SR
[2021] WASAT 75
•21 MAY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: SR [2021] WASAT 75
MEMBER: DR E MARILLIER, MEMBER
HEARD: 8 APRIL 2021
DELIVERED : 21 MAY 2021
FILE NO/S: GAA 473 of 2021
GAA 1367 of 2021
SR
Represented Person
Catchwords:
Guardianship and administration - Enduring power of attorney - Enduring power of guardianship - Whether less restrictive alternative will suffice to protect health and safety - Family conflict
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(7), s 40, s 51, s 51(2)(a), s 51(2)(d), s 106, s 107, s 110H
Result:
Private limited guardian appointed for medical treatment decisions
Public Advocate appointed limited guardian for accommodation and services decisions
Public Trustee appointed plenary administrator
Enduring power of attorney revoked
Enduring power of guardianship suspended
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Background
SR is a 93-year-old lady who lives with her daughter G and granddaughter in her own home. She has a diagnosis of dementia and receives support through a level 4 home care package from City of Stirling Community Care (SCC) as well as attending a day centre five days a fortnight.
An application was made under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) by the case manager, MD, from SCC, due to mounting concerns that the pattern of verbal abuse observed from G to SR was beginning to escalate possibly to physical abuse, with the appearance of bruising on SR's arm.
SR has four children. These include her daughter G and sons C, S and J. J now lives interstate. All four children agreed that throughout their upbringing there had been a high level of conflict in the family, with a hostile communication style.
SR had executed an enduring power of guardianship (EPG) on 4 November 2011 appointing C as her enduring guardian, with S and G as the two substitutes. She had also executed an enduring power of attorney (EPA) on 16 December 2011 appointing C as the sole attorney with G and S as the joint substitute attorneys should C be ill or unavailable. The EPA would only be in force during any period when a declaration was made by the Tribunal that SR did not have legal capacity. In contrast the EPG was not subject to any restrictions in either the functions authorised to be performed by the enduring guardian, or the circumstances in which that guardian might act, other than to say that it was in effect at any time that SR was unable to make reasonable judgments in respect of matters relating to her person.
Subsequent to the application under s 40 the Tribunal received an application from C under s 106 of the GA Act seeking the bringing into force of the EPA by a declaration that SR had lost capacity.
The matter was heard on 8 April 2021 and orders were made on that day, appointing the Public Trustee as plenary administrator, C as limited guardian for medical treatment decisions and the Office of the Public Advocate (OPA) as limited guardian for accommodation and services decisions for SR. The EPA was revoked and the EPG suspended until further order of the Tribunal. The reasons for the decision follow.
The principles to be observed
In making a decision the Tribunal must observe the following principles:
•the Tribunal's primary concern is the best interests of the person concerned;[1]
•every person is presumed to be capable of looking after their own health and safety; making reasonable judgments in matters relating to their person; of managing their own affairs; and of making reasonable judgments in respect of matters relating to the estate; until the contrary is proven to the satisfaction of the Tribunal;[2]
•orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;[3]and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned and take them into account.[4]
The evidence before the Tribunal
[1] GA Act s 4(2).
[2] GA Act s 4(3).
[3] GA Act s 4(4).
[4] GA Act s 4(7).
The hearing was attended by MD, case manager at SCC, SR herself, her four children, C's wife N, DB the previous case manager at SCC, and Ms O, investigator from the OPA.
The Tribunal had received extensive evidence from the applicant including contemporaneous case notes dating from March 2018 to the present, occupational therapy and physiotherapy reports, incident reports, a discharge summary from Osborne Park Hospital (OPH) from May 2020, care plans related to the support provided by SCC, photos of bruising observed on SR's body in January 2021, a service provider report from MD, and a patient health summary from a nurse practitioner from 11 February 2021. The Tribunal also received copies of the EPG and EPA and a medical report from Dr RP, SR's GP. Dr RP attached a letter from the memory clinic at OPH from October 2020.
Does SR have capacity to make reasonable judgments regarding personal and financial matters?
It was uncontentious that SR suffers from mixed dementia. This is a cognitive impairment due to a combination of Alzheimer's disease and vascular dementia. The doctors at the memory clinic recorded a Mini Mental State Examination (MMSE) score of 21/30 at the visit of 8 October 2020. They noted that at the time SR was receiving a level 3 home care package and was awaiting delivery of a level 4 package. SR had no recollection of an admission the previous May to Sir Charles Gairdner Hospital after falling and fracturing two toes, and had no recollection of needing to wear a moon boot thereafter for a period of time. It was noted that G was suffering from carer stress, but was determined to keep her mother at home for as long as she could. The doctors noted that one of SR's sons came and picked her up every Thursday for a visit to his home for lunch as some respite for G.
Dr RP's report of 30 March 2021 documented that in a repeat MMSE on that day SR scored 11/30 and that her Montreal Cognitive Assessment score was 3/30. This demonstrated a significant and rapid deterioration in her cognitive function in the preceding six months. He found that she was incapable of making any personal or financial decisions as a result.
SR told me that she could make decisions for herself. She had no memory of executing the EPA and EPG, however she said that C was a very clever young man, and that he could work things out.
I am satisfied that by reason of her dementia and the profound cognitive impairment evidenced by her MOCA and MMSE scores of 31 March 2021, SR does not have capacity to make reasonable judgments in respect of matters relating to her person or her estate, and she is therefore a person for whom orders could be made.
Do the EPA and EPG stand as less restrictive alternatives that will be sufficient to meet the needs of SR, particularly to protect her health, safety and financial affairs?
Noting that the EPG was in place from 2011, I will summarise the key incidents reported in the submissions of the applicant.
Concerns regarding G's behaviour first led to an incident report by SCC on 9 March 2018. On this occasion she raised her voice, pointed her finger and used offensive language with the support worker because she felt that they had arrived home with SR too early.
The case notes from 10 March 2018 record contact between the SCC case manager and G to discuss the incident. G is documented as yelling at the case manager.
On 11 May 2018 a different support worker completed an incident report regarding an abusive conversation and physical aggression from G, kicking SR's bedroom door. It was reported that this aggression was directed towards SR. The trigger appears to have been G thinking that the support worker had dressed SR in 'wrong clothes'. The support worker noted that clothing and the handbag that would normally be left out on SR's bed were not there. As they left SR said to the support worker 'I am glad I'm going to day centre. At least my day will be good'.
On 21 September 2018 G is reported to have used denigrating and humiliating language and tone to her mother in front of the support worker. SR was observed cowering in response. Examples included: when SR finished a cup of tea and asked G what to do with it G replied 'On the left side of the sink mum, how many times do I have to tell you!!' SR commented to the support worker that the TV belonged to G. G heard this from the other room and yelled 'it's not my TV it's yours!' When dressed and in the dining room G commented 'for heaven's sake mum, can't you stand up straight? Stop stooping. That's better now why can't you walk around the house like that instead of hunched over?' The support worker mentioned that SR had an itchy crotch. G said 'she is okay, if I asked her the same question she would say she is fine.' When SR told the support worker that she was itchy she also said 'please don't tell G she will only get angry'.
Concerns about bruising occurring in circumstances where SR cannot recall the mechanism start in notes on 16 April 2018.
In May 2018 G acknowledged to the case manager that she does swear and uses foul language and she always has. It documents that G said she does get angry and there have been times that she had to go outside to calm her emotions down but that she would never hit her mother. Discussions regarding SR's cognitive state and that it may be declining and referrals to the McCusker nurse to assist with carer stress and strategies were provided. SCC were sufficiently concerned to contact Advocare to explore options to protect SR.
A referral was made to the McCusker nurse in June 2018. In October 2018 case notes record a phone call from DB to G to discuss the incident reported in September. This discussion included informing G of DB's awareness this was not the first time concerns had arisen, and that SCC had a duty of action and to report on incidents that occur. G talked about either refusing certain support workers or moving her mother's services to another organisation.
G discussed her concerns that support staff were doing things for her mother rather than encouraging her to do small tasks for herself. G wanted the support workers to take a more proactive approach encouraging her mother to participate in her own care.
G informed DB that she does participate in carers groups and is also aware that she is sometimes short with her mother in her tone. She said that it had always been like that with her mother and they have never been close. DB said to G that although it may have always been that way it does not make it right and staff are correct for reporting and they will take action accordingly.
In October 2018 a manager in an email notes that there have been more reports from support workers about G's tone in the way she speaks to SR. The McCusker nurse had spoken to G and recommended strategies but the manager states in this note that those have not been followed. Options to sensitively approach SR to talk to her about it were mentioned.
In November 2018 a further incident report is made of G yelling at SR for trying to pat the dog and that when the support worker got SR in the car she was shaking and commented that G didn't have to yell at her like that and appeared upset. The support worker says that G went 'right off at her mum, telling her to leave the dog alone as it has to eat its breakfast and that it was not eating properly and losing weight. G said that the dog had to go for an operation the next day, that she had lost one already and wasn't going to lose another one and [G] was swearing and said that she couldn't wait for [SR] to go to day club and out of her sight'. The support worker documents that SR was quite upset with it all and that she had said that 'if her son was here (as he was away) she [G] wouldn't get away with it.'
Subsequent documents and case notes demonstrate the support workers, G and case managers working together to organise Occupational Therapy (OT) reviews, physiotherapy and a special chair for SR.
On 28 March 2019 the club coordinator at Amana Living, Jennifer Crossing sent an email to the case manager asking for further information including SR's sons' names.
DB was able to name the three sons but that was all she knew. DB when prompted said that she was not able to find any contact details for the sons.
There are mentions throughout 2019 of carer stress. In case notes from 24 June 2020 a support worker reports finding cat faeces in SR's shower and vomit under SR's chair. When the support worker prompted SR to prepare her breakfast G raised her voice to talk to her 'quickly dishes in the sink!' 'SINK!' 'you are silly today'. SR was quite happy but when G started to raise her voice she was lost and not sure what to do.
G provided feedback when asked about this by the case manager to say she was at home and she would have cleaned up the cat faeces and vomit if someone had told her they were there.
In a home visit on 11 August 2020 MD notes discussion around the restructure of the fees and care plans. G continued to mention that she was unhappy with some aspects of support provision. This reflected a desire for support workers to encourage and prompt her mother to do as much as possible for herself and the fact that some jobs that G expected to be done by support workers were not being done. This included wiping down benches in the shared kitchen.
The notes document that throughout the conversation MD had to ask G to stop speaking so aggressively. She recorded 'throughout the review G spoke to her mum in a loud and demeaning way but always following up with a please or thank you. G did encourage her mum to do for herself and SR did give me a wink or two to say she was happy going along with it. SR made herself a cup of tea in the cup G leaves out for her and she went to fetch the biscuits so she does still have the abilities to do these tasks with prompts'.
At a follow-up home visit on 31 August 2020 'G became verbally aggressive with her mum swearing and raising her voice, this seemed to go on for about a minute, with G shouting at her mum for failing in her daily activities and not remembering. At this point [the author] did not intervene as G was so loud. After she seemed to calm down I advised G that what I had witnessed concerned me, and at this stage G told me not to patronise her, she had been abused by this woman as a child, she will speak to her whatever way she wants to. I advised G that whilst I was there and witnessed this I had to advocate on behalf of SR and the screaming wasn't appropriate. G then stated she would get Advocare to come and advocate on her behalf. G later made a comment stating she sometimes felt like smashing her mum and the support workers heads together as they frustrate her so much, so she just walks away and stays away'.
The notes continue 'on … [a] previous visit G had told her she had been abused by SR as a child and then her husband (her daughter's father) had abused her two boys, so she felt that her mother and her husband were like the same people and she couldn't separate her feelings of hate for them'. The case manager reiterated the need to seek support and counselling. G confirmed that her GP was aware of the situation and that she was familiar with carers support groups but hadn't contacted them. The case manager also suggested residential respite but G refused to access it again based on previous experience. G reported that SR deteriorated in respite on her last [admission].
On 24 September 2020 support staff again report feeling uncomfortable with the way that G is speaking to SR and noticed some bruises on the SR's upper arm.
On 5 October 2020 the day club support worker was concerned with the way G was speaking to SR. She was yelling at her to brush her teeth and then yelled at her to say she had not done it properly. SR could not find a handbag and G continued to yell at her without supporting her to try and find it.
Messages were left by the case manager seeking to complete the new home visit to discuss issues. A call was also made to the elder abuse hotline by MD and at this point it was advised that OPA could be contacted. The case notes state that the situation was being closely monitored for over two years and now there are concerns that things are becoming more volatile and support workers are seeing more abuse toward SR from G. It notes that attempts have been made to contact G for a number of weeks with no return phone calls.
A letter was posted to G on 29 October 2020 and on 5 November 2020. G called and stated that she had no time to meet with the case manager and her line manager. Strong language was used to express how G felt about support workers. Weekend respite arrangements were offered in November 2020 and a telephone call was made on 29 December 2020 to G to discuss concerns.
This included bruising on her SR's arm that had been reported by the support worker. G stated she grabbed SR by the arm the previous week to stop her from touching a boiled kettle, and that SR was bruising a lot more now due to her skin fragility and also had some neck bruising because of picking at some dry skin.
The case manager indicated that there were ample funds to provide add on services.
Contact was made with the Tribunal on 31 December 2020 to explore the process for making an application.
In February 2021 service providers note significant areas of bruising on SR's knee and back. SR could not recall how that occurred and thought they were probably from a fall. The support worker tried to discuss this with G. She didn't appear to have been aware of the bruising but was agitated and distracted by the fact that the support worker had dressed SR in 'the wrong clothes.' G directed SR down to the bedroom to get changed immediately.
On 30 February 2021 a phone call was received from G declining any increase in services. Records note that G and her daughter were out all day on one day of the weekend and G thought that the bruising had probably come from a fall during that time. An OT referral was made.
The case manager was contacted by C, after he received notice of hearing from the Tribunal. In the case note written on that day (30 March 2021), MD records that she advised C that on previous occasions she had asked for further contact details for the siblings but had been declined permission for this by G. The case notes say that C said he understood as G wanted to keep control of SR's finances but he wanted to be listed and shared his email address and phone number. This appears to be the first time that C and the service providers were in direct contact.
Taken as a whole I find the records of the applicant indicate a recurring pattern of concerning communication from G to SR over three years, despite attempts by SCC to intervene supportively and to advocate for SR. There is increasing concern regarding physical risk to SR from both being left alone and sustaining bruising from unobserved falls, and from being grabbed sufficiently firmly by G to bruise. There is also a pattern of G wishing support workers to encourage her mother to do as much as possible for herself, which does not seem to take into account SR's disease progression. They also indicate that the service providers were unaware of the existence of the EPG and EPA, and had no means of contacting C, who was the person SR had elected to make decisions for her when she was not able to do so, as neither G nor C had informed them.
In her service provider report of 31 March 2021 MD explains that she finds SR vulnerable to financial exploitation. She says that SR does not have capacity to follow the advice of her medical professionals and that G decides the services that SR needs. SR has no input into this and accepts the support. She notes that child safety gates are placed in the home to prevent SR from wandering into the areas where G and her daughter live. She notes her concerns for SR's health and well-being because of the reports of verbal abuse and the photos showing bruising, swelling and the fact that SR is reporting pain.
At the hearing MD and DB stated that they had ongoing concerns regarding SR's welfare. DB stated that G had also told her about the historical experience of trauma in the home. Both case managers felt that the level of aggression and carer stress had become worse. They were worried because G had been declining additional assistance that would have helped with this. MD stated that there were no signs of improvement in the situation despite attempts to provide additional support. She was also concerned that she had not been able to contact other family members because she had not been given those contacts by G.
G stated that the EPA had originally been done with SR while SR's husband was still alive in about 2007. She said that until recently SR was still in a position to express her wishes. She vehemently denied hitting SR but did say that she might put her hands on SR to direct her when she is confused and that SR bruises easily. She stated that all care was organised by her. When the level 4 package came through G did take up the opportunity to have increased respite and was now in the process of going through Carer Gateway to organise that.
G thought that they were still coping at home quite well and that being taken away from home is detrimental for SR, because when she is not encouraged to be as independent as she can be she loses skills. She noted that she had accepted additional evening support worker assistance with personal care for SR.
G felt that things had been taken out of context. She noted that she was still going through some pretty nasty things in court cases. She stated that she had been having counselling and did not take up respite earlier because at the time they didn't have the funds - they were needed for the OT chair and toilet rail. G acknowledged that she did get very frustrated and has also asked on many occasions that people not do things for SR. She has rearranged commitments to minimise the amount of times that SR is on her own.
J left Perth in 1970 and has been based interstate since then. One of his motivations for leaving Perth was to escape the family conflict. He was aware of SR's care arrangements and was surprised when SR invited G to return to her home but he understood after discussion that she was setting up long-term care arrangements for herself and was relatively aware of the risk of ongoing conflict. J has not been home to observe things personally since 2018. He was aware from his brothers of SR's decreased capacity from 2018. When talking to SR on the telephone he did find that she become increasingly repetitive but was still able to have current political opinions. He expressed a preference for family to take responsibility for SR's care.
S said that he would think that SR had been unable to make her own decisions in the last three to six months. SR had a pattern of being paranoid about anyone else making decisions for her. S had been visiting at least once a fortnight for an hour or more a time and was able to have relatively intelligent conversation with SR until about three months ago. S had never seen her unhappy or distressed. S agreed that there had always been conflict in the family historically. S acknowledged that G has a pattern of communicating aggressively and inappropriately and that they have talked to G about that. The brothers were aware of the risk and were talking with one another about it. They did discuss with G the need for respite. At times G approached them but they were not really able to assist because they were too busy and did not work out what options might be available. S was of the opinion that SR was still better off being at home.
C stated that his mother was clear that she wanted to be sustained at home for as long as possible and that she had invited G and her daughter to live with her while she still had capacity. He thought that 'G had done a great job'. C had organised to take his mum on a weekly visit during the day to his own home in part to make sure that things were okay. He had discussed his concerns with his brothers and there was a mutual agreement that the current arrangements was still in SR's best interests.
C acknowledged that he did not contact the service providers and was therefore unaware of their concerns until this application was made. He accepted G's version of how things were going. He stated that he was going to seek a SAT hearing some 18 months ago to explore whether permanent residential aged care was appropriate for SR but he would not explore any options without G's involvement.
Ms O, investigator, had discussed the issues prior to hearing with the applicant and with C. She noted that in a setting where SR did not have capacity, the EPA had not been activated. G had been managing the finances informally up to this point. She felt there was either a need for the EPA to be activated or for an administrator to be appointed.
In regard to guardianship Ms O had concerns that everyone seemed to have been aware of potential risks to SR for some time (maybe years) but no one was prepared to challenge G. G was therefore able to manage and withhold information from the service providers and her brothers. In terms of who should be appointed, the fact that nobody had acted until the Tribunal hearing made it problematic to consider any of the family members. It appears that they had a lack of understanding of what could or should have been done. Ms O stated she could see the context that underpins this reluctance to intervene.
C acknowledged that he was unaware that he had the power under the current EPG to make decisions for SR whenever she lacked capacity. I am satisfied that the evidence given by C, S and J indicates that they were aware that there were risks to SR's welfare related to having G live with her. They also all appear to have realised that at least in the last three to six months SR had lost the capacity to make any decisions for herself.
C's acknowledgement that he first considered making an application to the Tribunal 18 months ago, and the evidence of the case note written by MD after her discussion with C on 30 March 2021 when he indicated that he understood that G wanted to keep control of SR's finances mean that I lack confidence in C's ability to make decisions in SR's best interests at this time.
G has stated to both of SR's case managers over the last three years that she is unable to separate her feelings of hatred towards her exhusband and from her experience of abuse from her mother during childhood. I find that the failure to proactively contact the service providers, in the context of C and his brothers' knowledge of this history, and acknowledged awareness of the risk that the current care arrangements might pose to SR, leaves me unable to find the EPA and EPG to be sufficient protection for SR.
I note the submission of C's wife that they had been taken by surprise by the extent of the evidence submitted by MD. However I also note that the reason that the brothers were previously unaware of the level of concern by the service providers, despite their awareness of the risk and the fortnightly visits that C arranged to try to ensure he knew what was going on, was because they had not made contact with the service providers or given them C's details, in circumstances where they knew SR had lost capacity and where he was her enduring guardian. C acknowledged at the hearing that he did not understand the effect of the terms of that document.
Both the EPA and EPG have G as a substitute donee. In the context of the evidence that she has told both the case managers that she is unable to separate her hatred for her ex-husband from her relationship with SR, I cannot find that any instrument that includes G as a substitute decisionmaker is acceptable as a less restrictive alternative that will meet the needs of SR. The comments of C that he thinks that G has done a great job, in the face of the evidence from the service providers which was explored at hearing, is not consistent with the role that the substitute decision-maker for SR needs to play.
I acknowledge that G's personal circumstances have been extraordinarily difficult. However the substitute decision-maker for SR has to act as an advocate for her. This may mean that they may need to make decisions that G doesn't like, or that impact G. It appeared at the hearing, that it would be difficult for C to separate his own feelings of sympathy for his sister from making decisions in the best interests of SR.
An enduring guardian has the same obligation to act in the best interests of the donor as a guardian does under s 51 of the GA Act. This includes acting as an advocate[5] for SR and to protect her from neglect, abuse and exploitation[6].
[5] GA Act s 51(2)(a).
[6] GA Act s 51(2)(d).
C's decision to allow G to informally manage SR's finances, when there was an EPA that SR had executed appointing C, which needed to be activated through an application to the Tribunal, is also a concern for me.
Section 107 of the GA Act states that the obligation of the donee of an EPA is to exercise reasonable diligence to protect the interests of the donor. Failing to activate the EPA when the donor lost capacity does not appear consistent with this.
For those reasons I do not find that the EPA or EPG are sufficient to protect the health, safety and financial affairs of SR. The balance of the evidence, particularly the contemporaneous case notes, persuades me that SR's health and safety are at risk, and have been since 2018 due to verbal abuse, expectations of her ability to manage tasks that have not changed despite SR's deteriorating cognition, being left alone and sustaining injuries, and being redirected sufficiently forcefully that she sustains bruising to the arm. They are also at risk because of the aggressive communication style of G to support workers and case managers, and the failure to share relevant information with the enduring guardian and the service providers.
I therefore find that SR is in need of both a guardian and an administrator.
Who should be appointed and what should the scope of the order be?
For the same reasons that I find that the EPA and EPG are not less restrictive alternatives to the making of orders, I also find that there is no family member who I can consider suitable for appointment for the majority of SR's needs.
The history of conflict in the family, the failure to act to ensure that there was communication with the service providers, and the reluctance to challenge G mean that I cannot appoint the brothers in relation to areas of SR's life that may impact on G.
The brothers were alive to the potential risk of the current arrangements to SR. SR's actions in executing the EPA and EPG may be seen to demonstrate that she was aware that at some time in the future she might need a substitute decision-maker, and was taking steps to mitigate risk. The brothers indicate that they were surprised by SR's decision to invite G to live with her, and that they felt this was likely a calculated risk to try to maximise the length of time that she could remain in her own home. Knowing this, SR's sons do not seem to have recognised that they then had a responsibility when SR lost capacity to take action in accordance with s 110H of the GA Act, which refers to s 51. Specifically, C and S had an obligation under the EPG to act in SR's best interests under s 51(2)(d) - to protect her from neglect, abuse or exploitation.
SR's shortterm memory loss prevents her from remembering recent events, and therefore she is less able to ask for assistance from others in response to suffering abuse in their absence. The evidence is that SR has experienced sustained verbal abuse over years leading to concern from service providers and support workers, which they have attempted to resolve by advocating for SR, offering increased services and providing details of support services for carers. The brothers' failure to identify the need to ensure they were in contact with the people who were observing what was happening day-to-day in SR's home is not consistent with being able to perform the job of a guardian. The fact that they did not make the service providers or doctor aware of the fact that there was an EPG, and that when SR was not capable, C was the one with legal authority to make personal decisions, is inexplicable in circumstances where they were aware of SR's cognitive decline.
The Public Advocate's recommendation was that the Public Trustee be appointed as the plenary administrator and the Public Advocate as the limited guardian for SR for a term of one to two years.
I note that C is a medical practitioner, and that SR has expressed her confidence that he could work things out. Given SR's age there is a likelihood that medical treatment decisions will arise for her. I do not have concerns regarding C's ability to make medical treatment decisions in SR's best interests. I will therefore adopt the recommendations of the Public Advocate, other than splitting the authorities of the guardian so that C is guardian for medical treatment decisions and the Public Advocate is the guardian for accommodation and services decisions.
Although I have not been provided with any information in regard to the details of SR's estate, decisions of the guardian related to accommodation and services will need to be supported by her administrator. The current informal arrangement where G has been managing SR's finances is not satisfactory, as it is not subject to oversight, and leaves G with control in circumstances where her ability to make decisions in the best interests of her mother appear compromised from the evidence detailed above. The failure to take action earlier and the emotional compromise of the brothers between SR's best interests and what G wants leads me to find them unsuitable to make financial decisions for SR which could foreseeably impact G. It is clear from the medical evidence that SR lacks capacity in regard to all aspects of her finances and therefore the Public Trustee will be appointed as the plenary administrator.
What should the term of the order be?
Given the willingness of family members to be appointed, and the possibility that these independent appointments may lead to a change in circumstances that open up the possibility of a family appointment in a year or two, I will make a relatively short order in the hope that at the next review it may be possible to broaden the scope of family appointments.
The decision of the Tribunal
On 8 April 2021 I made the following declarations and orders:
The Tribunal declares that the represented person, SR is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $1,000.00 per annum on gifts on behalf of the represented person.
3.The enduring power of attorney dated 16 December 2011 by which the represented person appointed C to be their attorney, is revoked.
4.The administration order is to be reviewed by 8 April 2022.
Guardianship
5.C is appointed limited guardian of the represented person with the following functions:
(a)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
6.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia 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)to determine the services to which the represented person should have access;
7.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.
8.The guardianship order is to be reviewed by 8 April 2022.
Subsequently on 20 April 2021, I made the following order:
Pursuant to s 73(1) of the State Administrative Tribunal Act 2004 (WA), the Tribunal orders:
1.The enduring power of guardianship by which SR appointed C on 4 November 2011 is suspended until further order of the Tribunal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
21 MAY 2021
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