RR - [2015] WASAT 142

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RR [2015] WASAT 142

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 3 NOVEMBER 2015

DELIVERED : 16 DECEMBER 2015

FILE NO/S: GAA 3128 of 2015
GAA 2130 of 2015

MATTER: RR
Represented Person

Catchwords:

Guardianship and administration Suitability to act as guardian Suitability to act as administrator Conflict of interest Ability to perform the functions of a guardian Complex estate Ability to perform the functions of an administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 64, s 65, s 68, s 69, s 71, s 84, s 97(1), s 110ZD

Result:

Public Advocate appointed as guardian
Public Trustee appointed as administrator

Summary of Tribunal's decision:

Applications for the appointment of a guardian and the appointment of an administrator were made in respect of an elderly woman who had been diagnosed with dementia and was residing in a nursing home.
The applications had been made by the nursing home because of a concern that the woman's daughter would attempt to remove her from the facility. It was the view of the nursing home that the woman required fulltime care and supervision, and the daughter had not provided any plan detailing how she would care for the woman.
The woman's spouse, who had been her carer and who managed her finances under an enduring power of attorney, had recently died.
The daughter had been the subject of allegations that she had been estranged from her parents and, because of her lifestyle, would potentially put the woman and her estate at risk.
The daughter had initially proposed herself to be appointed the guardian and administrator. She denied the allegations and said that although she had been in some conflict with her father, she had never been estranged from her mother.
The Tribunal was satisfied that there was sufficient material in the evidence to conclude that the daughter's life was currently very unstable and also that she lacked sufficient insight into the woman's care needs.
The Tribunal found that the daughter would not be able to perform the functions given to a guardian.
The Tribunal also found that the daughter, who had made a call on the woman's estate to meet her needs, was in a position where her interests might be in conflict with those of the woman.
The Tribunal therefore appointed the Public Advocate as the woman's guardian.
The woman's estate was large and had a number of complexities. The daughter wanted provision made from the woman's estate for her needs, in particular for her accommodation.
The Tribunal found that the daughter was in a position of a conflict of interest in respect to the woman's estate and also that she would not be able to deal with the complexities inherent in the management of the woman's financial affairs.
The Tribunal therefore appointed the Public Trustee as the woman's administrator.
The Tribunal accepted that the woman would have wanted the daughter to have stability and security in her life and authorised the administrator, at his discretion, to provide for the comforts and necessaries of the daughter from the woman's estate.

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

GC and PC [2014] WASAT 10
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Applications for guardianship and administration orders were made in July 2015 in respect of RR (represented person) by the facility manager of the nursing home in which the represented person resided.
The applications were made under the Guardianship and Administration Act 1990 (WA) (GA Act).
On 22 July 2015 the Tribunal referred the applications to the Public Advocate under s 97(1) of the GA Act requiring the Public Advocate to obtain the views and wishes of the represented person regarding the issues arising in the Tribunal proceedings and any other relevant matters.
On 4 August 2015 upon receiving a submission from the Public Advocate, the Tribunal made an order s 65 of the GA Act giving the Public Trustee the authority of a plenary administrator so as to protect and secure all of the represented person's estate.
An order under s 65 of the GA Act can be made when the Tribunal is satisfied that a person may be a person in respect of whom a declaration can be made under s 64 of the GA Act that they are in need of an administrator and it is necessary to make immediate provision for the protection of the person's estate.
The applications were first heard on 21 August 2015. The daughter of the represented person, NS (daughter), sought and was granted an adjournment on the undertakings that she give timely access to the represented person's property to the Public Trustee and that she not seek to remove the represented person from the nursing home during the course of the Tribunal proceedings.
On 22 September 2015 the daughter was granted a further adjournment on the same undertakings to enable her to seek legal representation.
The final hearing was held on 3 November 2015. Present at the hearing was the applicant, another representative of the nursing home, the daughter, friends of the represented person, a representative of the Public Trustee (Public Trustee) and a representative of the Public Advocate (Public Advocate).
The Public Advocate was appointed the represented person's limited guardian with the authority to make decisions about her accommodation, her medical treatment, and to determine the services to which the represented person should have access.
The order under s 65 of the GA Act was revoked and the Public Trustee was appointed the represented person's plenary administrator. The administrator was authorised, at its discretion, to make provision for the daughter from the estate of the represented person.
Both the guardianship and administration orders are set to be reviewed in five years: s 84 of the GA Act.
The following are the reasons for the Tribunal's decision.

The relevant legislation

The GA Act is often characterised as a form of protective legislation. It provides for the appointment of a guardian for personal decisionmaking and an administrator for financial decision-making in situations where a person has impaired cognition and who might therefore be at risk of making decisions contrary to their own best interests or be vulnerable to the decision-making of others. (Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43].)
Despite the determination that a person is in need of protection by the making of guardianship and administration orders, it should nonetheless not be forgotten that in making those orders, the person loses the right to make fundamental decisions which affect their lives.
It is important therefore to ensure that orders are only made when incapacity is found and need is determined.
In order to achieve this balance between protection and autonomy the GA Act establishes a process that the Tribunal must follow to get to a position where orders might be made. This process can be described as the need to respond to a number of questions in respect to the person for whom an application has been made, which questions are bound up with a set of principles that the Tribunal must observe in making its decisions: s 4(1) of the GA Act.
The first question to be resolved is that of the represented person's capacity. The starting point in the determination of that question is that there is a presumption of capacity ‑ namely, that the represented person is presumed capable of managing her personal and financial affairs until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
In GC and PC [2014] WASAT 10 at [36] the Full Tribunal stated:
… Because of the significant consequences for an individual of having their decisionmaking capacity removed from them and a substitute decision‑maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.
The particular provisions concerning capacity in the GA Act are s 43(1)(b) for guardianship and s 64(1)(a) for administration.
The effect of s 43 is that the Tribunal cannot consider appointing a guardian for the represented person unless it can be satisfied on the evidence that either she is incapable of looking after her own health and safety; is unable to make reasonable judgments about matters relating to her person, or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
The effect of s 64 of the GA Act is that the Tribunal cannot consider appointing an administrator of the estate of the represented person unless it can be satisfied on the evidence that by reason of a mental disability she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
'Mental disability' is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
The second question, if a finding of incapacity has been made, is whether the represented person is in need of guardianship and administration orders: s 43(1)(c) and s 64(1)(b) of the GA Act. The GA Act states that if the needs of the represented person can be met in a manner less restrictive of her freedom of decision and action then orders should not be made: s 4(4) of the GA Act.
Once the need for orders has been determined, the Tribunal must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be, and what review date should be set, given that orders must be reviewed at least once every five years: s 43(1)(d), s 44, s 68, s 69, s 71and s 84 of the GA Act.
As to the authority given to a guardian, the GA Act states that if a limited order is sufficient to meet the needs of the represented person then a plenary order should not be made: s 4(5) of the GA Act. Even if limited guardian and administrator orders are made, it is a requirement that the orders place the least restriction necessary on the represented person: s 4(6) of the GA Act.
The primary concern of the Tribunal is that of the best interests of the represented person, taking into account, to the extent possible, her views and wishes: s 4(2) and s 4(7) of the GA Act.

The represented person's capacity

In a report from the Aged Care Assessment Team from August 2013, the represented person is reported to have been given a diagnosis of Alzheimer's disease and to be regularly suffering from short‑term memory loss and occasional depressive symptoms. The represented person had scored 21/30 on a Mini Mental State Examination (MMSE), indicating a cognitive impairment. At the time of the assessment the represented person was still living with her now deceased spouse (spouse) who was her fulltime carer.
The represented person's general practitioner (GP) confirmed the diagnosis of Alzheimer's disease in a report from August 2015. The GP states that in an MMSE undertaken by an occupational therapist at the nursing home on 31 July 2015, the represented person scored 13/30. The opinion of the GP in his report is that the represented person is incapable in all areas of decisionmaking and is unable to make any contribution to the hearing.
In his oral evidence the GP states that the represented person was admitted to the nursing home on 20 January 2015. Given her diagnosis of dementia, she suffers memory loss and is disoriented and confused. The represented person is said to wander aimlessly in the nursing home and can, from time to time, be aggressive in her behaviour. The GP states that the represented person's dementia is a progressive condition and that she is wholly incapable of making her own decisions and has no insight into her care needs. She is said to require fulltime care.
The assessment of the GP is supported by the applicant, who states that the represented person is extremely confused and disoriented and that she requires support for her activities of daily living. The applicant states that the represented person requires fulltime care and that she requires two persons to assist her in her activities of daily living.
The applicant says that she is concerned that the daughter does not fully understand the extent of the represented person's needs.
The Public Advocate states that, in interviewing the represented person, she struggled with recalling information, appeared to be very confused and was unable to provide an informed view about matters put to her. She was unable to describe her estate. She said that she liked living at the nursing home but later said that she believed she was in her home. The represented person told the Public Advocate that she was aware of her daughter but believed that she did not visit very often because she had her own child to care for.
A friend of the represented person, JR, submits that the represented person cannot look after herself as she is in need of a carer with particular skills. He states that she is receiving professional care within the nursing home and although the represented person recognises him when he visits, she cannot initiate conversation. JR states that in his view, the represented person is otherwise in good health.
I am satisfied on the evidence that the represented person meets the requirements of s 43(1)(b)(i), (ii) and (iii) and s 64(1)(a) of the GA Act. She requires fulltime care and supervision, and because of the progression of her dementia (mental disability as defined in s 3 of the GA Act), she is now unable to make reasonable judgments about her personal and financial affairs.

The need for a guardian and an administrator, evidence and submissions

The applicant states that the applications for guardianship and administration orders were made soon after the death of the represented person's spouse. The spouse had been making decisions for the represented person and had her admitted to the nursing home in January 2015. He had been managing her estate as her attorney under an enduring power of attorney.
The applicant states that she had become concerned that the daughter, whom she believed was estranged from her parents, had moved into the represented person's property (family home) and was agitating for the represented person to be returned there. The applicant states that she was made aware of reports that the daughter had a history of drug misuse.
The applicant states that the daughter never provided the nursing home with any plan of care arrangements that she would put in place to care for the represented person in the family home. The daughter had simply insisted that she could care for the represented person at less cost than the nursing home.
The daughter states that she had been living in rural Western Australia and had moved in with her father to care for him during the latter stages of his terminal illness. She says there had been conflict over the years with her father but that she had never been estranged from the represented person.
In her initial evidence the daughter stated that the represented person had been placed in the nursing home against her wishes, was not receiving satisfactory care and had been asking to be allowed to return to the family home. The daughter states that she was supportive of the represented person's desire to be cared for in the family home and was willing to facilitate that process.
The daughter initially proposed herself as guardian and administrator for the represented person on the basis that she knows the represented person better than anyone. She said that she could manage the represented person's estate because in the past she had managed a business and, although currently on a pension income, was of the view that she was capable of performing the functions of an administrator.
In her later evidence the daughter states that she wants the represented person to spend some time at the family home – for example, two days a week ‑ and that she could care for the represented person on her own for that period of time. In the later evidence the daughter accepts that the represented person in all other respects requires care in a nursing home. In her later evidence she also states that she now does not oppose the appointment of the Public Trustee as the administrator of the represented person's estate, as long as she is given information that demonstrates that the estate is being managed appropriately.
The daughter denies any recent drug misuse and says that she has had to sacrifice her public housing accommodation in the process of caring for her father and, more recently, supporting the represented person.
The daughter submits that it is not the wish of the represented person for the family home to be sold. She states that she no longer has her own accommodation and has an expectation that provision be made from the represented person's estate to ensure that she has appropriate accommodation. She states that her father was abusive towards her and that she should receive compensation for that abuse.
The Tribunal received written submissions from the represented person's siblings in the United Kingdom after they had received contact from the daughter. Collectively they say that the daughter has a known drug addiction and has been estranged from her parents. They are supportive of the care currently given the represented person in the nursing home.
A written submission received from a sister of the represented person states that she visited the represented person and spouse three times in the past 10 years and stayed with them for significant periods during those visits. She says that she witnessed firsthand the interaction between the daughter and her parents. The sister submits that the daughter would not be able to cope with caring for the represented person. She says that the daughter has continually asked the parents for money over the years and that she had witnessed some of these requests. The sister says that the daughter has struggled with drug addiction since her early adult life.
The represented person's friend, JM, supports the appointment of another friend of the represented person, PK, as guardian and the Public Trustee as administrator, the latter because of the represented person's complex financial affairs.
Another friend of the represented person, JMR, states that she supports the represented person being cared for in a nursing home. However, she would like consideration to be given to the represented person being accommodated in what, in her view, would be a better quality nursing home with a single room and ensuite. She, too, supports the appointment of PK as guardian and the Public Trustee as administrator.
PK states that she would not consider proposing as the represented person's guardian because there would be too much conflict with the daughter. She supports the appointment of the Public Advocate as guardian and the Public Trustee as administrator.
The Tribunal received a submission from a hospital support worker (support worker) who had been providing assistance to the spouse in the course of his failing health. The support worker states that after making enquiries he does not support the daughter's wish to care for the represented person in the family home because, in his view, the represented person's care needs are now too high. The support worker submits that it is in the represented person's best interests for the daughter to have some stability in her life, and believes that the represented person would want the daughter to be in secure accommodation. He submits that any appointed administrator should sell the family home and purchase a new property that the daughter could live in at a reduced rental. The support worker states that the spouse had seriously considered such a proposal and he had asked the support worker to examine the logistics of such an arrangement shortly before his death.

The Tribunal received a submission from a community worker (community worker) who supports the daughter. She states that the daughter has had a very difficult time moving to Perth and helping her father. The community worker submits that the daughter demonstrated great care, love and understanding to her parents and made every effort on her low income to spend time with them each year. The daughter has now lost her accommodation. The community worker is of the understanding that it is the daughter's wish to bring the represented person to the family home to be in familiar surroundings and be cared for in that environment. The community worker further submits that the daughter should be compensated for the expenses she has incurred for all that she has done for her parents.
The Public Trustee is the executor of the spouse's will. The represented person is the beneficiary of the spouse's estate. The Public Trustee states that the winding up of the estate of the spouse is not yet complete and there remain bank shares of significant value still to be transferred to the represented person.
Upon receipt of the order under s 65 of the GA Act, the Public Trustee states that he inspected the family home. He says that he found that most drawers, cupboards and cabinets have been rifled through. Personal documents that appeared to be usually kept in a filing cabinet were strewn throughout the room. A number of banking documents had been removed and were mixed in a file belonging to the daughter with her own personal documents. An open jewellery box was noted with all items removed except for two small pieces of costume jewellery. The Public Trustee also found a large amount of strong Schedule 8 opioid medication boxes. None of the boxes had prescription labels (the daughter states that the medication was for the spouse for pain relief in the final stages of his illness). It has also been reported to the Public Trustee by the support worker, PK, and JM that the spouse had kept cash in the attic of the family home. The support worker advised the Public Trustee that in the past, substantial amounts of cash were held in the attic but most of that had been deposited in a bank account when the spouse consolidated his assets earlier in the year. The support worker is also reported to have advised the Public Trustee that wherever possible, the spouse had tried to keep the daughter away from the property, even contemplating buying her a property some distance away. The Public Trustee states that a large metal lockbox was found in the attic which contained some expensive power tools and porcelain items. It appeared the box has been forcibly broken open. No cash or other valuables were found in the attic.
The Public Trustee states that after discussions with the nursing home, it appeared that the spouse had not declared all of the joint assets for the calculation of the represented person's nursing home fees. This had resulted in the represented person now being assessed as a full fee paying resident as opposed to a subsidised resident. She is now required to pay a maximum refundable accommodation deposit of $200,000. The incomplete declaration of assets might also impact on the represented person's eligibility to receive the age pension.
The Public Trustee states that the family home is a strata property and is subject to a restrictive use covenant, such that the occupants of the units in the complex must have obtained the age of 55 years, or have retired from fulltime employment, or be the spouse or de facto partner of such a person.
The Public Trustee states that on or about 15 September 2015, the daughter presented at the front counter of the Public Trustee's office in a very agitated state. She is said to have advised that she had removed the represented person from the nursing home and was caring for her at home. She allegedly demanded the Public Trustee initiate accounts for her for a telephone and other services. She was eventually removed by security (the daughter denies that she was present at this incident and states that it might have been her daughter to whom the Public Trustee refers).
The Public Advocate supports the appointment of the Public Trustee as administrator of the represented person's estate and herself as guardian.

The need for a guardian and an administrator, the decision of the Tribunal

I am satisfied on the evidence that the represented person is in need of a guardian to make certain personal decisions, and an administrator to protect and manage her estate. She is manifestly incapable of making decisions on matters concerning her personal and financial affairs.
In my view the personal matters that require formal decision‑making authority are the following limited functions concerning the represented person's accommodation, support services and ongoing medical treatment. The GA Act is clear that a plenary guardian should not be appointed if, in the opinion of the Tribunal, the appointment of a limited guardian is sufficient to meet the needs of the represented person: s 4(5) of the GA Act.
The evidence suggests that the represented person's accommodation is not wholly resolved. One of the represented person's friends, JMR, proposes that the represented person be given the opportunity of living in a nursing home with more individual facilities. In addition, the daughter proposes that the represented person be permitted to stay with her on a regular basis in the family home.
If the represented person is able to spend some time at the family home with the daughter then the appropriate level of support services will also need to be determined.
Any medical treatment that the represented person requires must of course be subject to the appropriate lawful consent.
The daughter proposes herself as the represented person's guardian. She has, since the death of the spouse, been able to consent to the represented person's treatment under s 110ZD of the GA Act.
I am not satisfied however, that it is in the represented person's current best interests that the daughter be given decisionmaking authority.
There are many allegations in the evidence that the daughter is not effectively in control of her own life and, by extension, is not in a position to make decisions for the represented person. The daughter disputes these allegations.
What is not in dispute is that the daughter, at time of the hearing, was homeless but for being permitted by the Public Trustee, in his authority under s 65 of the GA Act, to live temporarily in the family home.
I am satisfied that there is sufficient material in the evidence to conclude that the daughter's life is currently very unstable and also that she lacks sufficient insight into the represented person's care needs; for example, stating that she could care for the mother in the family home on her own (even for short periods) when the evidence of the applicant, which I accept, is that the represented person requires two people to assist her in her activities of daily living and requires 24 hour supervision.
I am not satisfied that the daughter is currently suitable to be appointed the represented person's guardian. I am not satisfied, given the current instability in her life and the lack of insight into her mother's significant care needs, that she would act in the represented person's best interests or be able to perform the guardianship functions that I have already described: s 44(1)(a) and s 44(2)(d) of the GA Act.
The daughter's purported interest in the represented person's estate ‑ for example, her wish that the family home be retained and that provision be made for her from the represented person's estate ‑ also potentially places the daughter's interests in conflict with those of the represented person: s 44(1)(b) of the GA Act.
I am satisfied that it is in the current best interests of the represented person that the Public Advocate be appointed the represented person's limited guardian with the functions I have already decided to be included in a guardianship order (see above).
The represented person's estate is of significant value, with a large cash component. Complications have arisen as a consequence of the estate of the spouse and the under‑reporting of assets by the spouse to the relevant authorities regarding the represented person's entitlement to the age pension and the rate at which her nursing home fees are set. It is also likely, given the size of the represented person's estate that, in the future, income taxation returns will need to be completed.
It appears from her most recent submission that the daughter is not opposed to the appointment of the Public Trustee as administrator of the represented person's estate. Her initial position was that she should be appointed the administrator.
For the avoidance of doubt I find the following.
The daughter has provided no probative evidence that she is capable of managing the complexities of the represented person's estate. In any case she has proposed that she be given assistance from the represented person's estate at the very least for her accommodation needs. It is also not clear what interest, if any, she may have in the estate of the spouse. I am satisfied that the daughter would be in a position of a conflict of interest were she considered as the represented person's administrator.
I therefore appoint the Public Trustee as the plenary administrator of the estate of the represented person. In so doing, I revoke the order made for August 2015 pursuant to s 65 of the GA Act.
I accept the evidence from the support worker, given his association with the spouse, that it is more likely than not that the represented person would want to assist the daughter achieve some stability and security in her life. I am unable, on the evidence, to be any more particular as to what that assistance might be and I have therefore authorised the administrator, at his discretion, to apply or expend monies of the represented person, whether income or capital, for the maintenance, necessaries, comforts and benefits of the daughter.
I have decided that both the guardianship and administration orders be set for review after a period of five years: s 84 of the GA Act.

Orders

In relation to matter GAA 3128 of 2015, the Tribunal makes the following orders:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is 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.The administrator is authorised to apply or expend monies of the represented person, whether income or capital, for the maintenance, necessaries, comforts and benefits of the daughter of the represented person in such manner and to such extent as the administrator, having regard to the circumstances and the value of the estate of that person, considers proper and reasonable.
3.The order dated 4 August 2015 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
4.This order is to be reviewed by 3 November 2020.
In relation to matter GAA 3130 of 2015, the Tribunal makes the following orders:
1.The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person;
(b)To decide where the represented person is to live, whether permanently or temporarily;
(c)To decide with whom the represented person is to live; and
(d)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 3 November 2020.
I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER