RC - [2008] WASAT 180

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RC [2008] WASAT 180

MEMBER: MS F CHILD (MEMBER)
DR G HAMILTON (SENIOR SESSIONAL MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)

HEARD: 7 & 28 MARCH 2008

DELIVERED : 11 AUGUST 2008

FILE NO/S: GAA 173 of 2008
GAA 175 of 2008

BETWEEN: RC
Represented Person

Catchwords:

Guardianship and Administration Review of orders Represented person suffering acquired brain injury as a result of a stroke Diagnosis of lifethreatening illness Need for orders Continuing conflict between the adult children and the partner of the represented person Wishes of the represented person Independent decisionmaker needed to make personal decisions Public Advocate appointed limited guardian Son appointed administrator with directions for financial support of the represented person and his partner

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17, s 41, s 43(1), s 44, s 51, s 64(1), s 68, s 112(2), s 119(3)(b)

Result:

Appointments of guardian and administrator confirmed

Category: B

Representation:

Counsel:

Represented Person : Self-represented

Solicitors:

Represented Person : N/A

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

G v K [2007] WASC 319

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On review of orders made three months previously for an elderly man suffering acquired brain injury as a consequence of a stroke, the Tribunal reappointed the Public Advocate as guardian to make personal decisions, including where he was to live and the contact he should have with others, and to give consent to medical treatment and services on his behalf.
The Tribunal decided that an independent guardian was needed because of continuing conflict between the adult children of the man and his partner, and the risk that the conflict would impact on the decisions made about his care and treatment.
The Tribunal confirmed the appointment of the adult son of the man as the administrator, as the son was familiar with the management of the estate, which included a working farm. The Tribunal gave the administrator directions regarding the financial support of the man and his partner.

Background

These reasons relate to reviews by the Tribunal of orders made in respect of RC (represented person) in December 2007. The reviews were heard on 7 and 28 March 2008. Following the review, a guardianship order was made on 7 March 2008 and an administration order on 28 March 2008, and brief oral reasons were delivered at the conclusion of each hearing.
These written reasons are published at the request of the representative of the son of the represented person. Identifying information has been removed, consistent with the requirements of the Guardianship and Administration Act 1990 (WA) (GA Act) (see s 17 Sch 1(12)) and the practice of the Tribunal in respect of proceedings under that Act.
The represented person is a 73‑year‑old retired farmer. He lives in a country town, having lived most of his life in and around the area. His estate includes farming and property interests. His farm was operated by a share farmer and managed through a company of which both he and his son are directors. He has an adult son and daughter and grandchildren. He is divorced from the mother of his children. The represented person has lived with DD (partner) for 12 years, the last two in his current home.
In October 2007, the represented person suffered a stroke and was admitted to hospital in a nearby country town.
Applications were made by the son for his appointment as administrator and for his and his sister's appointment as guardians. The application for the appointment of an administrator was received by the Tribunal on 2 November 2007, and the application for the appointment of a guardian on 19 November 2007.
The administration application referred to a severe stroke suffered by the represented person and the need to make business decisions on his behalf. The guardianship application referred to the need to make medical treatment decisions and pay company expenses. Neither application refers to the represented person's partner in the section which invites the applicant to identify "interested parties".
Parties to proceedings under the GA Act are defined by s 3 to include the represented person or person in respect of whom an application is made, and to persons to whom notice is given and who are heard by the Tribunal. It is the obligation of the Tribunal to give notice to parties. Persons to whom the Tribunal must give notice pursuant to s 41 of the GA Act include the person for whom the application is made, the nearest relative of that person and any other person who, in the opinion of the executive officer, has a proper interest in the proceedings. In meeting the obligation to give notice to persons who have a proper interest in the proceedings, the Tribunal is heavily reliant on the information provided by the applicant.
In this case, a staff member of the Tribunal learnt of the existence of the partner from another person, and then referred this information to the son who confirmed the details of her address for the service of notices. The Tribunal subsequently notified her of the hearing of the applications.
The applications first came on for hearing before the Tribunal on 5 December 2007. Both in documents submitted for the hearing and in oral submissions made by the representative for the son, it was alleged that the partner was not the de facto partner of the represented person, but rather his housekeeper. It was further alleged that she had misappropriated funds of the represented person following his stroke and had in the past assaulted him. The allegations were denied by the partner. The allegations were put to the partner for the first time in the hearing, at which she was unrepresented.
The Tribunal heard that the partner was identified as the next of kin by the hospital in which the represented person had been treated. Significant conflict was said to exist between the represented person's son and daughter and the partner, and reports from the hospital staff involved in the care of the represented person advise that there had been "disruption to hospital routines" because of the conflict.
At the initial hearing of the applications on 5 December 2007, the Tribunal appointed the Public Advocate as limited guardian to make personal decisions on the represented person's behalf. This appointment was made due to the conflict between the partner and the adult children about where the represented person should be treated and whether rehabilitation was appropriate, the likelihood that decisions would be required, and the need for an objective decision‑maker to take into account the views of all parties.
As the represented person was the only signatory on bank accounts and there were outstanding accounts and business matters to be attended to, his son was appointed administrator of his estate. Directions were given to the administrator to maintain the existing arrangements for the partner. Given the nature of the estate, the Tribunal considered that, as the son was already involved as a director of the company which operated the farming enterprise, it was appropriate to appoint him.
The orders were made for review in three months, which allowed decisions to be made about the represented person's care but provided for an early review.
Following the original hearing, the represented person was transferred to another hospital, and further tests determined that he was suffering from cancer with secondary lesions in the liver. The guardian, following medical recommendations, determined that he should be treated palliatively for that condition.

Principles and legislative framework

On review of orders made under the GA Act, the Tribunal may confirm, amend or revoke an order.
In any proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4(2) of the GA Act.
Those principles provide that the primary concern of the Tribunal must be the best interests of any represented person; that every person shall be presumed to be capable of looking after their own health and safety, 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 an application for such orders is made, 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.
To make orders on review for the represented person, the Tribunal must be satisfied that the represented person is a person for whom the orders can be made (see s 64(1)(a) and s 43(1)(b) of the GA Act), that there is a need for the orders (s 64(1)(b) and s 43(1)(c) of the GA Act) and there are no less formal means by which the needs of the represented person can be met. If it decides those conditions are met, the Tribunal must determine who should be appointed in the roles of guardian and administrator.
In determining the appointment of an administrator, the Tribunal must consider whether the proposed appointee will act in the best interests of the represented person and is otherwise suitable to act as the administrator of the estate of the represented person (s 68(1) of the GA Act). To determine the suitability of a proposed administrator, the Tribunal shall take into account, as far as is possible, the compatibility of the proposed administrator with the represented person and the guardian of that person, the wishes of the represented person, and whether the proposed administrator will be able to perform the functions vested in him or her (s 68(3) of the GA Act).
As to who should be appointed guardian, the Tribunal is guided by the provisions of s 44 of the GA Act. The Tribunal must form the opinion that the proposed guardian will act in the best interests of the represented person, is not in a position where his or her interests conflict or may conflict with the person's interests, and is otherwise suitable to act as the person's guardian.
To decide the suitability of the proposed guardian; the desirability of preserving existing relationships within the family of a represented person; the compatibility of the proposed guardian with the represented person and the administrator (if any) of his 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).

Review

The orders under review are those made on 5 December 2007 by which the Public Advocate was appointed limited guardian for the represented person, to decide where he is to live and with whom he is to live, to consent to health care and to determine the services to which he should have access. An administration order also made on that day appoints the represented person's son as the plenary administrator of his estate. With that order, the administrator was directed not to dispose of assets, to meet the costs of fuel expenses of the partner of the represented person; to allow the partner to remain living in the property of the represented person, and to pay the outgoing expenses of the property, and to meet her reasonable living and travel expenses in the event she travelled to Perth to accompany the represented person for treatment.
At the review hearing, the guardian advised that the Public Advocate as guardian had decided that the represented person would, on his discharge from hospital, return to live in his home in the care of his partner, with support services arranged to assist with his care.
Prior to the review hearing, the son as the administrator had submitted documents as required by the Public Trustee in respect of the estate. Copies of those documents are before the Tribunal. The estate of the represented person as reported to the Public Trustee includes real property; the farm, rental units, his residence, stock, both personal and company bank accounts, shares and other assets.
The administrator has, since his appointment, undertaken a number of tasks for the management of the farm and the estate generally. His proposals for the future management of the estate are the continuation of the management of the farm with a live‑in caretaker, and the continuation of the existing rental properties to provide an income stream for the represented person.

Evidence and material before the Tribunal

The Tribunal has before it medical and other professional reports provided to it for both the original and review hearings, affidavits of and submissions made on behalf of the parties, a report from the Public Advocate as guardian of the represented person, documents filed by the administrator with the Public Trustee, and correspondence between the parties and from the Public Trustee. It also heard oral evidence and submissions from the guardian and the administrator, family members and the representatives of the children, counsel for the partner and from representatives of the Public Trustee.

Capacity

In determining whether the represented person is a person for whom orders can be made, the Tribunal relies on the medical evidence which was before the Tribunal when the orders were first made and on reports received since from Dr R, a consultant psycho‑geriatrician, dated 6 December 2007, Dr G, a specialist in rehabilitation medicine, dated 29 January 2008 and Dr K, a hospital medical officer, dated 8 February 2008. All the medical reports confirm that the represented person is unable to make decisions about his person or about his financial affairs.
For the review, the Tribunal also received, through the Office of the Public Advocate, notes of the assessment completed on 26 February 2008 by Ms KF, a speech pathologist, of the represented person's communication, and a report dated 13 February 2008 from the Director of Nursing of the hospital where the represented person is a patient.
The speech pathologist's assessment refers to:
[The represented person]'s severe receptive and expressive dysphasia is persistent, and although he has shown some improvement, particularly in understanding and expresses [sic] himself in routine and familiar contexts, auditory comprehension is limited.
At the end of the document, strategies are suggested by the speech pathologist to maximise the represented person's comprehension.
The Director of Nursing's report states:
De facto [DD] providing all nursing care whilst hospitalised. Dedicated care to [the represented person] and confident and competent in it. Obvious love /affection for each other. I believe other family members visit but not noted by myself, other than introduction to a brother. No family conflict evident during the stay.
On review, no one took issue with the determination of the Tribunal that the represented person is a person for whom both an administration and a guardianship order can be made, in that he is unable, by reason of a mental disability, of making reasonable judgments in respect of matters relating to all or any part of his estate (s 64)(1)(a) of the GA Act), and that he is incapable of looking after his own health and safety, unable to make reasonable judgments in matters relating to his person, and is in need of oversight, care and control in the interests of his own health and safety (s 43(1)(b) of the GA Act).

Need for orders

Administration

In determining the question of the need for orders, the parties agree that the represented person is in need of an administrator because he is unable to manage any aspect of his financial affairs himself; his estate is significant and his financial interests are relatively complex, including both property and farming interests. Based on the material before it, including the documents filed with the Public Trustee by the administrator, the Tribunal finds that the represented person is in need of an administrator of his estate pursuant to s 64(1)(b) of the GA Act.

Guardianship

The need for a guardianship order is also agreed by all parties.
A range of personal matters for the represented person are in issue: the son and daughter seek their appointment as guardians, and state that they are devoted to the represented person and only wish to play a role in his life to care for him within his extended family and to ensure his best interests are served; they say that they are suitable for appointment and the partner is not; they oppose the appointment of the partner as guardian and submit that she is a housekeeper or carer and not his partner. The partner says she has been the partner of the represented person for 12 years and that, had she and the represented person married, there would not be an issue as to who should make decisions for the represented person. She seeks her appointment as guardian, either solely, or jointly with the Public Advocate.
Fundamentally, there remains conflict between the partner and the adult children as to where the represented person should live following his discharge from hospital. The son and daughter propose that he live in Perth, with either of them, or in a "neutral location" (presumably a nursing home or hospital); the partner proposes that he return to live with her in their home in the country town where they lived prior to his admission to hospital following the stroke.
As noted, the appointed guardian advises that she had sought input from the partner, the adult children and the health professionals involved in the care of the represented person and had, prior to the review hearing, decided that the represented person should, on his discharge from hospital, return to his own home to be cared for by his partner with additional support services.
In her report, the Public Advocate sets out the actions taken by the guardian since the appointment was made, including consultation with specialists and consent to weekend leave from hospital for the represented person to his brother's home and to his own home in the care of his partner. The decisions made include the decision to inform the represented person of his diagnosis of cancer, and to consent to palliative care (to which the parties are said to be in agreement).
Although all the parties are opposed to nursing home care for the represented person, because of his diagnosis, there maybe a need in the future for a change in his accommodation because his care needs may change. Based on the history and the continuing conflict, the Tribunal considers that independent assessment of this will be needed.
The represented person will continue to need medical treatment decisions made on his behalf and there is the likelihood that decisions might need to be made about both medical treatment and palliative care.
Although the Tribunal was told that the partner was recognised as the "next of kin" by the hospital treating the represented person at the time the original orders were made, and she is within the hierarchy of persons who might give consent identified in s 119(3) of the GA Act (see s 119(3)(b)), and this might operate as a less restrictive alternative, the Tribunal does not consider this can operate effectively in this case. Prior to the appointment of the guardian, there was dispute between the adult children and the partner about the type of care and treatment the represented person should receive. This is noted in the reports of the Coordinator of Nursing Services and the hospital social worker which were before the member when the original orders were made. The conflict between the parties was evident at the review hearing. It has clearly not abated in the intervening months since the orders were made and, because of this and in consideration of the represented person's recent diagnosis, confirms the need for a formal appointment of a guardian for this purpose.

There is also a need to determine the services to which the represented person should have access. Because the guardian has decided that the represented person should be discharged to his home, in light of the conflict in the past about the types of services made available to the represented person, it is appropriate that these decisions are made by a guardian.
The contact the represented person has with others is another area of decision‑making. The adult children submit that the partner has tried to limit information provided to, and the contact the represented person has with, his children. This was denied by the partner, who said that she had shared information up until she learned of the guardianship application before the Tribunal. It is not entirely clear what occurred then, and it appears that the children are now informed about their father's condition. However, they have concerns that once he is discharged from hospital to the care of the partner, information will not be shared and their contact with him will be limited.
Whatever the position regarding attempts to exclude persons from decisions or to restrict contact with the represented person, it is apparent to the Tribunal that each side is suspicious of the other, and, given the intensity of the conflict between them, formal orders are required to provide for an independent guardian to determine the contact the represented person should have with others.
On review, the Tribunal declines to make directions to the guardian about the percentage of the represented person's time to be spent with his partner or his children as sought by the representative of the adult children. It is appropriate that the guardian make the decisions about contact, which might involve travel, based on her knowledge of the circumstances and medical needs of the represented person. Those needs may change quickly and cannot be predicted with any certainty. It is not appropriate or practical for the Tribunal, which is too far removed from the situation, to set a regime for contact which may become too burdensome for the represented person.
A guardian making decisions for a represented person is bound to make those decisions in the best interests of the represented person. Factors expanding on the meaning of "best interests" in this context are set out at s 51 of the GA Act, and include the maintenance of any supportive relationships the represented person has (s 51(2)(g)) and the maintenance of the represented person's familiar cultural, linguistic and religious environment (s 51(2)(h)). The delegated guardian, in her oral submissions before the Tribunal, outlined plans to facilitate a possible visit to Perth for the represented person.
As noted, it seems unlikely that the present conflict between his partner and his children will quickly resolve to the point where decisions for the represented person might be made by agreement between them. Although the conflict is said to be long‑standing, it seems the principal reason for the ongoing conflict is the lack of acceptance of the partner's role in the life of the represented person. While this role is unacknowledged, it would be unlikely that she would be involved in an appropriate way in any decisions about his care if the son and daughter were appointed guardians. Equally, because of the level of conflict, which has been exacerbated by the conduct of this matter before the Tribunal, there is a risk that, if no orders are made and the decisions about personal matters rest with the partner, the adult children might not be afforded an appropriate role in their father's life. For this reason, there is a need for the appointment of an independent guardian to make personal decisions for the represented person.

Wishes of the represented person

The principles of the GA Act set out in s 4(2) referred to earlier provide that the 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 gathered from the person's previous actions.
The represented person attended part of both the review hearings by videolink from the hospital where he was a patient, but he was not able to contribute verbally in the hearings.
The Tribunal is satisfied that the wishes of the represented person have been ascertained through the guardian who reported her findings to the hearing. The Tribunal is also able to gather his wishes from his previous actions.
The medical reports before the Tribunal refer to the represented person suffering "severe mixed dysphasia". This is explained in the letter of Dr R to the guardian as "difficulty in both comprehension and expression aspects of communication". Dr R states that he interviewed the represented person on 6 December 2007 ‑ both in English and in his first language ‑ and was of the opinion that the represented person was unable to communicate meaningfully.
The guardian at the review hearing reported that both the partner and the son of the represented person had expressed the view that there had been some improvement. This view had been supported by the staff at the hospital where he is now a patient. It was on this basis that the guardian considered that it was appropriate to explore whether he could give her any direction about the decisions which needed to be made. A doctor treating the represented person recommended that a speech pathologist had the relevant expertise to assess the represented person's communication. That assessment occurred and is referred to in the report from the guardian, and a copy of the assessment is before the Tribunal.
The guardian acknowledges that there had not been "total consistency" in the verbal responses expressed by the represented person in the assessment. In fact, it appears that, on assessment, the represented person's responses were consistent only half of the time. The guardian notes that the assessment was less than ideal as the represented person did not want to participate. The guardian states that the represented person was agreeable to speak to her and, through her communication with him, asserts that she was able to ascertain his wishes. She explained:
My process was to have a number of questions that had been printed from the computer in large print, in bold, short statements with yes/no answers. [The represented person] also has a yes/no board. I asked questions that were repeated in a different manner to see whether the same answer was responded to. It had been my view from the outset that [the represented person] needed to know the circumstances of his medical condition to be able to make decisions that were relevant.
I asked him questions about who was important in his life, who he wanted to see, the type of - how often he would want to see somebody - one of those members within his family. I put it to him, did he like Perth as a place? I also looked at whether he liked [the country town] and his home as a place. I put it to him that if he was in Perth he would have more time to see extended family, and ultimately the question was, I guess, in effect, did he choose to live in Perth with his extended family or did he choose to live in [the country town] in his own home, seeing his family not as regular [sic] and it was clear to me and the files documents the questions and the responses and the process, but it was evident to me that he understood the concept in which I was asking those questions. He had body language to indicate whether he was enthusiastic about that, whether he was ambivalent, you know, he had the shrugging of the shoulders, he had the ability to a point - he actually had the ability to read the questions - I actually asked one question, he gave me a response, I wrote the response. Later on in the interview, he took the piece of paper from me and scribbled out the response that he had made, and I re-put that question to him. So I am confident that I was able to elicit his wishes in those circumstances. [T:67 7 March 2008]
The representative of the children expresses the view that the represented person may be manipulated or his responses misunderstood. It is accepted that both these possibilities exist in some circumstances. Unfortunately, the communication of the represented person may be misunderstood because of the severity of his communication disability. The guardian refers in her report to his frustration at his inability to verbally expand on the responses he was indicating to her. We also accept that there may be a risk of manipulation present in communication with a vulnerable person, but we do not accept that this is the case in the communication undertaken by the guardian. The guardian is independent of the conflict between the parties and, in the view of the Tribunal, presented relevant information to the Tribunal - both orally and in her written report - in a careful, reasoned way, acknowledging the concerns of the parties but remaining focussed on the needs and interests of the represented person. The guardian initiated the speech pathologist's assessment and her communication with him, with the intent of seeking direction from the represented person in relation to the significant decisions which needed to be made, as she is bound to do pursuant to s 51(2)(e) of the GA Act.
We accept the evidence of the guardian in relation to this issue and do not accept that it is dangerous to place weight on it. Both the partner and the son, and staff of the hospital, noted that there has been improvement in the represented person, and although his communication is severely impaired, the speech pathologist notes improvement in routine and familiar concepts. The name of the town in which he lives, his home and his family are familiar concepts.
Even if we have placed undue weight on the evidence of the guardian that she was able, through her communication with him, to ascertain the wishes of the represented person regarding his living circumstances, the Tribunal may consider the wishes of the represented person as gathered from his past actions. The incapacity of the represented person and the Tribunal's obligation to attempt to ascertain his wishes are distinct matters which the Tribunal must address. (See G v K [2007] WASC 319 at [84] and [85]).
We note in this regard that it is uncontested that the represented person has lived most of his adult life in and around the area of the country town. He has built a home there for his retirement, providing accommodation for his children to visit him there. This is supported by the evidence of the cousin of the represented person, who expressed the view in the review hearing that the represented person had lived all of his life in the area around his current home, and that when they had visited Perth in their "younger days", they had "hated it".
It is also uncontested that the represented person has lived under the one roof with his partner for 12 years. In the interview with the guardian conducted prior to the review hearing, he confirmed his relationship with her.
We also accept that the represented person would wish to see his children and grandchildren, and that his extended family and his culture are of great significance to him.
The wishes of the represented person, which can be ascertained from both the interview as reported by the guardian and gathered from his past actions, are that he return to his home and familiar environment to live with and be cared for by his partner, and that he have access to and contact with his children. This remains the main area of dispute between the parties.

Suitable appointments

Guardianship

The Tribunal finds that none of the family members, including the partner, is suitable for appointment as guardian. That is not a finding about the personal characteristics of the individuals but is based on the current needs and circumstances of the represented person and the intensity of the conflict between his partner and his adult children. The conflict appears unfortunately to have been further entrenched by the hearings before the Tribunal because of the nature of the submissions made by the representative of the children to the Tribunal.
The Tribunal accepts the submission of the Public Advocate that the appointment of a family member or the partner may exacerbate the existing conflict.
The conflict the Tribunal has seen expressed could impact ‑ and may have already done so ‑ on the welfare of the represented person. Decisions made about his personal circumstances must be made independently so that the decisions are not contaminated by the animosity clearly felt by the parties.
Having considered all the material and having determined that there was no‑one suitable in the circumstances for appointment as guardian from within the family of the represented person, the Tribunal appoints the Public Advocate as limited guardian to determine where the represented person should live and with whom he should live, to consent to medical treatment and services on his behalf and to determine the contact he should have with others.
These functions address the matters in issue for the represented person, and so we find that a limited order with the functions referred to above is sufficient to meet his needs so that a plenary order is not necessary.
We should make clear that we do not accept the assertions made on behalf of the adult children about the character of the partner, and make no findings in relation to the number of allegations made which we consider were not supported by the evidence put before the Tribunal. The allegations did not form part of the finding that she was unsuitable for appointment as guardian, but only serve to highlight the nature of the conflict between the parties.
The submissions made by the representative for the children urge the Tribunal to make findings which amount to dishonesty on the part of the partner. There is insufficient in the material put to the Tribunal to make such findings, even if such a finding were relevant, since the partner does not seek her own appointment as administrator. In respect of the assertions of assault and the submissions that the represented person was at risk of physical harm from the partner on his release from hospital, these were assertions only and were not supported by the evidence. The submissions made that the partner was "massaging relationships" at the hospital and the purported attitude of the represented person to the partner within the "hierarchy" of the family give a flavour to the conduct of the matter before the Tribunal.
Included in the allegations made about the partner was that she had misappropriated funds of the represented person by diverting rental cheques to her own use and by cashing cheques from the company account. These allegations were made at the first hearing ‑ at which the partner was unrepresented ‑ and at the second hearing, but were not pursued in the final hearing. The basis for the allegations made was challenged by counsel for the partner. It was also said the partner had had little opportunity to respond to specificity of the allegations. We accept this to be the case. The matter could not be resolved because the evidence was incomplete, which was acknowledged by the representative for the son at the review hearing. The administrator was invited to make submissions in relation to an investigation of the management of the estate just prior to and after the represented person suffered the stroke, and to make proposals for directions that could be made to the Public Trustee for investigation of those matters. No submissions were made to that end, and the specific allegations of misappropriation were not pursued when the hearing was reconvened on 28 March 2008.
Although the allegation of misappropriation of funds of the represented person is a serious one, it is denied by the partner, and there is insufficient evidence before the Tribunal to make findings. Moreover, if the relationship between the represented person and the partner was accepted by the administrator, these allegations might be seen in a different light.
It was also alleged that the partner had received a pension as a single person when she asserted she had been the de facto partner of the represented person. The alleged misrepresentation of her circumstances to Centrelink, if true, is also a serious matter. These matters were not pursued before the Tribunal at the final hearing, and even if both are true, it is not clear what the Tribunal is to draw from the allegations, given the nature of the reviews being conducted. The partner did not pursue her initial proposal for her appointment to be the administrator of the estate. At the first review hearing, she initially supported the reappointment of the administrator ‑ the son of the represented person; however, later in the hearing, she expressed reservations about this appointment based on the tenor of the submissions made by the representative of the son. By the final hearing ‑ at which the submissions as to the character of the partner were repeated ‑ the Tribunal had already made orders for the appointment of the Public Advocate as guardian.

Administration

Following the adjournment of the review of the administration order on 7 March 2008, the parties were invited to negotiate appropriate orders that the Tribunal could make for the proper administration of the estate. The parties were alerted to the possibility of the appointment of the Public Trustee if the Tribunal determined that the administrator was not suitable for reappointment because the matter of financial support of the partner could not be resolved.
The reason that this was done was that, although the Tribunal was satisfied that the son as the administrator was well placed to deal with the farming and property interests of the represented person, it was not satisfied that the administrator could deal appropriately with the financial support of the partner and the represented person on his return home from hospital, as she would be living with him. This is based on the inability of the parties to negotiate and arrive at arrangements for financial support of the partner between December 2007 and March 2008.
At the reconvened review hearing, the delegated guardian expressed concern about the tension caused by the financial negotiations being undertaken between the representative of the administrator and the partner, and the impact that this might have on the represented person. The guardian submitted that the financial support of the partner should be linked to the significant relationship that the partner had with the represented person, and that it should only be reviewed if the relationship was terminated, rather than being linked to whether the partner was providing direct care in their home to the represented person, which was proposed on behalf of the administrator.
The guardian did, however, note that the family had visited the represented person and had stayed at his home with the partner present. This gives some hope to the possibility that, away from the hearing process, the conflict may reduce.
The guardian supports the reappointment of the son as administrator and states that she has been able to work with him. Her submission is that the appointment should be tested in the knowledge that it can be reviewed if necessary.
We accept that the administrator is an experienced businessman and is familiar with his father's estate and with the farm and the company, and is able to perform these functions as administrator. We also consider that if he were asked to express a view about this and was able to do so, the represented person would choose his son as the administrator of his estate. Such a choice would be consistent with his past practice; his son is a director and equal shareholder of the company, and has been involved in the past with his father's business, and the son and daughter are said to be the executors of their father's estate appointed in his last will.

For all these reasons, the son appears to be suitable for appointment, but for his management of the estate as it relates to the financial support of the partner. It is a concern that no payments were made to the partner of the represented person between December 2007 and the hearing in March 2008.
It was put in the correspondence between the parties, made available to the Tribunal at the review hearing, that this was on the basis that the payment of any allowance would be made subject to accounting for moneys alleged to have been misappropriated by the partner, or later (in the hearing), that the directions given by the Tribunal in December 2007 did not specifically direct the payment of financial support to the partner. Neither response is satisfactory in the circumstances.
The delegated guardian expresses concern that there is the lack of recognition of the role the partner had played in the life of the represented person and what this might mean for his ongoing care at home.
Although we do not find that the administrator has in any way neglected his obligations to his father, the financial support of the household in which the represented person will live on his discharge from hospital and that of the partner is an aspect of the management of the estate, and is within the responsibility of an administrator.
From the material before the Tribunal, including the guardian's and the professionals' reports, DD is recognised by the represented person as his partner; she is acknowledged in that role by the appointed guardian and, prior to the represented person's stroke, in the community in which they lived. A letter from the parish priest supports this view. The partner was recognised in the role as the represented person's "next of kin" by the health care professionals treating him after his stroke.
While we accept that there has been long‑standing ‑ perhaps years of ‑ conflict between the partner and the adult children as expressed in some detail in the historical evidence put to us by both the son and the daughter, the evidence as a whole supports a finding that a de facto relationship existed between the represented person and the partner.
Although both parties express a willingness to come to agreement about the financial support of the partner, because of the delay in achieving this, the Tribunal considers it necessary to give directions to the administrator in respect of this aspect of the estate.
Such directions are unusual, but because of the history of this matter, we consider that explicit directions to the plenary administrator for the financial support of the partner and the household should be made.
The Tribunal confirms the reappointment of the son as the administrator of the estate as it is satisfied that, with the directions given, he can perform the functions required for the management of the estate in the best interests of the represented person.

Orders

Orders made on 7 March 2008 are as follows:

Guardianship

1.The order be amended and a guardianship order in the following terms be substituted for it:
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;
(c)subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person;
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)to determine the services to which the represented person should have access.

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 7 March 2009.

Administration

1.The hearing is adjourned to 28 March 2008 at 10 am.
2.The administrator is to consult with the represented person's partner and her representatives to develop and file with the Tribunal no later than the close of business on 25 March 2008, and serve on the Public Advocate and the Public Trustee, proposals for the management of the estate of the represented person including:
(a)If the represented person's son is reappointed administrator of the estate of the represented person, a minute of draft directions to the administrator for the maintenance and support of the represented person and the partner of the represented person.
(b)If the Public Trustee is appointed limited administrator to manage part of the estate, proposals for:
(i)the management of the estate with the function to maintain and support the represented person and the partner of the represented person in circumstances both where the represented person lives with his partner or where for medical reasons they live apart, and
(ii)the identification of an income stream or assets over which the Public Trustee should have authority to enable the above function to be carried out.

3.A copy of the Public Advocate's report submitted for the hearing of 7 March 2008 is released to the Public Trustee pursuant to s 112(2) of the Guardianship and Administration Act 1990 (WA).

Orders made on 28 March 2008 are as follows:

Administration

1.The represented person's son be 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.In an effort to reduce the impact on the represented person of any conflict between his adult children and his partner, the administrator is directed:
(a)To pay a weekly allowance of $600 per week commencing from 8 March 2008 for the maintenance and support of the represented person and his partner. This payment is intended to meet their needs in respect of food and household supplies, motor vehicle costs other than fuel and repairs of the partner's vehicle, recreation costs and other miscellaneous living expenses. The initial payment for the period 8 March 2008 to 29 March 2008 be paid within 24 hours of the date of this order.
(b)To continue the existing arrangement in respect of the partner's fuel expenses such that these costs continue to be met by the represented person's estate and to meet costs of necessary service and repairs of the partner's vehicle.
(c)To pay all outgoing expenses related to the property at [address deleted], including utilities, from the represented person's estate.
(d)To meet the reasonable living and travel expenses incurred by the partner in the event that she were to travel to Perth, the represented person requires treatment or care in Perth or for respite, health or other personal reasons.
(e)Not to dispose of any assets of the represented person other than would occur in the normal course of the farming operation of [company name] without further order of the Tribunal.

The Tribunal gave the following directions in an effort to reduce the impact on the represented person of any conflict between his adult children and his partner.
The administrator was directed:
(a) to pay a weekly allowance of $600 per week commencing on 8 March 2008 for the maintenance and support of the represented person and the partner. This payment is intended to meet their needs in respect of food and household supplies, motor vehicle costs other than fuel and repairs of the partner's vehicle, recreation costs and other miscellaneous living expenses, the initial payment for the period 8 March 2008 to 29 March 2008 to be paid within 24 hours of the date of the order;
(b) to continue the existing arrangement in respect of the partner's fuel expenses, such that these costs continue to be met by the represented person's estate, and to meet the costs of necessary service and repairs of the partner's vehicle;
(c) to pay all outgoing expenses related to the property at [address deleted], including utilities, from the represented person's estate;
(d) to meet the reasonable living and travel expenses incurred by the partner in the event that she were to travel to Perth to assist the represented person, in the event the represented person requires treatment or care in Perth, or for respite health or other personal reasons;
(e) not to dispose of any assets of the represented person, other than would occur in the normal course of a farming operation of [company name], without further order of the Tribunal.
This order was to be reviewed on or before 7 March 2009.
I certify that this and the preceding [91] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER