on PJJ. The protective mechanisms of the GA Act are not there to protect people from choices competently made but which may to others appear unwise or mistaken. Competent people make errors of judgment and mistakes all the time. The jurisdiction of the Tribunal may only be engaged when a person can be shown to be demonstrably incapable of making reasonable decisions, not simply where they are making decisions capably with which others disagree.
17 Further, whatever might be the medical evidence as to capacity to make reasonable decisions in the management of his financial affairs, the medical evidence supports the conclusion that PJJ has the capacity to execute a new Enduring Power of Attorney, if he so chooses. Dr K says PJJ can. Dr D says he is unsure if PJJ has this capacity. Thus, even if the Tribunal were satisfied that PJJ was not able to manage his financial affairs himself, there is currently a less restrictive alternative available to him; namely, the execution of an Enduring Power of Attorney. PJJ has clearly indicated that he wishes BM to continue to look after his financial affairs. EPA2 is in place a copy of which was made available to the Tribunal. Under EPA2, PJJ has appointed BM to act for him. EPA2 is dated 29 September 2011. It postdates the applicant's EPA1. It appears to have been validly completed, executed and witnessed, and it has been lodged with the Department of Lands Administration.
18 There is, therefore, currently in existence a less restrictive alternative which appears to provide a financial management mechanism that is consistent with PJJ's current wishes. Were there any doubt as to capacity to manage, or if, upon a reconsideration of the events which have come to light as a result of these proceedings, PJJ were to have any concerns about EPA2 in BM's favour, he presently has the capacity to revoke EPA2 and make an alternate one appointing any other party. Whether PJJ wishes to do that, in the Tribunal's view, is a matter for him.
19 As to the guardianship application, the Tribunal is not satisfied that the criteria under s 43(1)(b) of the GA Act have been met. It is the Tribunal's view, given the medical evidence and the evidence generally, that, with assistance, PJJ is able to look after his own health and safety, is able to make reasonable judgments with respect to matters relating to his person, and is not in need of oversight, care or control in the interests of his own health and safety. This is reflected in the guides from both Dr D and Dr K. A guardianship order therefore cannot be made under s 43(1)(b)(ii) of the GA Act.
20 Although concerns have been expressed as to the level of assistance with personal care that PJJ is getting from BM, and his weight loss, state of dental health and his nutrition, before intervening against the wishes of PJJ, the Tribunal would have to be presented with a much grimmer picture. PJJ indicates that he has simple needs and that these are met by BM. He appears to receive appropriate medical oversight and care - a low iron condition was readily rectified by a short period of iron supplementation (tablets). It is not for the Tribunal or for others, however well meaning, to impose their own subjective standards in terms of living conditions, meals, menus, etc, particularly in the face of a specialist assessment that PJJ demonstrates capacity to make decisions about his personal welfare.
21 There was clear evidence that BM supports PJJ in many respects and has a genuine affection for him which is reciprocated. They have common interests and spend much time together. The relationship has been described as having elements of a father-son relationship to the emotional benefit of both. PJJ has made BM the beneficiary of his will. There is insufficient evidence to satisfy the Tribunal that PJJ's health and safety is at risk in his current domestic situation, or that he is in need of oversight, care or control in the interests of his own health and safety. He has assistance and it is the assistance he chooses for himself. He appears to understand that additional services can be arranged if he needs or wants them. In the circumstances, the Tribunal cannot, and does not, impose a guardianship order under s 43(1)(b)(i) or s 43(1)(b)(iii) of the GA Act.
22 For these reasons, the applications are dismissed.
23 What action PJJ chooses to take regarding the extant EPA is up to him. On the face of it, EPA2 continues. It is unclear if EPA1 has been formally revoked, notwithstanding PJJ's wish that the applicant cease her 'interference'. It is not necessarily the case that EPA2 implicitly revokes EPA1 in the absence of any written revocation. However, the copy of EPA1 provided to the Tribunal shows it to be an invalid power. Although appropriately signed and witnessed, it is undated. More importantly, in neither clause 4 on the first page nor in the acceptance clause on the second page has the required election been made to indicate whether the EPA is to become operative immediately upon signature, or only upon a future declaration by the Tribunal as to incapacity. The absence of this election constitutes a fatal flaw in the document and renders it invalid. In any event, what is clear is that the attorney nominated under EPA1, who is the applicant in this matter, has stepped back from the role and is not seeking to exercise any role under that purported power. No EPA revocation order is appropriate.
Orders
The Tribunal makes the following order:
1. The applications for guardianship and administration are dismissed.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS H LESLIE, MEMBER
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