RW
[2014] WASAT 120
•29 AUGUST 2014
RW [2014] WASAT 120
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 120 | |
| 17/09/2014 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1313/2014 | 6 AUGUST 2014 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 29/08/14 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Limited guardianship order Limited administration order | ||
| B | |||
| PDF Version |
| Parties: | RW CW |
Catchwords: | Guardian and Administration Enduring power of attorney Enduring power of guardianship Presumption of capacity Clear and cogent evidence is required to rebut the statutory presumption of capacity Limited guardianship order Suitability for appointment as guardian and administrator |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1)(b)(iii), s 43(1)(c), s 44, s 44(5), s 64(1)(a), s 64(1)(b), s 68, s 68(1), s 77, s 77(1)(a), s 77(3), s 84, s 108, s 108(1)(a), Pt 9C Mental Health Act 1996 (WA) |
Case References: | FS [2007] WASAT 202 GC and PC [2014] WASAT 10 |
Summary | RW is a 78 year old man with a history of a mental illness, bipolar disorder, and a slow and gradual neurocognitive decline.,When suffering a relapse of his mental illness RW was prone to ill-considered personal and financial decisions which he would later regret.,RW had recently been admitted to psychiatric facility as an involuntary patient because of a relapse of his mental illness. It would appear that he had not fully recovered from the relapse when he embarked on action in the Family Court and made an enduring power of attorney and enduring power of guardianship appointing a friend and a daughter.,Subsequently, RW had discontinued the Family Court action, revoked the enduring power of attorney and enduring power of guardianship and had returned to the marital home where he remained living at the time of the Tribunal hearing.,RW's spouse made applications for guardianship and administration for RW on the basis that he needed someone to make his accommodation and treatment decisions and to protect his estate.,The applications were opposed by RW's friend and his three daughters because of their view that RW's spouse had not acted in his best interests.,The Tribunal was satisfied after RW underwent extensive neuropsychological testing, that the statutory presumption of capacity was not rebutted in significant areas of RW’s personal and financial life.,The Tribunal decided, however, that there were limited areas in RW's personal and financial life in which he required assistance and a measure of protection.,RW's spouse was appointed his limited guardian to enable her to liaise and consult with his medical practitioners and to obtain medical information so as to enable her to monitor his mental state to protect against a further relapse.,RW's spouse was appointed RW's limited administrator to liaise with and obtain information from banks and other financial institutions in respect to RW and also to decide whether he should enter loan agreements or obtain and maintain credit card accounts. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RW [2014] WASAT 120 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 6 AUGUST 2014 DELIVERED : 29 AUGUST 2014 PUBLISHED : 17 SEPTEMBER 2014 FILE NO/S : GAA 1313 of 2014 MATTER : RW
- Represented Person
Catchwords:
Guardian and Administration Enduring power of attorney Enduring power of guardianship Presumption of capacity Clear and cogent evidence is required to rebut the statutory presumption of capacity Limited guardianship order Suitability for appointment as guardian and administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1)(b)(iii), s 43(1)(c), s 44, s 44(5), s 64(1)(a), s 64(1)(b), s 68, s 68(1), s 77, s 77(1)(a), s 77(3), s 84, s 108, s 108(1)(a), Pt 9C
Mental Health Act 1996 (WA)
Result:
Limited guardianship order
Limited administration order
Summary of Tribunal's decision:
RW is a 78 year old man with a history of a mental illness, bipolar disorder, and a slow and gradual neurocognitive decline.
When suffering a relapse of his mental illness RW was prone to ill-considered personal and financial decisions which he would later regret.
RW had recently been admitted to psychiatric facility as an involuntary patient because of a relapse of his mental illness. It would appear that he had not fully recovered from the relapse when he embarked on action in the Family Court and made an enduring power of attorney and enduring power of guardianship appointing a friend and a daughter.
Subsequently, RW had discontinued the Family Court action, revoked the enduring power of attorney and enduring power of guardianship and had returned to the marital home where he remained living at the time of the Tribunal hearing.
RW's spouse made applications for guardianship and administration for RW on the basis that he needed someone to make his accommodation and treatment decisions and to protect his estate.
The applications were opposed by RW's friend and his three daughters because of their view that RW's spouse had not acted in his best interests.
The Tribunal was satisfied after RW underwent extensive neuropsychological testing, that the statutory presumption of capacity was not rebutted in significant areas of RW’s personal and financial life.
The Tribunal decided, however, that there were limited areas in RW's personal and financial life in which he required assistance and a measure of protection.
RW's spouse was appointed his limited guardian to enable her to liaise and consult with his medical practitioners and to obtain medical information so as to enable her to monitor his mental state to protect against a further relapse.
RW's spouse was appointed RW's limited administrator to liaise with and obtain information from banks and other financial institutions in respect to RW and also to decide whether he should enter loan agreements or obtain and maintain credit card accounts.
Category: B
Representation:
Counsel:
Represented Person : N/A
Applicant : Mr D Taylor
Solicitors:
Represented Person : N/A
Applicant : DTS Legal
Case(s) referred to in decision(s):
FS [2007] WASAT 202
GC and PC [2014] WASAT 10
Background
1 RW is a 78-year-old man who lives with his spouse, CW. He has three daughters, all of whom live in the USA.
2 RW has a long history of the metal illness, bipolar affective disorder, with mania being the predominant feature upon relapse of the illness.
3 In late March 2014, CW made application to the Tribunal for the appointment of a guardian and administrator for RW. The applications were precipitated and followed by a series of events.
4 In early March 2014, RW was admitted to Selby Lodge as an involuntary patient under the Mental Health Act 1996 (WA) suffering from a relapse of his bipolar disorder.
5 On 26 March 2014, RW was transferred to Hollywood Private Hospital for a hernia operation. It was expected that he would return to Selby Lodge for stabilisation of his mental state post operatively. Instead on 28 March 2014 he discharged himself from Hollywood Private Hospital accompanied by a friend, SV. SV is also known to CW.
6 A short time after discharge, RW initiated proceedings in the Family Court of Western Australia (Family Court). He was assisted in this by SV and was legally represented. At about the same time, RW executed enduring powers of attorney (EPAs) and enduring powers of guardianship (EPGs) appointing SV in the first instance and then appointing SV with a daughter of RW, CWR.
7 In the middle of April 2014, RW decided to return to the matrimonial home and has remained living there since that time. He revoked one of the EPAs and one of the EPGs on 22 April 2014 and, after receiving further legal advice, settled the Family Court matter by consent in early May 2014.
8 The proceedings in the Tribunal have been somewhat protracted given these events and also given that RW, after initial reluctance, finally agreed to undergo a current assessment of his capacity.
9 The hearing of the applications for guardianship and administration orders occurred on 6 August 2014. RW attended the hearing, as did CW, SV and RW's three daughters who attended by telephone from the USA. CW was legally represented.
10 The Tribunal had earlier referred the applications to the Public Advocate for investigation. DD, the Public Advocate investigator, also attended the hearing.
11 The decision was reserved.
The relevant legislation
12 The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
13 The GA Act requires the Tribunal to proceed through a number of steps in order to arrive at a decision about whether to appoint a guardian and administrator for RW.
14 A finding must first be made about the represented person's capacity. The starting point is that RW is presumed to be capable of looking after his own health and safety or making reasonable judgments about his person, and is able to make reasonable judgments about his estate (s 4(3), s 43(1)(b) and s 64(1)(a) of the GA Act).
15 The Tribunal must be further satisfied that there is a need for a guardian and administrator to be appointed. Orders should not be made if RW's needs can be met by other means less restrictive of his freedom of decision and action (s 4(4), s 43(1)(c), and s 64(1)(b) of the GA Act).
16 If guardianship and administration orders are made, the Tribunal must decide what should be the scope of those orders. If RW's personal needs can be met by the making of a limited guardianship order then a plenary order should not be made (s 4(5) of the GA Act). There is no such express restriction in the making of administration orders, although any limited order made should reflect RW's needs (s 4(6) of the GA Act).
17 If a guardianship order is made, then the Tribunal must decide who should be appointed. Section 44 of the GA Act provides guidance to the Tribunal in the answer to that question. The Tribunal must be satisfied that the proposed guardian will act in RW's best interests; will not be in a position where the proposed guardian's interests conflict or may conflict with his interests; and that the person otherwise be suitable to act as guardian. Suitability takes into account the desirability of preserving existing family relationships; the compatibility of the proposed guardian with RW and his administrator; RW's wishes; and whether the proposed guardian will be able to perform the role that he or she is given. Much the same requirements apply for the appointment of an administrator, although it is not expressly provided for the Tribunal to consider a conflict of interest that a proposed appointee may have with the interests of RW (s 68 of the GA Act).
18 The Public Advocate is able to be appointed RW's guardian only if it is determined by the Tribunal that there is no one else suitable or willing to undertake that role (s 44(5) of the GA Act). The Public Trustee consents to his appointment as administrator should the Tribunal similarly find that no other person is suitable or willing to be appointed to that role (s 68(1) of the GA Act).
19 When going through all the steps just mentioned, the Tribunal must, as far as possible, seek to ascertain RW's views and wishes but, ultimately, must make a decision in what the Tribunal determines to be in his best interests (s 4(2) and s4(7) of the GA Act).
The question of RW's capacity
The medical and allied health reports
20 The Tribunal has before it a number of specialist reports that provide assessment and opinion on RW's capacity at particular points in time.
21 The earliest reports date from 2004 and 2005 and are from specialist practitioners in the USA. RW's bipolar disorder was stated as an existing condition but, in addition, he was said to meet the criteria for a cognitive disorder, specifically a mild cognitive impairment. The diagnosis of the cognitive disorder was based on RW's assessed deficits in nonverbal memory and visual-motor areas, although the effects of his bipolar disorder or medications could not be excluded. RW was said to need daily supervision, including with his medications, and was assessed as not being able to live independently or handle his financial or healthcare matters.
22 The next reports before the Tribunal in chronological order are those from February 2010 and March 2010 from RW's then treating psychiatrist. These reports mention that RW's mental state had been quite fragile in the previous five to 10 years and that he had required psychiatric treatment on a number of occasions for hypomanic mood swings. The report of 19 February 2010 states that 'the situation at home has been increasingly difficult' although, by 3 March 2010, 'the immediate conflicts at home have been gradually subsiding'.
23 The main problem identified by the treating psychiatrist at the time was RW's 'gradual decline in his cognitive functioning' (letter dated 4 February 2010).
24 An assessment by the Aged Care Assessment Team (ACAT) from May 2013 relevantly states that RW was independent with all aspects of personal care, that he self-administered his medication for his bipolar disorder, and that, in the past, he had tried to reduce his medication without consultation with his psychiatrist. RW had scored 29/30 on a mini mental state examination (MMSE) and was reported as having occasional problems with short and long term memory. CW was said to be showing signs of carer stress in that she was unwell and exhausted.
25 The remainder of the reports relate to the current period, that is, in the period of RW's admission and subsequent discharge from Selby Lodge.
26 The discharge summary from Hollywood Private Hospital dated 28 March 2014 states that on a MMSE, there was no evidence RW had depression, mania or thought disorder. He had been compliant with medications for his bipolar disorder whilst an inpatient. A consultant psychiatrist had assessed RW's mental state as much improved compared to the time of his admission on 26 March 2014. RW had recovered well post-operatively and was ready for discharge.
27 The discharge summary from Selby Lodge dated 31 March 2014 states that marked working memory deficits were observed with RW but that his other cognition was 'preserved' (MMSE score of 30/30). During the admission, RW had improved markedly on his medication regimen. The discharge summary notes that a comprehensive neuropsychological assessment was indicated in respect to the application for an administration order but that RW had declined to return to Selby Lodge when discharged from Hollywood Private Hospital.
28 A report from RW's general practitioner of 15 years dated 15 April 2014 states that the prognosis for the bipolar disorder is good if RW adheres to his medication regime, and that the mild cognitive impairment is 'appropriate for age'. The general practitioner assesses RW as capable of making his own personal and financial decisions and executing an EPA.
29 A report from a medical officer at Selby Lodge states that RW's judgment and insight is 'in question' and that his cognition is partially impaired when his mental state is unstable. At the time of writing the report, the medical officer was waiting for a detailed cognitive assessment from a clinical psychologist.
30 Dr DP, clinical psychological at Selby Lodge, undertook a detailed assessment of RW's capacity comprising the studying of previous medical reports and interviews and testing of RW on four occasions at his home in June and July 2014.
31 Because RW's capacity is a contested area and some of the changes to his cognition are subtle, it is helpful to quote the entirety of Dr DP's clinical impressions and recommendations.
[RW] obtained a score of 79/105 on the CAMCOG, suggestive of some cognitive decline. His 2005 UCLA neuropsychological assessment had reported some cognitive changes at that time. Recent neuroimaging studies have suggested that vascular factors, in cortical and subcortical areas, may be a factor in these cognitive changes (though another examiner questioned whether [RW] showed early signs of Alzheimer's dementia).
Absent from [RW]'s presentation were marked impulsivity, hypomanic/manic mood changes, personality changes not explained his recent manic episode, or significant behavioural issues not related to stressors and couples issues. What appears most noteworthy is a gradual and slow progression of cognitive changes, most noticeable in the areas of speed of information processing and some areas of executive functioning, including generating new responses. While memory scores and general knowledge scores were not in an impaired range, some of these low average scores may for [RW] be indicators of a decline from premorbid abilities.
In 2005, [RW]'s cognitive difficulties were classed as 'unspecified', and it was unclear if they indicated mild cognitive impairment or merely age-related cognitive changes. This assessment suggests there has possibly been some, though not abrupt, negative change in cognitive abilities since that time. There were indications of some of the same visual-motor, and visual memory problems briefly referred to in the 2005 assessment (though in this assessment, visual memory scores were inconsistent, with a number in the average range).
Based on scores obtained here, recent history, and clinical impressions, [RW] would meet DSM-V criteria for a mild-to-major neurocognitive disorder, likely due to vascular and/or mixed aetiologies. Without being able to review [RW]'s full 2005 battery, it is hard to make predictions about the course of these changes; though most available evidence suggests changes are slow and gradual. Continued medication reviews could help make sure medication side effects are not contributing to observed cognitive and behavioural changes.
[RW] has some insight into his areas of difficulty; has significant reserves of social knowledge and skills; and while there were recent conflicts and strains, he appears to be in a supportive and caring relationship with [CW], whose opinions and knowledge he appears to respect and trust. [RW] also appears at present to be well aware of the threats to his cognitive functioning and self-care posed by his bipolar disorder being untreated or under-treated, and at which times his functioning does appear quickly undermined by mood-related cognitive and behavioural changes.
From this assessment, and recent events, neurocognitive decline does not appear to [be] the main issue that has negatively impacted [RW]'s finances, overall functioning, or relationship with his wife in the recent period, but is a secondary and still significant concern. The extended period where his bipolar disorder was untreated, resulting in a manic episode, appears the main cause for concern; though [CW]'s reports that her husband seems to have trouble initiating things or sustaining planned behaviours over time may be related to low executive functioning scores in this assessment.
[RW]'s impulsive and potentially damaging decisions during that period do not appear to be due to his cognitive difficulties. In fact, the cognitive and generative slowing [RW] exhibits would seem to mitigate against quick and impulsive decisions, rather than make them more likely under general circumstances (when [RW]'s mood is not manic or hypomanic).
[RW] has stated he plans to remain in ongoing psychiatric treatment, and to be compliant with prescribed medications. Whether this would be sufficient to meet the concerns that led to consideration of an order for financial administration remains an open question. [RW]'s current cognitive problems do not at present appear to undermine his ability to understand his finances, or to work with his wife in making needed decisions, though he may have trouble sustaining plans in a given area without structure and prompts. It is possible cognitive factors could contribute to inconsistent compliance with treatment, precipitating a mood relapse (and the couple's recent discussion on 28 July about [RW]'s difficulties taking his medications on schedule could contribute to that possibility). Planning for such a contingency, even if not likely at the moment, might be wise.
For these reasons, planning to minimise the impact of future mood eipsodes appear warranted at this time, that take into account the possible progression of cognitive changes for [RW]. [RW] would be very disadvantaged at present if decision-making needed to be hurried, occured [sic] in a context where quick multitasking was required; and structure and prompts should be considered to address any difficulties sustaining planned behaviours. For normal, day to day situations, [RW]'s difficulties at present don't appear to prevent him from collaborating with [CW], in the typical [way] a couple might when one or both have some health concerns that need to be accommodated. While a financial administration order might minimise risks, there would be other less restrictive options agreeable to both [RW] and [CW] to protect their finances in the event of a major episode.
The following would be recommended in the next period:
1. A neurocognitive review within 12 months might help clarify whether, and in what ways, [RW]'s cognitive difficulties are progressive, help resolve any continued diagnostic uncertainties, and provide directions for possible treatment.
2. Continued involvement with mental health services would be strongly indicated, to prevent further severe and debilitating mood episodes, and address (possibly by associated counselling) issues of adjustment to living with both mood and cognitive difficulties. Such a process might help maximise [RW]'s insight and social engagement. If she wishes, intermittent use of carer support services might be a support to [CW] during this period.
32 In his report of 24 July 2014, MF, a social worker at Selby Lodge, states that when he has met with RW subsequent to his discharge from hospital, he has found him pleasant, polite and appropriate. RW's mood is currently stable and his medications are now packed in a 'Webster pack'. MF states:
When I have seen him in his home, he presents as an articulate and reflective gentleman. Despite this, he appears to either minimise or lack insight into the effect his decision-making has on his wife when he is manic.
Other evidence and submissions
33 In her evidence, CW describes a history of dealing with RW when in a manic relapse of his bipolar disorder. An example from 1999 was RW securing a pilot's licence without telling the relevant authorities about his serious heart problems and paying a $20,000 deposit on the purchase of a plane. The pilot's licence was subsequently revoked.
34 More recently in 2013 when RW was staying briefly with SV whilst CW was arranging the sale of one property and the purchase of another, CW states that RW took out a personal loan of $10,000 and an advance on his credit card for $7,000 to purchase a motor vehicle. CW states that the loan/advance was unnecessary at the time because sufficient bank funds were available.
35 CW states that financial decisions made by RW during relapses of his bipolar disorder over the last 16 years have resulted, by her estimate, in losses in excess of $200,000. She estimates the legal costs of the recent Family Court and associated matters to be at least $20,000.
36 SV states that when RW stayed with him in March and April 2014, he appeared fully cognisant, cheerful and able. During that time, SV states he assisted RW to obtain legal assistance in respect of the Family Court matter, the EPA and the EPG.
37 The three daughters of RW (daughters) state that they are aware of his bipolar disorder but have not witnessed a full episode of mania. They say that in their experience, a relapse of the illness occurs gradually. One of RW's daughters, CWR, states that when RW was discharged from Selby Lodge, his speech was clear and alert, but that changed when he returned to live with CW. She submits that '[o]bviously, my father is capable of deciding about his living situation' but that CW prevents him from freely exercising that choice (submission dated 29 April 2014).
38 In a written submission, RW's brother-in-law, states he has known RW for 31 years and he, too, mentions the bipolar disorder and episodes of mania. He states he is aware of RW's admission to Selby Lodge in March 2014 'due to a further manic episode, coupled with a degree of dementia, which I had noticed on a number of previous occasions. [RW] has appeared to be confused and forgetful at times'.
39 WS, the mother of CW, states in a written submission dated 7 June 2014 that RW's mental and physical health have deteriorated dramatically over the past few years. She states that RW's behaviour can be challenging, especially if his mood swings are not controlled by prescribed medications.
40 A written submission from TL, RW's stepdaughter (CW's daughter) states that when she has witnessed RW in a manic state, he drinks more than usual, becomes verbally aggressive, irrational and financially reckless, restless and hyper, and he can disappear for hours or days without informing CW.
41 DD, the investigator from the Public Advocate's office, states that he accepts the opinion of the clinical psychologist, Dr DP, that RW's 'impulsive and potentially damaging decisions when he is manic do not appear to be due to his cognitive difficulties' (report dated 30 July 2014).
42 DD submits that RW is in need of oversight, care and control in the interests of his own health and safety, and is unable to make reasonable judgments about personal and financial matters when he is in a state of mania.
Guardianship and administration - evidence and submissions
43 CW states that when RW has had a relapse of his bipolar disorder and has not been properly medicated or managed by a psychiatrist, he has behaved in inappropriate ways and done harmful things to both himself and others, for which he later expressed remorse.
44 In addition to the financial concerns (see above), CW submits that the recent action by RW to take action in the Family Court is an example of his inappropriate and harmful behaviour followed by remorse and changing of the decisions he has previously made.
45 CW states that as far back as 2005, RW acknowledged the financial harm that his mania caused to the marital assets and, whilst living in the USA, he executed a power of attorney for financial and health matters appointing her as his agent. For the same reason, the main matrimonial assets have been transferred into her name.
46 CW disputes the evidence of RW's daughters (see below). She states that RW is not prevented from communicating with his daughters by telephone or 'Skype'. She says that RW is free to come and go as he pleases, and he has recently resumed driving and his twice weekly card game (Bridge).
47 CW states that she has attempted many times without success to have RW's daughters assist in RW's care, even when she and RW were living in the USA.
48 CW accepts that SV may have been well intentioned in the recent assistance he gave to RW. However, CW submits that SV's point of view is likely to have been formed on the basis of RW's mistaken beliefs about his circumstances as a consequence of the relapse of his bipolar disorder.
49 CW states that RW's wellbeing is well monitored as she has arranged that they receive Meals on Wheels every weekday, domestic and social assistance from the local council and home visits from staff at Selby Lodge.
50 CW submits that she should be appointed RW's guardian to ensure that he receives appropriate medical and psychiatric care, and to plan for the time he may require a higher level of care than she can provide.
51 CW further submits that she should be appointed RW's administrator to ensure that he not be permitted to enter into contracts for the purchase and sale of real estate, opening or maintaining credit card accounts, entering into loan agreements, and commencing legal proceedings other than by a litigation guardian appointed by a court. She states that she has been advised by RW's bank that an EPA, if it were in place for RW, would not necessarily prevent him from withdrawing funds or obtaining credit even if he was mentally unwell at the time.
52 CW states that she does not wish to interfere in RW's management of his pension income. She proposes that RW retain control of his USA pension, which amounts to $1,200 a month, and that she manage the remainder of his estate, including his Australian pension which is paid into a joint account.
53 CW submits that orders are needed because recent events, in particular, demonstrate that less restrictive alternatives are insufficient to manage the risk to RW's personal and financial wellbeing posed by his bipolar disorder and cognitive decline.
54 SV, in a lengthy submission to the Tribunal dated 28 July 2014, states that he has known RW and CW for over six years. He describes his understanding of the difficulties that present in RW's relationship with CW. In particular, he states his view that RW is overborne by CW and that he had previously warned RW 'to be careful because [CW] will eventually try to have [you] committed'.
55 SV states that he has been told by RW that on many occasions that CW has threatened him with divorce, including when demanding that a residential property purchased in Western Australia be in her name only, something that SV says he advised RW against.
56 SV states that when RW was admitted to Selby Lodge as an involuntary patient in early March 2014, he was contacted by RW and asked to visit him urgently. SV said that upon seeing RW, he became upset because it was his understanding that RW had private health cover that should have allowed him to be treated in a private clinic. SV states:
He was under very strong drugs that hindered his speech (like his tongue was swollen), but I spoke with him for two hours and all that he spoke was sensible. (Submission dated 28 July 2014)
57 SV states that RW told him that he wanted to divorce CW, and asked him to become his attorney and enduring guardian because he did not trust CW with these powers as she would only look after her own interests.
58 An EPA and EPG appointing SV were executed by RW on 9 April 2014. A further EPG was made by RW on 9 April 2014 appointing SV as guardian and RW's daughter, CWR, as substitute enduring guardian. On 10 April 2014, another EPA was made by RW appointing SV and CWR as joint and several attorneys.
59 SV states that at about the same time, RW made a new will with him as executor.
60 SV states that in mid-June 2014, he met with RW who told him that he and CW had come to an arrangement that he could live in the marital home if he withdrew the Family Court action. SV states that RW told him that the process of the legal action had overwhelmed him and, although he was now “disadvantaged and vulnerable” (SV submission dated 28 July 2014), he felt protected by the 'second legal documents' (the latest EPA and EPG).
61 SV states that RW also said he would repay him the $5,000 SV had advanced for legal fees.
62 SV states that in recent times he has been telephoned by RW about every three weeks. RW is reported to say that he is not able to speak freely.
63 SV submits that an independent administrator should be appointed for RW, to protect his interests. SV would propose himself as RW's guardian should the Tribunal decide that there is a need for such an appointment.
64 RW's daughters, in common, express, through written submission and oral evidence, a concern for RW, and say they do not trust CW as they do not believe she has his best interests at heart and therefore will not care for him properly.
65 RW's daughters state that they believe CW exercises 'absolute control over [RW] in all aspects of his personal privacy, finances and freedom' and that he is subject to elder abuse (submission of LWA dated 7 May 2014). One of RW's daughters, CWR, states:
[CW] and my father have what we call their own unique dance which has been part of their interaction for most of their marriage. Of course we have shown concern and tried to be supportive during each dramatic situation, but we never felt we should meddle. All the same, this dance has changed to a level that requires us to take action to help right a wrong. We believe [CW] has exaggerated what my father has done and is taking the opportunity to control him, both physically and financially. (Submission dated 29 April 2014)
66 The daughters state that they cannot get uninterrupted access to RW by telephone or 'Skype' and that CW has been verbally abusive to them.
67 The daughters submit that if guardianship and administration appointments are to be made by the Tribunal, they should be independent appointments.
68 RW's brother-in-law states that since returning to Australia, CW has been looking after RW alone without any family assistance.
69 CW's mother states her view that CW remains RW's principal carer and always makes sure he receives the best medical attention and care in their home. She states that despite RW's recent ill health and CW's encouragement, the daughters have not expressed concerns about his welfare nor offered to visit their father.
70 TL, the stepdaughter of RW, states that, in her view, CW and RW are 'co-dependent' (submission dated 11 June 2014). She states:
My mother has become the main recipient of [RW]'s demands, having to deal with the fall out after each subsequent manic episode, frequently having to take on the roles/jobs [RW] no longer has been able or motivated to do, and increasingly having to guide and look after him.
71 TL states that the caring role has taken its toll on CW and that she is increasingly torn between caring for RW and her wish to see her family, including her mother and granddaughters, who live in the United Kingdom.
72 TL states that CW continues to be worried about the financial security of both she and RW. TL submits that RW is not able to fully gauge the consequences of his poor financial decision-making and is therefore vulnerable to being taken advantage of in an ongoing way. Despite this, TL states:
They both care about each other despite their difficulties and frustrations, and both have expressed recently to me after the most recent manic episode their wish to remain living at home together.
73 A written submission dated 9 June 2014 by VT, a once close neighbour in Perth for 18 years, states that she has never witnessed CW abuse RW. She says that as RW's behaviour has become more erratic, there have been some arguments and shouting but that CW has continued to care for RW under difficult circumstances.
74 In a letter dated 13 June 2014, RW's long-standing general practitioner states:
This is to certify that [CW] attends this practice.
I understand that an allegation of 'elder abuse' has been made against [CW] in relation to her husband [RW], who also consults me for medical advice.
Having known both [RW] and [CW] for many years, I could confidently state that while there has been stress in their relationship due in part to multiple medical issues, there is no evidence that I am aware of, of deliberate or systematic abuse on either side.
75 DD, the investigator from the Office of the Public Advocate, submits that RW is in need of a guardian and administrator.
76 The need for a guardian is premised on CW reporting that RW can be non-compliant with his medication; that when in a state of mania he is incapable of giving consent to his treatment; and that he is vulnerable to persuasion contrary to his interests.
77 DD submits that CW should be appointed RW's limited guardian to make decisions about his accommodation, support services and medical treatment.
78 The need for an administrator is premised on the financial harm RW is subject to when in a state of mania and his vulnerability to taking excessive and unnecessary loans and credit.
79 DD submits that CW should be appointed the plenary administrator of RW's estate.
80 DD says that the appointment of CW is supported by RW and that CW knows RW better than anyone else after 31 years of marriage.
81 In his oral evidence, RW states that although he believes he can make his own decisions, he is not the man he once was. He states that he appreciates everyone's concern for him but that he would be at a loss if CW was not appointed to assist him.
The decision of the Tribunal
82 It is uncontested that RW suffers from bipolar disorder and some cognitive decline. This diagnosis is consistent in the medical and allied health reports before the Tribunal from 2004 to the present day.
83 The difference in opinion, from both a professional and lay viewpoint, is the degree to which these conditions impact on RW's capacity to make his own personal and financial decisions.
84 Where the opinion of the clinical psychologist, Dr DP, differs from the opinions of the medical practitioners, I prefer the opinion of Dr DP. This is because the assessment of Dr DP is the most current and has proceeded on the basis of a study of previous assessments and extensive formal testing of RW.
85 I am satisfied, on the evidence, that the main impact on RW's functioning and decision-making is when he suffers a relapse of his bipolar disorder. During these periods, RW makes impulsive personal and financial decisions that he appears to later regret.
86 I accept Dr DP's assessment that the symptoms of RW's cognitive decline which are slow and gradual (but still significant), are most noticeable in the area of speed of information processing, and in some areas of executive functioning, including generating new responses, and this would tend to work against impulsive decision-making when RW's bipolar disorder is stable.
87 The symptoms of the cognitive decline can disadvantage RW if decisions need to be made quickly or when quick multitasking is required; they do not, according to Dr DP, appear to presently undermine RW's ability to understand his finances or work together with CW to make necessary decisions.
88 By his own admission, RW is not as able as he once was. He accepts that he increasingly relies on CW in his daily functioning, which is consistent with Dr DP's assessment that he needs structures and prompts in the decision-making process.
89 This reliance on CW is, in the submissions of SV and RW's children, the very reason why orders should be made. These submissions argue that RW, when his mood is stable, can make his own personal and financial decisions but cannot give effect to those decisions because he is overborne by CW and her interests.
90 I note from the evidence that as recently as April and May 2014, RW was giving instructions to his lawyer and in those instructions, commenced action in the Family Court and also executed EPAs and EPGs. Although CW is proposing that orders be made for RW, she has not argued that RW was incapable of revoking an EPA and an EPG on 22 April 2014 or that he was incapable of settling the Family Court matter by consent in early May 2014.
91 In my view, it is at least arguable that when RW was discharged from Hollywood Private Hospital after an operation and embarked on the various actions earlier described in these reasons, he was not fully recovered from the relapse of his bipolar disorder because the mental health team expected him (as he had himself undertaken to do) to return to Selby Lodge for stabilisation of his mental state post-surgical trauma.
92 The presumption of a person's capacity is not easily rebutted.
93 In GC and PC [2014] WASAT 10 (GC and PC), the Full Tribunal said, at [36]:
…The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the Act. Because of the significant consequences for an individual of having their decision-making 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.
- I adopt the reasoning in GC and PC.
94 As regards RW's personal decision-making, I am not satisfied, for the following reasons, that there is clear and cogent evidence that the presumption of capacity has been rebutted to deny the right of RW to continue to make decisions about his medical treatment and accommodation, the two significant areas of decision-making proposed to be placed under guardianship.
95 I accept that when RW is in a manic relapse of his bipolar disorder, he is more likely than not unable to make reasonable judgments about personal matters. When a serious relapse occurs, treatment would typically be given to RW under the provision of the Mental Health Act 1990 (WA), as happened by way of his admission to Selby Lodge earlier this year but which could also happen in the community under a community treatment order if considered appropriate by mental health authorities.
96 However, at the time of the hearing, RW's mental illness was being treated and he was stable. Dr DP states in his report of 29 July 2014 that RW had stated to him that he planned to remain in ongoing psychiatric treatment and to be compliant with medications which MF, the Selby Lodge social worker, said were arranged by way of a Webster pack.
97 The immediate danger presented by the effects of a bipolar disorder relapse is therefore not present at this time.
98 I am not satisfied that the cognitive disorder alone renders RW unable to make reasonable judgments about medical issues or his accommodation. Whilst, as Dr DP states, RW's information processing may have slowed, and that he needs assistance by way of prompts and structure, that, of itself, in my view, does not currently prevent RW from giving consent to medical matters or in the decision about where he lives.
99 I do, however, accept, on the evidence, that RW is in need of oversight and care in the interests of his own health and safety (s 43(1)(b)(iii) of the GA Act). Any relapse of his bipolar disorder is no doubt an insidious event that requires monitoring of RW's medication and his behaviours and, importantly, the authority to consult with mental health and other professionals in an ongoing way.
100 I am therefore satisfied that it is in RW's best interests that a guardian be appointed to consult, liaise and advocate on his behalf with his medical practitioners and allied health professionals, and to obtain information, reports or copies of any documents relating to his treatment or healthcare.
101 This order should enable the guardian to assist RW in the decision-making in the way suggested by Dr DP.
102 I have decided to appoint CW as guardian despite the concerns raised by SV and RW's daughters. Those concerns are contested by CW and others and, ultimately, it could be argued, by RW himself in the decision he made to return to the matrimonial home and his wish that, if orders are made, CW be the appointed guardian and administrator.
103 I am satisfied on the evidence that the relationship of RW and CW has been subject to very difficult times, largely it would seem, as a consequence of the relapse of RW's bipolar disorder and the need to rectify the damaging decisions he has made. The psychiatric reports from 2010 and the ACAT assessment of 2013 refer to such difficulties and also to CW displaying signs of carer stress.
104 However the relationship between RW and CW ought ultimately to be characterised (for example, 'their own unique dance' by their daughter, CWR, or 'co-dependent' by the stepdaughter, TL) and, despite the difficulties they have endured, they have remained together for over 30 years. To the extent that RW has required assistance, that assistance has been primarily provided by CW.
105 I am satisfied that CW meets the requirements of s 44(2), s 44(3) and s 44(4) of the GA Act for her appointment as RW's guardian but, as I have already mentioned, the appointment is one with a very limited function.
106 I should add in respect to decisions about RW's medical treatment that Pt 9C of the GA Act will apply if the situation arises that RW is found not to be able to make reasonable judgments in respect of a particular treatment. If this occurs, then CW will be lawfully entitled, as RW's spouse and the person responsible, to make the treatment decision for him without the need to be appointed guardian.
107 It is also the case that RW may wish to execute a fresh EPG to plan for the situation when he might lose capacity.
108 As regards the management of RW's financial affairs, I am satisfied that RW has a mental disability as defined in s 3 of the GA Act. His psychiatric condition (the bipolar disorder) meets the definition of a mental disability, as does the neurocognitive disorder which DrDP opines is likely due to vascular and/or mixed aetiologies.
109 In deciding whether the mental disability impacts on RW's ability to make reasonable judgments about his estate, any impact must be judged against RW's individual estate and circumstances (Full Tribunal in FS [2007] WASAT 202 at [110.
110 The evidence indicates that RW's personal estate is relatively small, given that the principal matrimonial assets (including the matrimonial home) are held in the name of CW solely, and this was an arrangement agreed to by RW and CW to protect these assets from the ill-considered financial decisions made by RW when in a relapse of his bipolar disorder.
111 I am satisfied that RW is able to make reasonable judgments about his daily financial affairs including the management and disbursement of his income. For that part of RW's estate, I am of the view that the presumption of capacity is not rebutted. The bipolar disorder is currently stable and, as Dr DP opines and which I accept, the cognitive disorder, on its own, does not appear to undermine RW's ability to understand his finances.
112 I accept, however, that when RW has been unwell, he has incurred unnecessary debt, and I am satisfied that this particular risk continues to be present in the context of a further relapse of his mental illness.
113 Given that the effects of financial decisions made when in a state of mania continue to impact on RW's financial wellbeing long after those decisions have been made, I am satisfied that he is need of some protection from that risk in an ongoing way.
114 I accept CW's evidence that an EPA is not necessarily a barrier to RW making improvident financial decisions when unwell because to prevent such decisions requires the bank or finance company to make a judgment about RW's capacity at the time.
115 It should be said that even the making of an administration order does not, in the first instance, absolutely safeguard a person's estate from careless decision-making. Under s 77 of the GA Act, although a person under an administration order is deemed incapable of entering into any contract or making any disposition from their estate, this does not affect any contract for necessaries entered into by the person, or any contract or disposition by the person made for adequate consideration with, or in favour of, any other person who proves that he acted in good faith and was unaware that the person was under an administration order (s 77(1)(a) and s 77(3) of the GA Act).
116 On balance, I am satisfied that it is in RW's best interests that a limited administration order be made giving the administrator the authority to liaise with, make enquiry of, and obtain information relevant to RW from any bank or other financial institution, and to decide whether and to what extent RW should obtain any loans or credit and the terms upon which the loans or credit should be accepted.
117 The order should provide a measure of protection so that RW's finances can be stabilised and maintained in that way without unduly impacting on his freedom to manage his daily financial affairs.
118 Although an EPA may have a limited protective effect in RW's circumstances, in the suite of things that can be done to stabilise his finances, he should, in my view, consider the general utility of such an instrument.
119 For the same reasons I have appointed CW as limited guardian for RW, I will appoint her as his limited administrator with the functions I have stated.
120 To ensure certainty in the decision-making, I have decided, pursuant to s 108(1)(a) of the GA Act, to revoke the EPA made by RW on 10 April 2014 appointing SV and CWR as his attorneys.
121 There is not a mirror provision to s 108 in the GA Act in respect to EPGs. In the case of instrument made by RW on 9 April 2014 appointing SV and then CWR as his substitute guardian, RW will himself need to decide what action to take.
122 I will make both the guardianship order and the administration orders reviewable in five years, the maximum period available under s 84 of the GA Act, for the reason that RW will continue to need assistance indefinitely given his mental illness and the cognitive disorder.
Orders
Guardianship
CW is appointed limited guardian of RW with the following function:
1. To consult, liaise and advocate on RW's behalf with his medical practitioners and allied health professionals, and to obtain information, reports or copies of any documents relating to his treatment or healthcare.
2. The order is to be reviewed by 29 August 2019.
Administration
CW is appointed limited administrator of RW with the following functions:
1. To liaise with and make enquiry of and obtain information relevant to RW from any bank or other financial institution; and
2. To decide whether and to what extent RW should enter into loan agreements and open or maintain credit card accounts and to decide the terms upon which the loans or credit should be accepted.
3. The order is to be reviewed by 29 August 2019.
I certify that this and the preceding [122] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER