PS and SS
[2005] WASAT 231
•29 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PS and SS [2005] WASAT 231
MEMBER: MS D DEAN (MEMBER)
HEARD: 7 JULY 2005
DELIVERED : 29 AUGUST 2005
FILE NO/S: GAA 1101 of 2005
BETWEEN: PS
Proposed Represented Person
AND
SS
Applicant
Catchwords:
Application for administration – Cognitive impairment and psychosis impair capacity – Invalid Enduring Power of Attorney
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 119(3)
Result:
The Public Trustee was appointed plenary administrator for five years
Category: B
Representation:
Counsel:
Proposed Represented Person : Self-represented
Applicant: Self-represented
Solicitors:
Proposed Represented Person : Self-represented
Applicant: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Background
On 30 June 2005, SS, a social worker at Bentley Elderly Mental Health Service, made an application to the State Administrative Tribunal for an Administration order in respect of PS. SS proposed that the Public Trustee be appointed as administrator.
PS is an elderly, divorced man with two adult children: a son whose whereabouts are unknown and a daughter, JS. PS has advanced Huntington's Disease, and is a resident of a high-care residential facility. According to information provided in the administration application, PS receives no visitors.
On 6 March 2002, PS executed an Enduring Power of Attorney (EPA) in favour of his daughter, JS. This EPA is invalid because par 4 of the document has not been appropriately completed.
According to the application, there is a history of concerns in relation to the invalid EPA and JS's attempts to withdraw her father's money from Brightwater facility where it is kept in trust. There is also a concern that, allegedly without proper authority, JS had her father's pension redirected from Brightwater trust fund. Centrelink refused Brightwater’s request for information about this process. JS informed the Tribunal that she had her father's pension redirected into an old bank account of her father's, because she was told by Sarah at Brightwater that, as her father was no longer a resident, she needed to redirect his pension. JS informed the Tribunal that this account had no funds prior to the deposit of the last pension cheque. She did not have a copy of the account statement to show the Tribunal.
Reports were provided to the Tribunal by:
Dr U, Bentley Elderly Mental Health Service (Bentley)
SS, social worker, Bentley
SH, Brightwater, and
an ACAT assessment report of March 2004.
These reports confirmed that PS has Huntington's Disease which is "relentlessly progressive" with no cure, and the illness is said to render him incapable of managing his own financial affairs.
The Tribunal approved shortening of service under s 41(3), as outlined in the section of this report dealing with legislation, because of the perceived risks, outlined in the application, to the estate of PS. These risks were the alleged attempt by JS to access PS's savings held in trust by Brightwater facility and the redirection of his pension without appropriate authority. The Tribunal considered there was sufficient evidence of risk that the matter needed to be dealt with urgently before the next pension day on 14 July 2005.
Legislation
Section 41(3)
The principles to be observed by the Tribunal when making determinations in relation to administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA). These principles are:
Section 4(2)
Section 64 of the Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for an administration order is made:
Section 64(1)(a)
In determining who may be appointed administrator the Tribunal addresses the following issues:
Section 68(1) and Section (3).
Evidence provided at the Hearing
The hearing was attended by PS's daughter, JS, his brother, TS, and social workers from the current and previous residential facilities caring for PS.
The Tribunal was informed that SS, the applicant, first met PS in April 2004 when he was admitted from another facility to Bentley Elderly Mental Health Service (Bentley), where SS is employed as a social worker. This admission was for the management of "difficult behaviours", and was the first of several admissions to Bentley for the same reason.
It was reported to the Tribunal that PS has had minimal support from family during his time in care. JS, his daughter, telephones occasionally but does not visit. There have been some family meetings attended by JS. It was alleged that contact with JS has increased since the refund of a significant sum of money from Centrelink into JS' trust account with Brightwater care facility.
The Tribunal was advised by JS that, prior to his admission to residential care, PS lived with JS and her family. Since PS' move into residential care, JS has visited rarely, for reasons which she did not wish to share with the parties at the hearing.
The Tribunal heard evidence about the invalid EPA and allegations, which were refuted by JS, that she discussed the possibility of changing the EPA to make it a valid document. JS informed the Tribunal that she had asked SS if there was anything that could be done to make the EPA valid. She said that this was not an attempt on her part to fraudulently alter the document but an attempt to learn what, if anything, could legally be done to make the document valid. JS assured the Tribunal that she had not attempted to use the invalid EPA, and advised that she had asked questions about its validity of the social worker because she was not cognisant of how these things worked.
The Tribunal also heard evidence that JS had requested large withdrawals from PS' trust funds with Brightwater, allegedly for the purchase of goods for PS. There was disagreement between the parties from the care facilities and JS about what these goods were. Because the EPA was considered invalid, Brightwater rejected the requests from JS for the funds.
JS informed the Tribunal that she was concerned about the fact that her father's clothes were limited and not suitable to his needs. This was denied by the social workers. JS showed the Tribunal photographs of her father's slippers that were wellworn with holes in the toes. JS said that she was keen to purchase new clothes for her father, as well as some items of furniture to make his surroundings more comfortable and pleasant.
JS expressed concern about the management of her father's move from one residential care facility to another without her being provided with accurate and honest advice about this. She had been advised when he first moved into Ellison House, a dementia-specific hostel, that he could remain there until he passed away. Instead, he had been moved permanently out of this comfortable accommodation into Bentley where he was waiting an appropriate long-term placement.
PS' brother spoke to the Tribunal and outlined his reasons for believing that PS' financial affairs should be managed by JS.
During the course of the hearing, JS provided the Tribunal with a written statement by her, a letter of reference from a friend, HM, and a report from MW, social worker, North Metro Health Service, outlining contacts between JS and the neurosciences unit in relation to JS' concerns about accommodation issues for her father. The Tribunal adjourned for a short time to read these documents.
On reconvening, the Tribunal heard from JS her understanding of the responsibilities of an administrator.
Findings and reasons
Capacity
With regard to PS' capacity to make reasoned decisions in relation to financial issues, the Tribunal considered the evidence provided in the application, and written reports from Dr U, SS, social worker, SH, social worker, and the ACAT assessment report. The Tribunal is satisfied, from the evidence provided in these written reports and the oral evidence provided at the hearing, that PS is a person for whom orders can be made.
Need
In making a determination about the need for an administration order, the Tribunal looked at the issue of the $9000 held in trust at Brightwater, and is satisfied that an administrator is needed to manage the process of transfer into an appropriate account for the provision of goods and services for PS. An administrator is also needed to manage the daytoday management of PS' estate.
Views and wishes of proposed represented person
Although the EPA executed by PS is not a valid document in that it cannot be used to administer his estate, it is, in the opinion of the Tribunal, an indication of PS' wishes with regard to the management of his estate. It is the Tribunal’s view that the EPA showed that PS trusted his daughter to manage his financial affairs at the time he executed the document.
Decision
From the information provided in the written reports and the material provided by the parties at the hearing, the Tribunal was satisfied that PS was unable to make reasoned decisions in respect of any aspect of his estate and was, therefore, in need of an administrator to take on the role of decision-maker in this regard.
In making a decision as to who should be appointed administrator, the Tribunal considered all the evidence provided at the hearing, including the concerns expressed by the professionals in relation to JS' current relationship with her father. The Tribunal accepted that JS had her father's best interests at heart as evidenced by the fact that she had a close and supportive relationship with him prior to his move into supported care and continued to monitor and be concerned about his accommodation and care needs.
The Tribunal accepted the evidence from JS that there had been some misunderstanding on the part of Brightwater about her intentions with regard to the expenditure of her father's money and the use of the invalid EPA, but the Tribunal was concerned that JS was not able to provide documentation at the hearing in relation to her father's bank account into which she said she deposited the Centrelink cheque. The Tribunal was also concerned that JS had not thought about how to access the money in her father's account to pay accounts on his behalf.
In considering the wishes of the represented person, the Tribunal addressed the issue of the invalid EPA, and took the fact that it had been executed by the represented person as evidence of his wishes in that regard.
JS proposed herself as administrator but indicated that she would accept the appointment of the Public Trustee if that was the decision of the Tribunal. Other parties at the hearing favoured the appointment of the Public Trustee.
Taking all of the above into account, the Tribunal was of the view that there was a need for the appointment of a competent, independent administrator to protect the represented person's estate and to apply it to meet his needs in both the short and long term.
Orders
The order of the Tribunal is:
1.That the Public Trustee be appointed plenary administrator of the estate of PS.
2.The Tribunal will commence a review of this order by 29 August 2007.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER
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