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 services, and appointed her financial planner as the administrator of her estate.
The Tribunal found that that the expressed wish of the woman to continue to make gifts from her estate to members of her extended family was consistent with her past practice. Because gifting was the strongly expressed wish of the woman and would not impact on her own needs being met from her estate, the Tribunal authorised the administrator to make gifts to her family members. Remuneration was ordered to be paid to the administrator because of the size of the estate.

Introduction

These reasons relate to the determination of applications made for the appointment of a guardian and an administrator for JCA (represented person).
The applications were filed with the Tribunal on 3 January 2012 by RD, a social worker from the hospital where the represented person was then a patient.
The hearing of the applications was brought on urgently due to the applicant's concern that the represented person was at risk of financial abuse and of possibly discharging herself from hospital against medical advice. The matter was part heard on 6 January 2012 (first hearing) and adjourned for investigation by the Public Advocate and at the request of counsel for the represented person for the production of further professional evidence regarding the represented person's capacity to make decisions about her personal and financial affairs. At the first hearing, the represented person's financial planner was authorised by order, pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) (GA Act), to exercise all the powers and duties of a plenary administrator pending the determination of the applications.
The hearing was reconvened on 3 March 2012 and further evidence was put before the Tribunal for the represented person, including reports of assessments of the represented person's capacity from a clinical neuropsychologist and a consultant geriatrician. Attempts by counsel for the represented person to obtain further information from the geriatrician who had provided the report were unsuccessful, and the Tribunal reserved its decision on 26 March 2012 to determine the applications on the available evidence. Orders appointing the administrator and the guardian were made on 9 May 2012. Included in the administration order was an authority to make gifts to family members. The decision on remuneration of the administrator was reserved.
These written reasons set out the reasons for the decisions made and are produced pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA).

Legislation

To appoint a guardian and an administrator for a person for whom applications are made, the Tribunal must be satisfied that the legislation applies to that person.
Section 43 of the GA Act states:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(a)has attained the age of 18 years;
(b)is
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied.
…
(3)An appointment under subsection (1) or (2a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit.
(4)An order appointing a limited guardian shall specify the functions that are vested in the limited guardian under section 46.
Section 64 of the GA Act states:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 -
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint -
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
…
As provided in the sections referred to above, both are subject to principles in the legislation which are set out at s 4 of the GA Act, which states:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of -
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
When the Tribunal determines that a guardianship order and an administration order may be made, it must determine who should be appointed in those roles:
44. Who may be appointed guardian
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
68. Who may be appointed administrator
(1)An administrator (including a joint administrator) shall be
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
…
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
…

Background

The represented person is a retired farmer who worked as a teacher in her younger years. She is a widow and has no children, her only child being stillborn. She had two sisters, one dying some years ago, and she is reported to maintain a close relationship with her surviving sister and brotherinlaw. She is also said to maintain a close relationship with the daughters of her late sister (nieces) who live interstate. Another relative, MG, who proposes herself as guardian, maintains a supportive relationship and has assisted the represented person over some time with cleaning and home help.
The represented person is a very wealthy woman, having sold her farm some years ago. In past years, she has had the practice of giving gifts of money to her sister as a regular allowance and to some of her nieces in a more ad hoc way, although, in some instances, involving significant sums. The represented person is reported to be very independent, headstrong and unconventional, living very modestly despite her considerable wealth.
The represented person was admitted to hospital in late December 2011 with an acute infection. At that time, she was said to be confused with what was reported to be a resolving delirium. Testing was conducted at the hospital and, later, evidence of an underlying cognitive impairment was reported. Applications for the appointment of a guardian and an administrator were made to the Tribunal by the hospital social worker. The applications were said to be urgent because of the risk that the represented person would discharge herself against medical advice and as she was thought to be at significant risk of financial abuse due to memory loss and lack of insight. The application alleges that the represented person had been seen to 'write cheques [for family members] and have no knowledge of completing these actions'. Conflict between members of the family was identified, and some members of the family were said to be verbally aggressive with the represented person and with hospital staff, such that security staff were called to remove a family member.
In the material put before the Tribunal by members of the family, significant conflict is acknowledged to exist between the represented person's brotherinlaw and her nieces.

Issues to be determined

The issues to be determined in this matter are:
•Is the represented person a person for whom guardianship and administration orders may be made?
•Is she in need of a guardian and an administrator?
•Are there less restrictive means by which her needs can be met?
•If orders are to be made, who should be appointed in those roles?
•What functions should be included in the orders made?
•Should gifting be authorised from the represented person's estate and, if so, on what terms?
•Should the administrator be remunerated?
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.

Is the represented person a person for whom guardianship and administration orders may be made?

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.
He refers to his assessment conducted on 3 January 2012 and notes that the represented person is 'fiercely independent'.

Dr AF, consultant physician, assessed the represented person on 13 January 2012 and reported:
She has no insight into her cognitive problems. She says that there are no problems with her cognition. This is an indirect contradiction to the findings of the [Mini Mental State Examination] as listed below and the opinions of the other doctors who have assessed her at [location deleted] Hospital.
Another area of concern is with regards to her finances. As far as she tells me, she handles finances herself and is perfectly capable of doing her finances without any problems and does not want anyone else involved. She says that she has not given an Enduring Power of Attorney to anyone. … Her main assets are in an investment portfolio which was set up through a Financial Advisor. She claims that the value of the portfolio is about [information deleted] but cannot be more specific than this. She has no clear idea of what the asset allocation within the portfolio is … She does not know how much money she receives from her portfolios … Her best guess was that she may receive $10,000 per annum …
… MMSE today scored 20/30 …
Dr AF refers to the represented person's 'dementia' and states:
From the information I have been able to gather today, she has a very poor understanding of her financial affairs and lacks insight into her problems. …
The report of Ms RZ, a clinical neuropsychologist, who assessed the represented person over two sessions on 26 January 2012 and 29 January 2012, states that a number of tests were administered by her, with the following findings:
Current MMSE 22/30; represents a significant decline from 07.05.2010 (28/30)[.]
The represented person's attention span was reported as 'adequate', though 'likely represents a decline from premorbid levels'. It showed 'mild improvement' from the assessment conducted in hospital. However, the represented person's:
[w]orking memory (the ability to hold in mind and manipulate several pieces of information at once) was very weak. Struggled to do any task which had a working memory component (even fairly basic tasks such as counting backwards that she should have been able to manage). (Page 6 of RZ's report dated 14 February 2012 (February Report))
The represented person's memory was described as 'generally very poor'. The February Report goes on to state, at page 7:
Executive functions include a number of highlevel cognitive abilities that help guide and control behaviour, such as planning, mental flexibility, inhibition of inappropriate responses, and generation of novel responses and ideas. …
The represented person is reported to show '[e]vidence of significant … impairment' of her executive functions. A summary of cognitive results of the assessments by Ms RZ is given as basic attention, language and visual skills intact; though likely represent a decline from premorbid levels. Otherwise, evidence of generalised cognitive dysfunction including impaired working memory, processing speed, memory and executive functions.
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.
Ms RZ compares her findings with the hospital assessments, and, at page 11 of the February Report, notes:
It is evident both from the current assessment and those undertaken in [name deleted] Hospital between the [sic] 26.12.2011 and 16.01.2012, that [the represented person] has significant cognitive impairment. However, her more recent assessment shows her to be more cognisant of her affairs than she was when in hospital. This is likely to be the case for a number of reasons. Firstly, note is made of [the represented person] being acutely confused at the time of her admission. There appears to be reference to some hallucinations/delusions and on the [sic] 03.01.2012 a note in her medical record indicates that there may be a resolving delirium. As such, it would seem that she was acutely unwell at the time of her admission and potentially had an underlying delirium. As such, at least part of [the represented person]'s confusion, reduced insight and cognitive impairment would have been as a result of her acute confusional state. Further, she was most unhappy about being in hospital and distressed that people were questioning her capacity to manage and asking about what she considered to be her private business. This is likely to have made her reticent to disclose information, even if she was fully aware of it. When seen at a later date when more medically stable, in a more familiar environment (her sister's house), and after she had more time to begin to accept that she likely requires assistance to manage her affairs, she appears to be less confused and more cognisant of her affairs. When presented with simplified written information, in a slow and supportive manner[,] [the represented person] was able to understand key concepts of issues such as Enduring Power of Attorney and Administration. …
Ms RZ reports the following conclusions at pages 11 and 12 of the February Report:
Cognitively impaired suggestive of a neurodegenerative disorder. [The represented person] appears to be more cognisant since her hospital admission (26.12.201116.01.2012) and it is likely that in addition to an underlying dementia she was acutely confused. Nonetheless, her current MMSE of 22 is a significant drop from that in May 2010 (28/30) and there may still be some residual delirium/acute illness. Collectively, her memory impairment and executive dysfunction, raise significant concerns about her decision[]making capacity. Substitute decision[]makers are recommended.
In relation to lifestyle matters such as her medical treatment and living arrangements, she is considered able to execute an Enduring Power of Guardianship. She has consistently indicated that she would like this to be [MG]. Execution of such a document should be done asap if permitted by SAT.
With respect to her financial matters, on balance, she is considered to have the capacity to execute an Enduring Power of Attorney. It is noted that this is discrepant from the recommendations of her treating team at [name deleted] Hospital. It is felt that since her admission she is now more cognisant. Further, [the represented person] would [appear] to have been deliberately evasive as well as distressed at the time of her admission. Collectively, these factors would have impacted upon her ability to be receptive to information, process it adequately and respond appropriately. …
In response to a report of Dr RC dated 23 February 2012, Ms RZ notes at page 10 of her March Report, that:
… [The represented person] has been clear in stating that she wishes to execute an EPA. She has repeatedly indicated that she would appoint [both her lawyer and financial advisor]. Although she sometimes struggled to provide the details herself, she demonstrated an understanding of the extent and scope of the powers she would be assigning them when explained to her. Similarly, her ability to spontaneously provide details on the full extent, and the complexities, of her estate [has been] reduced. She, nonetheless, clearly demonstrates the knowledge that she is very wealthy and is able to support not only herself, but her family. …
…
It is noted that on the 23.02.12, Dr [RC], Consultant Geriatrician, concluded that [the represented person] did not have the capacity to appoint either an EPA or EPG. Much of the opinion and observations offered are similar to those provided in this report; namely[,] that her spontaneous recall of the details of her estate and explanation of the effect of an EPA and EPG are reduced. … my conclusions … are based upon actively explaining these documents to her and asking questions to assess her understanding.
… Thus, as noted, when explained slowly and simply, [the represented person] is considered to have the capacity to understand and validly execute both an EPA and EPG.
The report of Dr RC dated 23 February 2012 is also before the Tribunal regarding the represented person's capacity. Dr RC refers to the reports of Dr JS, the hospital notes, and the clinical neuropsychological report from Ms RZ. The conclusion reached regarding the represented person's capacity by Dr RC is consistent with opinions of Dr AF and Dr JS:
[The represented person] has a manifest cognitive deficit and this is consistent with medial temporal lobe dysfunction. I suspect she has Alzheimer's disease, brain imaging is needed but she refused to consider this.
She does not demonstrate sufficient knowledge of her assets or the effect of signing a power of attorney to validly execute an enduring power of attorney. She also does not appreciate the extent of her estate … Based on my hour with her, I feel that she is a person for whom an administration order could be made. …
… I do not think she has a capacity to validly execute an enduring power of guardianship. …
It is noted in his report that Dr AF could not give a final opinion on the represented person's ability to make decisions regarding place of residence and personal care, but he does record that the represented person lacks:
… insight into the need for assistance as she claims that she is fully independent on the ward which is in contradiction to some of the evidence presented to me, based on the history and examination and from the accompanying Nursing Assistant. …
This opinion regarding the represented person's lack of appreciation of her need for personal care assistance mirrors that of Dr JS.
Although the represented person believes that she is able to make her own decisions and manage her own affairs, all of the medical evidence supports the view that she is a person for whom orders may be made.
The Tribunal makes the findings that the represented person is a person for whom a guardian and an administrator can be appointed, in that, she is in need of oversight and care in the interests of her own health and safety, and is unable, by reason of a mental disability, to make reasonable judgments about her estate.

Need for orders for the appointment of an administrator and a guardian

Even where the Tribunal finds that a person is a person for whom orders can be made, it must be satisfied that there is a need for the appointment of a guardian and an administrator. There is an obligation to explore whether there are less restrictive alternatives to meet the needs of the represented person.
The need for the appointment of a guardian and an administrator for the represented person is said to arise because the applicant believes that, due to her memory impairments, the represented person was vulnerable to financial abuse and was at risk of discharging herself from hospital against medical advice.
In the course of the proceedings, the family members present at the hospital during the incidents which gave rise to the applications, gave an explanation of the events at the hospital, deny any inappropriate conduct and accuse the other side of the family of receiving transfers of funds from the represented person around that time. The brotherinlaw contends that the nieces inappropriately relied on an EPA that they knew to have been revoked.
It is not necessary to resolve the allegations made by family members, or to determine whether events as alleged to have occurred in the hospital by the applicant, to determine these applications. What is clear is that the represented person does have a cognitive impairment which is said by all the health professionals to be a progressive condition. There is distrust and conflict between at least two of the nieces and the brotherinlaw and his side of the family. There is suspicion from both sides about the motives of the other in their dealings with the represented person. Most family members have received gifts of money from the represented person, some in very large amounts, and want this to continue.
If the represented person is capable of executing an EPA or an enduring power of guardianship (EPG), these arrangements might provide for the management of her financial and personal affairs so that orders are not needed. The represented person does not have an existing EPA, having revoked at least one EPA in the past, it is said by the nieces, at the urging of her brotherinlaw.
The question in issue in this matter is whether the represented person is now capable of executing an EPA and an EPG.
Section 104(1a) and s 110B of the GA Act provide that an adult person who has 'full legal capacity' may create or make an EPA or an EPG.
Section 104(1a) and s 110B were inserted as amendments of the GA Act, which commenced in February 2010. Prior to that, the GA Act did not explicitly state that 'full legal capacity' was required for the execution of an EPA; however, it was assumed that the common law test for capacity to execute an instrument applied. That test was stated in Gibbons v Wright [1954] HCA 17, at [7], as:
… the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained. …
In proceedings under the GA Act, a standard guide for the production of medical reports is provided to medical practitioners. In that document, in the section entitled 'Capacity to make an Enduring Power of Attorney', the following is stated:
To execute an Enduring Power of Attorney (EPA) in a valid manner a person must be capable of understanding:
•the nature and extent of his/her estate;
•that the EPA will give the attorney complete authority to deal with the estate;
•that whilst competent the person may direct the attorney to act in a particular way and may revoke the power at will; and
•that the attorney's stewardship will not be monitored or audited as a matter of course, and therefore that in choosing attorney, the donor is placing a very high level of trust in the person or organisation chosen.
Ms RZ's opinion is that the represented person has the capacity to execute an EPA and an EPG if the concepts are explained carefully to her. This is in contrast to the reported opinions of Dr JS, Dr RF and Dr RC, who state that she is not capable of executing an EPA. Dr RC also gives the opinion that the represented person is not capable of making an EPG. Dr AF states that the represented person does not understand the extent of her estate and, by implication, this suggests she is not able to execute an EPA.
It is argued for the represented person that little weight can be given to the reports of Dr JS, Dr RF and Dr AF due to the lapse of time since the assessments and that, at the time, the represented person was in hospital and suffering an acute illness.
The Tribunal does not accept that the lapse of time since the reports were made undermines the opinions given, such that little weight should be given to them. Two of the doctors refer to a delirium and an underlying neurodegenerative disorder. Drs JS and AF acknowledge the issues which brought the represented person into hospital. It is noted that, in her report, Ms RZ reports some improvement since the represented person's discharge from hospital, but states 'it was marginal'. All of the professional reports refer to the represented person suffering a progressive neurodegenerative disorder.
Although counsel for the represented person arranged for the assessment of the represented person to be undertaken by Dr RC and states that his expertise is accepted, he submits that little weight should be given to the more recent report of Dr RC because of the circumstances surrounding the assessment. Those circumstances are said to have been that the assessment was a 'rushed appointment', that it was early in the morning on a very hot day and it was a long drive to the location of the assessment.
Although the Tribunal accepts Ms RZ's expertise in the administration of the testing administered by her, it does not accept the submission that the opinion of Ms RZ regarding the capacity of the represented person to execute an EPA should be preferred to the other professional evidence. The Tribunal does not accept that the assessment by Dr RC was 'rushed' as his report refers to 'an hour spent' with the represented person. Although this is not same amount of time spent by Ms RZ, the Tribunal is satisfied that this was sufficient for the purposes of the assessment; this is so, particularly since Dr RC refers to the impairments of the represented person as 'manifest'. The other circumstances of the assessment, including the length of the drive and the heat of the day, do not undermine, in the Tribunal's view, the acknowledged expert opinion given.
Ms RZ says that when the relevant information was presented slowly and simply to the represented person, the represented person was able to understand the concept of an EPA and paraphrase. She states that the represented person understood the extent of her estate and what she wanted to do with her money. Ms RZ was not able to verify the represented person's understanding of her estate, as she had not been provided with the necessary details of the estate. Ms RZ acknowledges that the represented person was vague about the purchase and value of her house, and agrees that the represented person underestimated the value of her estate by at least half.

Ms RZ suggests that the inaccuracies in the represented person's statements about her estate reflect either emotional distress at the time, or unwillingness to disclose private information to others. Ms RZ does concede that the represented person's 'ability to spontaneously provide the details on the full extent and the complexities of her estate is reduced' (T:16; 02.03.12). However, this statement is qualified because the represented person is said to have explained that she has never known the value of her estate, and it was something that she 'did not want to know'. This was confirmed by the financial planner at the hearing. He said that she had never been interested in money and if she had been asked 'the same question five or six years ago, she'd have probably given you the same answer she has now' (T:91; 02.03.12). The represented person said at the hearing that she had never asked about the extent of her estate because she did 'not want to be woken up in the middle of the night with a knife at my throat' (T:91; 02.03.12). She said that when the doctors asked her questions about her finances, she deliberately gave the wrong amounts. When questioned whether this was so, she said 'Probably. I'm capable of it' (T:91; 02.03.12).
Various explanations are given for the incomplete or incorrect information given by the represented person about her estate to a range of persons assessing her capacity. The explanation that the represented person was guarded when asked in hospital about disclosing financial information is plausible but, in the context of assessments arranged on her behalf to provide a second (in the case of Dr AF) and a third (in the case of Dr RC) opinion, intentional misinformation is less convincing.
Even if the proposition is accepted that the represented person need not have a complete appreciation of the extent of her estate to validly execute an EPA, the evidence does not support the view that the represented person fully understood or could retain the appreciation of the authority she was granting by an EPA or an EPG. The evidence regarding the represented person's working memory, which Ms RZ reports causes the represented person to struggle with 'even fairly basic tasks', supports this finding.
The represented person expressed at the hearing that she did not need assistance with management of her financial affairs. She expressed this view over time, for example, to Dr AF, when she is reported as having said 'she handles finances herself and is perfectly capable of doing her finances without any problems and does not want anyone else involved'. Although the represented person agrees to the assistance of her financial planner and of MG, she appears to understand that their authority will commence at a future date. As noted, all the professional evidence is that the represented person is not now able to manage financial matters. All the opinions, other than Dr AF, are consistent that the represented person no longer has capacity to manage her personal affairs. Her lack of appreciation and insight into this loss is relevant to the question of whether she can now capably make alternative arrangements for the management of her affairs, since she does not accept that she needs this assistance, despite all of the evidence.
The question of whether the represented person understood that, when she lost capacity she would no longer be able to direct the attorney, is unclear, because Ms RZ said that 'a feature' of the represented person was that she had a reluctance to hand over her affairs', but that 'she did come to an understanding that in fact she would be completely handing over control' (T:19; 02.03.12). This is in conflict with the represented person's own statements at the hearing in which she did not accept that she had lost capacity to manage her own affairs. During the hearing, she questioned why there was a concern about the future management of her affairs:
Why are people worrying about when I can no longer do something? (T:81; 02.03.12)
When the role of an administrator as a substitute decisionmaker was explained, she said 'But I feel I'm doing that adequately now' (T:81; 02.03.12).
Later in the hearing, when it was put to her that, by an EPA, she would be giving authority to manage her estate, she stated 'Well, I'm not giving it away for the moment' (T:90; 02.03.12).
Additionally, when asked regarding the represented person's capacity to both execute and therefore capably revoke an EPA, Ms RZ states that the represented person 'understood that she would not be able to change her mind about who she had appointed'. Her February Report goes on, at page 10, to note:
… (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).
When asked in the hearing, when the represented person would not be in a position to capably revoke an EPA, Ms RZ responded:
I think very, very soon. I don't know exactly how long, but I think the level of her cognitive impairment is quite significant and it certainly wouldn't be far in the future that she would not be even able to understand the concepts that we went through. (T:20; 02.03.12)
The Tribunal does not accept the submission that the question of the represented person's capacity to execute an EPA is simply a contest between the evidence of Ms RZ and Dr RC. The Tribunal considers that all the evidence taken as a whole, including the assessment and findings of Ms RZ, supports the finding that the represented person does not now have capacity to execute an EPA. While the Tribunal accepts that the represented person has consistently expressed the wish that her financial planner manage her financial affairs and MG assist her with personal decisionmaking, the Tribunal does not accept the submission that she has the full legal capacity required to execute either an EPA or an EPG.
The Tribunal finds that the represented person does not appreciate the extent of her estate and perhaps has never done so. She also does not appreciate the authority she would grant to an attorney. Her memory impairments, the executive dysfunction identified, and her lack of appreciation of her loss of capacity mean that she cannot now execute an EPA and, consequently, an administration order is needed.
Equally, while the represented person may understand the general nature of an EPG that is, someone to make personal decisions on her behalf after her loss of capacity she does not appreciate that any EPG executed by her would be in effect, since on the evidence before the Tribunal she has lost capacity to make reasonable judgments about her person, which she denies. Given this, she cannot be said to have the capacity necessary to execute that instrument (see s 110F of the GA Act).
The issue of the EPG was not pressed at the hearing. Indeed, the focus of the submissions before the Tribunal has been on the preservation of the ability of the represented person to make financial gifts to members of her family without interference by the Tribunal, which is the consequence of an administration order by operation of s 72(3) of the GA Act. Even if the Tribunal has reached the wrong conclusion on the question of the ability of the represented person to execute an EPA and an EPG, the primary obligation of the Tribunal must be the best interests of the represented person, and, to that end, the Tribunal finds that there is a need for formal orders because of the vulnerability of the represented person due to memory impairments, the conflict in the family, and some family members' financial dependence on her.
Having regard to this and the purpose of the GA Act, it is in the best interests of the represented person that an administration order be made.
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.
The represented person is assessed as requiring lowlevel care. It should be noted that a guardian acts in the best interests of the represented person if she acts in such a way to encourage the represented person to live in the general community and participate as much as possible in the life of the community (s 51(2)(b) of the GA Act). Although the represented person has indicated that she is 'tired' and wants to move to residential care, given the high value she places on her privacy and her independent personality, she may find the move to communal living a difficult adjustment. The represented person has more than sufficient financial resources to enable her to be cared for in her own home at a better stafftoresident ratio than could be provided to her in residential care. The options for her care should be carefully explored and, with input from an experienced case management service (which could be purchased on her behalf and which could be identified by the Public Advocate's private guardian's advice service), an appointed guardian may be able to arrange a package of care that is individualised and meets the represented person's care needs into the future. The represented person does need a guardian to advocate for her needs and wishes in this regard.
The appointment of a guardian for the represented person will also provide the necessary certainty and clarity for the represented person and for health professionals treating her, and will avoid the conflicts in information which arose in her last hospital admission.
Because of the conflict and poor communication between the nieces and the represented person's brotherinlaw (her sister not playing an active role because of her own health issues), a formal order is required to provide certainty as to who has authority to make treatment decisions on behalf of the represented person and to determine the services to which she should have access.

Appropriate appointments

Administrator

The represented person has been consistent throughout in her wish to have her financial planner manage her affairs.
The financial planner is an accountant who has worked for the represented person for about six years. At times, mainly when prompted, the represented person proposed her solicitor to act jointly with him. The represented person strongly expressed in the hearing her opposition to the appointment of the Public Trustee, as proposed by her nieces. Although the appointment of the financial planner as the administrator was initially opposed by the nieces on the basis that he had been introduced to the represented person by her brotherinlaw, their objections were later withdrawn. Counsel for the nieces said that it was accepted that the financial planner is 'able to manage his role, wear two hats, as her financial adviser and administrator' because he understood these roles quite well (T:83; 02.03.12).
The Public Advocate raises the issue of the relationship between the brotherinlaw and the financial planner as a potential source of conflict, but the financial planner submits that, although the brotherinlaw is a client of his firm, given the value of the represented person's estate, he does not consider that he is in a position of conflict. He denies any breach of confidentiality of the represented person's information to the brotherinlaw.
The appointment of the financial planner as the administrator immediately raises the issue of the purchase of financial planning services from himself, which would not be at arm's length. The financial planner described the basis for the charging of the represented person for financial management and for management of her share portfolio. He receives commissions from financial institutions to whom he brought the represented person's business, but these are included in the global fee charged.
In respect of the duties of an administrator, he said he found it difficult to estimate the time commitment of the administration of the estate ('on top of' his work for her as a financial planner), but believed it would amount to between $10,000 $20,000 per year, which might reduce over time (T:55; 02.03.12). He said that he considered his fees reasonable and that he would be surprised if another financial planner would charge less. He asserted that he had always acted in the represented person's best interests and that his fees could be made subject to a peer review to provide scrutiny.
The Tribunal finds that the financial planner is suitable for appointment as he is able to perform the functions as the administrator, given his qualifications and experience. It is the clear wish of the represented person that her financial planner manage her affairs, and he is willing and able to work cooperatively with the represented person and her appointed guardian.
The Tribunal accepts the submission of the Public Advocate, that there is no need for a joint appointment with the represented person's solicitor, with the consequence of additional fees being charged. An administrator is able, pursuant to s 76 of the GA Act, to employ agents, including a solicitor, should the need arise for legal advice or assistance.

Guardian

The represented person's expressed wish is that MG be her guardian.
The represented person says that she 'gets on with' MG and that she 'can talk to her'. Although the appointment of MG was initially opposed by the nieces on the basis that she was 'too close to the other side of the family', later in the hearing, the representative of the nieces accepted the suitability of MG as the appointed guardian if the Tribunal decided to make that appointment.
MG states that she is willing to communicate effectively with the family members who live outside of Western Australia and keep them informed about the represented person. MG asserts her commitment to the represented person over many years and states that she will act in her best interests without influence from family members. Although the conflict in the family is entrenched, MG appears to the Tribunal to have a genuine respect and affection for the represented person, and the Tribunal considers that, with the formal authority granted through her appointment, she will be an advocate for the best interests of the represented person. Her appointment was supported by the hospital social worker, who said:
I actually liaised with [MG] from the hospital. She was very keen to stay out of conflict with the other family members. She was very supportive in the process of trying to get [the represented person] into her home, if that's what she wanted, with services. She followed up with me continually rather than me having to follow up with her about her concerns that she wasn't managing very well and she's the one that tracked down a copy of the ACAT and fought respite for her.
In all of my dealings with her, she was very, very supportive of [the represented person]'s needs and appeared to me to be trying to find the best outcome for her. (T:65; 02.03.12)
Since the Tribunal finds MG suitable for appointment, it is not necessary to consider the appointment of the Public Advocate.

In the administration order made, should gifting be authorised and, if so, on what terms?

Section 72(3) of the GA Act provides that an administrator shall not, without authority of the Tribunal, make a payment or disposition of a charitable benevolent or ex gratia nature.
Section 71(5) of the GA Act provides that the Tribunal 'may take a liberal view of the best interests of the represented person' and:
… may, if the circumstances so require, empower an administrator to make a payment or enter into a transaction of a kind described in section 72(3) on behalf of the represented person.
If the gifts to family members are to continue, as proposed, the administrator requires authority to do so.
It is accepted that the continuation of gifting to her family members is a high priority for the represented person. She is a very wealthy woman and wants her family to benefit. During the hearing, the represented person spoke vehemently and movingly about her wish to support her family to meet their needs, and about her own experience of severe financial hardship as a young person. The impact of this has meant that she does not want any member of her family to want for 'a roof over their head, food on the table and a means of getting to work' (T:46; 02.03.12).
It is clear that the represented person wishes to continue to make gifts, and some family members are described as being financially dependent on her. In determining the way in which gifting should be authorised, the Tribunal considered closely the statements of the represented person as an indication of her wishes and her past actions.
In the hearing, when considering gifting into the future, the represented person said:
Well, I've got if I've been able to look after everybody the way that they've indicated they have needs, well, I shouldn't have to be looking to give them a lot more because we've met a lot of their needs.
…
And I think that if we're going on, I will be able to there's no need to be worrying about giving them more money
…
or increasing it. (T:58; 02.03.12)

When discussing her practice, the represented person said:
Now, I don't run around saying, 'I'm the most marvellous and most wealthiest person ever,' or anything else, but I have tried hard to make sure that the family is being even and equal … (T:61; 02.03.12)
but later she said:
… 'Oh, you know, so and so has got more than this one or that one,' and it's not right. It is more I never intended to divvy equal, equal, equal. That's not the way I operate, 'What do you need? How much do you need to get it? To get that through, what do you need it for?' Now, if that makes sense. That's the way it makes sense to me.
…
CHILD, MS: You didn't intend it to be absolutely equal.
[REPRESENTED PERSON]: No, never have.
CHILD, MS: You were responding to the needs.
[REPRESENTED PERSON]: The needs that they have.
CHILD, MS: Yes.
[REPRESENTED PERSON]: It comes under that word 'needs'. It's not 'I want it' it's 'I need it'. (T:6162; 02.03.12)
From the schedule prepared for the hearing of payments made by the represented person to members of the family, it is clear that she has made substantial gifts to family members, but distributions have not been equal. Additionally, as the Public Advocate points out, the list is probably an incomplete one, as many cheques were made to cash.
Counsel for the represented person's submission that the approach taken by the represented person and her past practices makes future gifting difficult is accepted. Although, obviously, the approach of the represented person, which she described as 'fair' without being equal in dollar terms, cannot be replicated, it is necessary to address this issue and make provision in the orders for gifting, as it is clearly a source of anxiety for the represented person. Reassurance that she continues to support her family financially is in her best interests.
Following the hearing, in a written submission, the administrator proposed that regular smaller payments to an identified group of the represented person's family be made each month. Since the amount proposed will have no impact on the ability of the administrator to address the needs of the represented person, the gifting proposed is authorised. The timing and the method of payment is at the discretion of the administrator. Any change to the amount of gifting authorised will require an application by the administrator to the Tribunal for review of the order.

Remuneration

The authority in the GA Act for the fixing of remuneration is set out at s 117, which provides:
(1)The State Administrative Tribunal may fix remuneration or a rate of remuneration and order that the same be paid to an administrator out of the estate of the represented person if the Tribunal considers that, because of the size or complexity of the estate or both, remuneration should be paid to the administrator.
(2)A guardian, and except as provided in subsection (1) an administrator, shall not receive remuneration for services rendered to the represented person.
…
Given the size of the represented person's estate, it is appropriate that remuneration be ordered.
The financial planner states that he charges fees to the represented person and also receives payments by way of the investments arranged by him. He states that these charges have been in place since the represented person became his client some six years ago. In the final hearing, he estimated his fees for administration, based on an estimate of the time commitment, at an amount of $10,000 or $20,000 per year.
The Tribunal has previously determined that time charging is not an appropriate way of assessing remuneration of an administrator because of the openended nature of that charging: see Re E (1993) 12 SR (WA) 246 at 251, where it was found that:
… charging by way of hourly charges is fundamentally problematical in terms of its open-ended nature so that it is likely to lead to an unknown quantum of cost. …
Although it is accepted that the fees the financial planner charges the represented person are proportionally less than other clients because of the size of her estate, his fees for those services are substantial. Accounting and other services are purchased for her. The fee arrangements were entered into while the represented person was capable. The remuneration of the administrator is separate to those fees.
The Tribunal authorises remuneration of the administrator fixed in an amount of $10,000 per annum exclusive of GST.
In the hearing, the administrator proposed that his fees as financial planner be subject to peer review to address the lack of independence in the purchase of financial planning services from himself, and so the Tribunal directs that the administrator submits to the Public Trustee, with the first set of accounts, a document which sets out all the fees charged as financial planner for the past five years, including any commissions received and a written opinion from a suitably qualified independent third party from the finance industry that the basis for calculation of fees to the represented person for financial planning services provided by him are within industry norms.

Orders

For the reasons above, the following orders were made on 9 May 2012:

Guardianship

On an application for the appointment of a guardian for the represented person before Member F Child on 9 May 2012, it is ordered that:
1.MG (address deleted) is 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, to make treatment decisions for the represented person; and
(d)To determine the services to which the represented person should have access.

2.This order is to be reviewed by 9 May 2017.

Administration

On an application for the appointment of an administrator for the represented person heard before Member F Child on 9 May 2012, it is ordered that:
1.DG (address deleted) is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The administrator is authorised to expend up to a total amount of $108,000 per annum on gifts on behalf of the represented person.
3.The decision on the rate of remuneration is reserved.
4.This order is to be reviewed by 9 May 2017.

It is further ordered as follows:
Remuneration of the administrator fixed in an amount of $10,000 per annum exclusive of GST.

I certify that this and the preceding [114] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER