Re JCA; Ex Parte Rd - [2012] WASAT 123

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE JCA; EX PARTE RD [2012] WASAT 123

MEMBER: MS F CHILD (MEMBER)

HEARD: 6 JANUARY 2012 AND 2 MARCH 2012

DELIVERED : 15 JUNE 2012

FILE NO/S: GAA 13 of 2012
GAA 14 of 2012
EX PARTE
JCA
Represented Person
AND
RD
Interested Party

Catchwords:

Guardianship and administration - Applications for appointment of guardian and administrator - Cognitive impairment - Conflict in evidence whether able to execute enduring power of attorney and enduring power of guardianship - Conflict between family members - Guardian and administrator appointed - Need for oversight - Gifting authorised - Wishes of represented person - Expressed wishes and past practice - Remuneration of administrator ordered

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 51(2)(b), s 64, s 65, s 71(5), s 72(3), s 76, s 104(1a), s 110B, s 110F, s 117
State Administrative Tribunal Act 2004 (WA), s 77

Result:

Guardian appointed
Administrator appointed

Category: B

Representation:

Counsel:

Represented Person : Mr I Murie
Interested Party : Mr E Tan

Solicitors:

Represented Person : Muries Lawyers
Interested Party : Robertson Hayles Lawyers

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

Gibbons v Wright [1954] HCA 17
Re E (1993) 12 SR (WA)
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On application by a hospital social worker for the appointment of a guardian and an administrator for an elderly patient, the Tribunal determined that the woman was a person for whom orders could be made and that a guardian and administrator of her estate should be appointed.
During the woman's admission to hospital for treatment of an acute illness, it was revealed she had an underlying cognitive impairment. The application had been made because of a belief that the woman was at risk of financial exploitation against a background of conflict between branches of the woman's family.
Although the professional evidence before the Tribunal was consistent that the woman suffered a cognitive impairment and could no longer manage her own financial affairs, there was some conflict as to her capacity to execute an enduring power of attorney and to make personal decisions.
The Tribunal determined that the weight of the evidence was that the woman was no longer able to validly execute an enduring power of attorney and was therefore in need of an administrator of her estate. The Tribunal determined that, even if it was wrong regarding the question of capacity to execute an enduring power of attorney, the woman was in need of an administrator of her estate in order to ensure appropriate accountability and protection of her interests, given the family conflict and competing interests of family members.
Consistent with the expressed wishes of the woman, the Tribunal appointed a chosen relative as her guardian to make decisions about where she should live and about medical treatment and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re JCA; Ex Parte Rd

Details

AGLC: Re JCA; [2012] WASAT 123
Case: [2012] WASAT 123
Decision Date: 15 JUNE 2012

CaseChat Overview and Summary

In the matter of Re JCA; Ex Parte Rd, the parties involved were JCA, the represented person, and Rd, the applicant. The dispute centred around the need for the appointment of a guardian and an administrator for JCA due to her cognitive impairment, which raised concerns about her ability to manage her personal and financial affairs. The case was heard by the Guardianship and Administration Tribunal of Western Australia.

The primary legal issues the court had to address were whether JCA was capable of executing an enduring power of attorney and enduring power of guardianship, given her cognitive decline, and whether there was a need for the appointment of a guardian and an administrator to oversee her affairs. Additionally, the court needed to consider the conflicting evidence from family members regarding the appropriate course of action for JCA's care and the authorisation of gifting by JCA.

The court examined the medical evidence and reports from professionals, including Dr RF, Dr JS, and Dr AF, which unanimously supported the view that JCA's cognitive abilities had deteriorated, impairing her decision-making skills. The court also considered the neuropsychological assessment by Ms RZ, which highlighted the extent of JCA's memory impairment and executive dysfunction, further substantiating the need for a substitute decision-maker. Despite JCA's belief that she could manage her affairs, the court found that her cognitive impairments rendered her incapable of making informed decisions.

The court concluded that given JCA's inability to make reasoned decisions and her lack of insight into her impairments and personal care needs, the appointment of a guardian and an administrator was necessary. The court emphasised the importance of ensuring JCA's financial security and conserving her property and resources for her own needs and welfare. The court also noted JCA's expressed wishes to support her family and authorised certain gifting, while ordering the remuneration of the administrator.

The final orders included the appointment of an administrator to manage JCA's financial affairs with the Tribunal's oversight, the appointment of a guardian to provide oversight and care in the interests of JCA's health and safety, and the authorisation of specific gifting as per JCA's wishes, with the remuneration of the administrator to be determined by the Tribunal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Evidence and material before the Tribunal In addition to the application and reports filed by the social worker, the Tribunal has the following material before it:•Reports from Dr RF, a hospital medical officer and registrar to Dr HT, consultant geriatrician, dated 3 January 2012; Dr JS, a consultant psychiatrist, dated 13 February 2012; and Dr AF, a consultant physician, dated 13 January 2012.•A copy of the notes of the psychiatric assessment made by Dr JS and integrated progress notes of the hospital from 3 January 2012.•Primary carer and social work guide completed by the applicant.•A hospital discharge summary.•A report of the Public Advocate's investigation dated 29 February 2012.•A report of Ms RZ, clinical neuropsychologist, of her assessment of the represented person and additional material submitted in response to the report of Dr RC.•A report of Dr RC, consultant geriatrician, dated 23 February 2012.•Aged Care Assessment records (ACAT) dated 13 January 2012 and 1 March 2012.•Submissions and correspondence from counsel for the represented person, correspondence from her financial adviser, and letters and submissions from family members and their representatives. Although the represented person states that she believes that she is able to manage her own affairs, the professional evidence does not support this. All of the medical evidence before the Tribunal supports the view that the represented person has declined in her cognition and that her decisionmaking is impaired. Included with the original application is a medical report from Dr RF for consultant geriatrician, Dr HT. The report refers to the represented person's 'lack of insight, impaired shortterm memory'. The report states that the condition is a 'progressive one' and that the represented person is incapable of making decisions about her personal healthcare, her living situation and her financial affairs. This opinion is said to be based on an assessment by Dr JS, a psychiatrist, conducted on 3 January 2012, while the represented person was a patient in the hospital. A copy of the notes of that assessment is also before the Tribunal. Although his handwriting is difficult to read, it is possible to glean some information from the notes, including references to 'self neglect' prior to coming into hospital and to problems with personal care matters which the represented person did not appreciate. His assessment notes 'impaired short term memory and denial' (of problems or issues at home). He records 'resolving delirium, frontal lobe impairment? vascular dementia/Pick's disease'. In a later report dated 14 February 2012, Dr JS reports that the represented person's diagnosis is 'Vascular dementia'. He reports that it is a progressive condition and notes 'Likely to deteriorate with an unpredictable stepwise course. Likely to fluctuate day to day'. He states that he considers that the represented person is incapable of decisionmaking about her personal healthcare, her living situation and her financial affairs. He states:Not able to make informed decisions.…She appeared very vulnerable to financial exploitation and emotional abuse.She has impaired judgment and lacks insight into her dementia. She was reluctant to accept domiciliary support.

Decision

Reasons for decision

Ms RZ's report dated 1 March 2012 (March Report) states, at page 6:The obtained cognitive results, particularly the extent of her memory impairment and executive dysfunction, raise significant concerns regarding [the represented person]'s capacity to make reasoned decisions for herself. The nature and extent of her cognitive impairment is such that a substitute decision[-]maker for [all types of] decisions is strongly recommended. In the context of this, the … options of appointing both an EPA and EPG were [discussed with her]. (Emphasis in original) The February Report notes, at page 7, that the represented person '[a]ppeared broadly cognisant of her affairs. Stated she was "well[]heeled by anybody's standards". Noted that she did not flaunt this. Commented that you can "only spend it once"'. The March Report notes, at page 7, that the represented person 'was a bit vague regarding when she had purchased her house' and 'was uncertain of the exact value of the house, though estimated it to be around two million [dollars]'. It is very clearly stated, at page 7 of the March Report, that the represented person wishes to support her family:… I note that the values [of gifts of money] she gave me were somewhat lower than those given to me by her financial advisor, [name deleted]. However, she was extremely reluctant to disclose who she gave money [to], and especially reticent to disclose the amounts … The February Report notes, at pages 8 and 9, that the represented person was able to remember that she had written cheques while in hospital and that they were within the normal range of cheques made available to family members. The February Report goes on to say at page 9 that, in respect of a cheque written just prior to her admission to hospital, which was for $100,000, the represented person said that it was for $1,000. However, Ms RZ notes at the time of questioning:… she was most upset and I strongly suspect that had I questioned her over the amount, she would have been able to give me the correct amount. That is, the confusion in denomination is felt to reflect her emotional status and not be a genuine misunderstanding of the amount issued. … The represented person is said to consistently express the wish that her financial planner be her attorney, 'though struggled to provide his name' (page 8 of the March Report). Ms RZ refers, at page 10 of the February Report, to a discussion with the represented person regarding the execution of an enduring power of attorney (EPA):… She understood that she would not be able to change her mind about who she had appointed (given her current level of cognitive functioning I did not consider that she would have the capacity to revoke an EPA in the future and did not go into these details with her, and in my explanations had indicated that once she 'lost capacity' she would not be able to revoke the EPA). Ms RZ concludes, at page 11 of the February Report:… on balance she appears to understand the purpose of an EPA, the benefits and the risks. She appears to understand the extent of her estate and what she wishes to be done with her money. Collectively[,] she is felt to have the ability to validly sign an EPA.

Ratio Decidendi

Legal Principle Established

The objects of the GA Act are referred to by Heenan J in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] and [44] when considering the meaning of a provision in the GA Act:In this regard it seems essential to appreciate that the Guardianship and Administration Act is intended to 'provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs ... and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes' (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or illconsidered personal decisions or action, or by unscrupulous or illadvised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.These ends can be achieved, when it comes to dealings with the property and financial affairs of the person in need of assistance, by ensuring that any financial, property or commercial transactions which would, or might, jeopardise the financial security or interests of the disabled person, are only effective when performed by a properly appointed administrator and with the Board's [now the Tribunal's] consent. The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. In the main, these will be accomplished by conserving the resources and property of the person under administration for use to his or her own advantage or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration. The appointment of an administrator of the estate of the represented person will provide necessary oversight of the management of her financial affairs. In respect of the need for a guardian, the represented person's lack of insight into her impairments and her personal care needs means that she is in need of oversight and care in the interests of her own health and safety. The evidence from the professionals is that the represented person does not appreciate significant personal care matters. The weight of the medical opinion before the Tribunal is that she is not able to make decisions about her living situation or personal healthcare.