VA
[2024] WASAT 68
•17 JULY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: VA [2024] WASAT 68
MEMBER: MS R BUNNEY, MEMBER
HEARD: 8 APRIL AND 21 JUNE 2024
DELIVERED : 17 JULY 2024
PUBLISHED : 17 JULY 2024
FILE NO/S: GAA 1778 of 2024
GAA 704 of 2024
VA
Represented Person
JA
First Applicant
TC
Second Applicant
Catchwords:
Guardianship - Administration - Enduring power of attorney - Revocation of enduring power of attorney due to technicality - Executor of deceased estate lacks capacity - Family conflict - Appointment of private administrator - Appointment of private guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 110ZD
Result:
Private administrator appointed
Private guardian appointed
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| First Applicant | : | Z Thorton on 8 April 2024 and N Hope on 21 June 2024 |
| Second Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| First Applicant | : | Forbes Kirby Lawyers |
| Second Applicant | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons for decision were delivered orally on 17 July 2024 and have been edited only to anonymise parties, add headings, correct grammatical errors and some infelicity of expression, without variation to the substance thereof.)
Introduction
VA is an 84-year-old woman who received a diagnosis of dementia in 2021. Her husband RA passed away in August 2023. Shortly after the funeral, their sons KA and NA opened the safe in VA's home and removed gold nuggets and $98,000 in cash. They say this was to protect the cash and gold from their sister JA.
JA was unaware that the safe had been substantially emptied until four months later. She had arranged for the family to attend VA's home to open the safe and record what it held. The day before the safe was to be opened, JA's son EC received a call from his uncles, who told him what they had done. This was the end of the cooperative relationship that had existed between JA and NA as carers for their mother.
JA and NA previously worked well together using VA's diary to record the arrangements for their mother's care. VA was completely reliant on the diary and unable to remember what had been arranged with each of JA and NA on a day-to-day basis. VA also has a large clock in her kitchen showing the time, day of the week and date that she uses to orient herself. JA and NA have both alleged that the diary was tampered with by the other to interfere with each other's plans with their mother.
JA made the application to the Tribunal for a guardianship order for VA. JA's daughter TC made an oral application for administration at the first hearing in April 2024. I appointed the Office of the Public Trustee (Public Trustee) as VA's interim administrator that day to secure the cash and gold. The matter was referred to the Office of the Public Advocate for investigation.
I have decided, on a final basis, to appoint TC as VA's administrator and EC as her limited guardian. These are my reasons for doing so.
Three questions the Tribunal must answer
The starting point for the Tribunal, when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments in respect of matters relating to their estate and their person.
It is only when the 'presumption of capacity' has been set aside that the Tribunal can consider making guardianship and administration orders. When deciding whether or not to appoint a guardian or an administrator for VA, the Tribunal must answer three questions:
(a)Does VA lack the capacity to make her own decisions about her personal and financial matters?
(b)If so, is there a need for the Tribunal to make an order to appoint a guardian or an administrator? Or is there a less restrictive way for decisions to be made in VA's best interests?
(c)If there is a need for an order, who should be the guardian or administrator, what functions or powers should they have, and how long should the orders run before they are reviewed?
The Tribunal will make findings of fact about capacity by reference to the evidence of medical and allied health professionals and also to lay evidence. I have considered all of the evidence filed with the Tribunal and need not set it out in detail. The relevant features are summarised later in these reasons.
Question 1 - does VA lack the capacity to make her own decisions about her personal and financial matters?
(1)(a) When can an administrator be appointed?
To appoint an administrator for VA, I must be satisfied that she is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate.
(1)(b) Does VA have a mental disability?
VA was assessed by geriatrician Dr S in 2021 and diagnosed with Alzheimer's dementia. VA scored 17/30 on a Montréal cognitive assessment test performed at that time. I find that the diagnosis of dementia falls within the meaning of 'mental disability' as defined in the GA Act. No one that attended the Tribunal hearings disputed the diagnosis.
I will next explain why I am satisfied that VA is, by reason of the mental disability, unable to make reasonable judgments in respect of matters relating to all of her estate.
(1)(c) Does the mental disability cause VA to be unable to make reasonable judgments about her estate?
A person's 'estate' includes their real and personal property, all assets and liabilities, and legal issues that relate to financial matters. In this case, VA's estate also includes RA's estate (Deceased Estate) as VA is the sole beneficiary.
Further, RA appointed VA to be the executor of his Will. The Will states that if VA predeceased RA or failed to survive him for 28 days, JA and NA would be the substitute executors.
As VA has lost capacity and is unable to act as the executor, prior to the application for administration being made to the Tribunal, JA and NA agreed to make an application to the Supreme Court to be recognised as the substitute executors of the Will. However, until that application has been filed and accepted by the Supreme Court, JA and NA are not legally recognised as the substitute executors.
The events that occurred in relation to the Deceased Estate provide a clear example of how VA is unable to make reasonable judgments about her estate. The events can be summarised as follows:
(a)VA told the investigator from the Office of the Public Advocate (Investigator) in March that she did not know the combination of her safe. As far as she knew, it had not been opened by anyone since her husband's death, with nobody having her permission to do so;
(b)KA and NA (the Brothers) say they removed the cash and gold for safekeeping, exercising NA's purported authority as substitute executor;
(c)the Brothers say it was necessary to take possession of the cash and gold to protect it, as 'a large percentage' of RA's personal items, such as camping equipment, a fridge and gold detectors, were taken from the family home by JA. JA denies this, save to say that she did take the three gold detectors after the Brothers had taken the cash and gold, to protect the gold detectors on her mother's behalf;
(d)the Brothers were concerned that if the gold was removed by JA, there would be no recourse for VA to recover it;
(e)the Brothers deposited the cash in a bank account in their joint names and the gold was held in NA's safe;
(f)the initial position of the Brothers was that all the cash belonged to RA and was part of the Deceased Estate;
(g)the Brothers later decided that half of the cash belonged to VA. They offered to deposit half of the cash in her bank account. However, VA was unable to negotiate this, and no one had the authority to negotiate or agree this on her behalf;
(h)the Brothers' position is that because RA was the prospector, the gold belonged to him and is part of the Deceased Estate;
(i)the Brothers have focused on determining, from a legal perspective, what assets are part of the Deceased Estate. Their view is that assets that were part of the Deceased Estate would be dealt with in the probate application, which would come under NA's claimed authority, thus allowing the Brothers to retain possession of the gold; and
(j)the Brothers would prefer to sell the gold to avoid any issues when their mother eventually passes.
When I advised the parties at the hearing in April that I would be appointing an interim administrator for VA to take possession of the cash and gold, the Brothers said that they agreed for JA to be appointed. I did not appoint JA as it was clear on the evidence, and I so find, that the Brothers would not give JA possession of the cash and gold.
I am satisfied, and I find, that but for the appointment of the Public Trustee, the Brothers would have continued to maintain possession of the gold, relying on NA's purported authority as substitute executor.
In my view, there is no doubt that the diagnosis of dementia is the cause of VA's inability to make reasonable judgments in respect of her estate. VA was unaware that the cash and gold had been removed from her home. She is the sole beneficiary of the Deceased Estate and she has been unable to enter into discussions or advocate for herself in relation to the return of the cash and gold from her sons. VA told the Investigator that she got on very well with her sons, but their relationship with JA was 'a bit iffy' although she did not know why.
The evidence set out in the Aged Care Assessment Team assessment, which I accept, is that VA worked as a shorthand typist and stenographer in law firms when she was younger. VA was therefore a capable, clever woman who was able to work and earn her own income. I have no doubt that she would have been able to assert herself and demand compliance from her children before she became unwell.
I am therefore satisfied, and I find, that the mental disability is the cause of VA's inability to make reasonable judgments in respect of her estate.
(1)(d) Conclusion on capacity to make financial decisions
Having regard to the documentary and oral evidence provided to the Tribunal, I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of VA's ability to make reasonable judgments in respect of her estate.
VA is therefore a person for whom I can appoint an administrator.
(1)(e) When can a guardian be appointed?
To appoint a guardian for VA, I must be satisfied that she is over 18 years of age and that one or more of the following criteria apply:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
I note VA's significant dementia-related memory loss and her reliance on the written diary to see what she is doing each day because she cannot remember. She also relies on the large clock in her kitchen to remain orientated. VA has a list of tasks written in her diary that she busies herself with and completes each day. VA's children take her to all appointments and supervise her every night.
(1)(f) Conclusion on capacity to make personal decisions
I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of VA 's ability to make reasonable judgments in respect of her personal matters. I am satisfied that due to her illness, and particularly her memory loss, she is unable to look after her own health and safety, unable to make reasonable judgments about her person and she is in need of supervision to protect her health and safety.
VA is therefore a person for whom I can appoint a guardian. I next turn to explain why I am satisfied that VA is in need of a guardian and an administrator.
Question 2 - is there a need for orders or a less restrictive option?
Having regard to that evidence, there is no doubt that VA requires assistance to deal with her estate and to make decisions about her personal matters, other than of the most simple kind. The question I need to answer at this stage is not whether she needs assistance, but whether she needs an administrator or guardian to be appointed for that purpose. I must adopt a less restrictive option if possible.
(2)(a) Is there a need for an administration order?
VA signed an enduring power of attorney in 2010 to appoint JA and RA as her enduring attorneys (2010 EPA). The 2010 EPA was, up to now, accepted by financial institutions despite a technical irregularity. I revoked the 2010 EPA when I appointed the Public Trustee as VA's interim administrator. VA is therefore in need of someone to make financial decisions on her behalf, as there is no longer an attorney with the legal authority to do so.
VA also needs someone to deal with the Deceased Estate as she is the executor. As set out in these reasons, the Brothers have taken assets from VA's home without her knowledge or consent. The cash and gold are VA's assets, regardless of whether she owns them personally or as the sole beneficiary of the Deceased Estate. The Brothers have attempted to negotiate a transfer of half of the cash to VA, but there is no one with the legal authority to negotiate on VA's behalf in order to settle or progress the matter.
I am therefore satisfied on the evidence before me that there no less restrictive means available for financial and legal decisions to be made in VA's best interests other than by the appointment of an administrator.
(2)(b) Is there a need for a guardian?
The previous arrangements where decisions were made and managed informally via the written diary worked well. It only deteriorated when each side accused the other of diary-tampering. Due to the breakdown of trust between JA and NA, the informal arrangement is no longer an appropriate way for decisions to be made in VA's best interests.
VA requires someone to have the legal authority to, for example, make decisions and sign documents to bring about a change in accommodation, and to give informed consent to medical treatment. She has not signed an enduring power of guardianship, and no longer has the capacity to do so, so this is not available as a less restrictive option.
I am therefore satisfied on the evidence before me that there no less restrictive means available for personal decisions to be made in VA's best interests other than by the appointment of a guardian.
VA's views and wishes
The Tribunal must take into account VA's views and wishes. VA's wish, as recorded in the first enduring power of attorney she signed in 1995 was that JA and RA would jointly and severally manage her finances. The 2010 EPA recorded the same wish.
VA told the Investigator that the only person she wanted to make decisions for her was JA. It is not necessary for me to make findings in this regard, but I observe that JA appears to have been treated differently from her Brothers, for at least the last 30 years. I also observe that if one child appears to be favoured over others, even if inadvertently, it can cause deep and lifelong resentment and conflict between the children.
At the time of the final hearing in June, JA was no longer consenting to an appointment as VA's administrator or guardian due to the ongoing conflict with her Brothers.
I told VA that TC was now proposing herself for appointment as administrator. VA was very clear that she wanted her granddaughter TC to manage her money.
In terms of guardianship, NA and EC were both proposing themselves to act as VA's sole guardian. VA told me that she wanted EC to be her guardian to make decisions about her personal matters.
I next turn to explain how I decided who should be appointed as the guardian and administrator, what functions are required and how long the order should run for.
Question 3 - who, what and how long?
(3)(a) Who should be the administrator?
When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of VA, is suitable to act as the administrator of her estate and will be able to perform the functions vested in them.
TC is the only person that has proposed themself for appointment. I find that TC is over the age of 18 years and has consented to act as the administrator. TC is a chartered accountant and has worked in the accounting profession for 15 years. She is an associate director of an accounting firm and has assisted clients with their role as administrator. I am satisfied that TC will be able to perform the functions vested in the administrator, particularly in relation to the reporting requirements to the Public Trustee.
Both EC and TC have a very close relationship with VA. Their father died when they were aged 10 and 8 years old respectively, and they, along with JA and their younger brother, moved into their grandparents' home. They view their grandparents as their 'second parents' who would pick them up after school and care for them. RA taught the children how to drive. As young adults, they would continue to have lunch with their grandparents at their home on a regular basis.
The Brothers raised a concern about the appointment of TC and the risk that she may be influenced by JA. I do not accept that TC would allow her mother's views to influence her own view about what is in her grandmother's financial interests, particularly in light of TC's professional background. As TC is a chartered accountant, I discussed with the Brothers the fact that if TC did not diligently manage VA's financial interests, there could be significant consequences for TC professionally.
TC stated that she would act in her grandmother's best interests and I accept her evidence as sincere and truthful. I am satisfied that TC's relationship with her grandmother exists independently from her relationship with her mother.
The Brothers preferred the appointment of the Public Trustee as administrator, even though such an appointment would cause VA to incur not insignificant fees, particularly if her home was sold. Because of TC's professional background, VA will have the benefit of her estate being managed by a chartered accountant without incurring any fees. This is clearly in VA's best interests.
I am also satisfied that TC is suitable to be appointed due to her compatibility with EC as the guardian. Following my discussions with EC, discussed further below, I am satisfied that TC and EC will be able to work together and navigate the conflict between their mother and their uncles, and make decisions in their grandmother's best interests.
The Investigator endorses the appointment of TC as administrator. The majority of the family, including NA's wife, agreed that TC was the most appropriate person to act as VA's administrator.
I am satisfied for the reasons set out above that TC is suitable to be appointed as her grandmother's administrator, and I will give effect to VA's wishes.
(3)(b) What should the administrator's powers be?
I am satisfied that it is appropriate that the administration order be a plenary order, which will allow the administrator to deal with all aspects of VA's estate in her best interests.
NA raised a concern about whether the Brothers would be provided with information about VA's estate. I observe that it is TC's decision about whether or not she discloses VA's confidential financial information to any other person. TC is not obliged to disclose that information to anyone other than the Public Trustee.
It is also TC's decision, as administrator, as to whether she allows the substitute executors to continue with the application for probate of the Deceased Estate. Based on the difficulties that have occurred so far, TC may form the view that it is in VA's best interests, as the sole beneficiary of the Deceased Estate, that an application is made for letters of administration with Will annexed, to ensure that there are no further delays or interference with the finalisation of the Deceased Estate. A plenary administration order will allow TC to make such an application.
I will also include a gifting authority of $1,000 per year so the administrator can purchase gifts on VA's behalf, as the information before the Tribunal is that VA has historically bought presents for her children and grandchildren. I note that NA raised the issue that his children did not receive a Christmas present from VA. I trust that TC will ensure that all family members that would usually receive a gift from VA will continue to receive one.
(3)(c) Who should be the guardian?
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of the person, is suitable to act as the guardian and is not in a position where their interests conflict or may conflict with VA's interests. I must also be satisfied that the proposed guardian will be able to perform the functions vested in them.
NA and EC have proposed themselves for appointment as VA's sole guardian. I find that they are over the age of 18 years and have consented to act as the guardian. I am satisfied that there is no conflict of interest between either of NA and VA, or EC and VA, that would concern the Tribunal.
The Tribunal can only appoint the Public Advocate as the guardian for a person if there is no one else willing or suitable to act. As NA and EC have both proposed themselves for nomination as VA's sole guardian, it is necessary that I make findings about their suitability. If I find that neither of NA or EC are suitable to be appointed, I can then appoint the Public Advocate as VA's guardian.
Consideration of NA
NA is clearly a devoted and caring son. He and his wife run a business where they care for disabled and vulnerable people. However, I am satisfied, and I find, that NA is not suitable to be appointed as VA's guardian and substitute decision-maker for three reasons.
The first reason is the ongoing conflict and mistrust between NA and JA, who are responsible for sharing the bulk of VA's care. The Tribunal must take into account the desirability of preserving the existing relationships within VA's family, and I am concerned that appointing NA as guardian may cause the division in the family to increase.
I have reservations about NA's ability to perform the functions to be vested in VA's guardian and not allow his conflict with JA to interfere with decisions that must be made in VA's best interests. I form this view on the basis of NA's actions as co-substitute executor with JA and the treatment of the cash and gold, particularly around the lack of communication with the family and VA about the actions he took. The family only became aware that the cash and gold had been removed when JA started a transparent process to count and move the cash and gold.
NA raised a concern that if EC was appointed as guardian, he would be excluded from caring for VA, although no evidence was provided as a basis for this concern. There is a risk, in my view, that if NA was appointed as VA's decision-maker, the same risk may exist for JA.
The second reason is NA's view that TC is unsuitable to act as administrator, despite clear evidence of her qualifications and experience. I am not confident that NA would be able to work cooperatively with TC if he was appointed as the guardian. I am concerned that NA's animosity towards JA blindly extends to her children. The basis for my view is NA's suggestion that the Public Trustee be appointed as VA's administrator in preference to a family member who is a chartered accountant and will not charge VA any fees.
The third reason is that VA wants her grandson EC to be her guardian. I am therefore satisfied, and I find, that NA is not suitable to be appointed as VA's guardian for those three reasons.
Consideration of EC
I am satisfied that EC will be able to perform the functions vested in the guardian. EC is a business owner, so he has the flexibility and availability to be VA's substitute decision-maker. EC's wife is a health professional and works with the elderly, so EC will have the support of his wife and her expertise when making decisions in VA's best interests. EC has clearly already thought about the decisions that may need to be made in his grandmother's best interests.
NA has expressed concerns that if EC was appointed as guardian, as JA's son, he may prevent or restrict NA from caring for VA. EC's view is that the current care arrangement, with VA spending overnight time in alternating weeks between JA and NA's homes, is working well. EC said that this arrangement will not change unless it is necessary in VA's best interests. I note that VA's name is on the waitlist for two residential aged care facilities and has been for some time.
I am satisfied that EC will be able to navigate the differences of opinion within the family, particularly between his mother and his uncles. EC has always had a good relationship with his uncles, evidenced by the fact that EC was contacted by his uncles to advise that the cash and gold had been removed from VA's safe. EC views himself as neutral and states he will be transparent with all parties being notified about the decisions he will make in VA's best interests.
I am satisfied that the relationship between EC and his grandmother is independent from the relationship he has with his mother. I accept EC's evidence that he will act in his grandmother's best interests alone and will not be influenced by the views of his mother or his uncles. There is no evidence before me that EC has taken any actions that were against the interests of his grandmother.
Finally, I find that EC will be able to work cooperatively with TC as the administrator. TC has been the accountant for EC's business for around 15 years so in addition to being siblings, they already have a working relationship. TC and EC say that they want to look after VA in the same way that she has always looked after them. I am satisfied that TC and EC will impartially make decisions in VA's best interests.
The Investigator endorses the appointment of EC as guardian, as do all other family members save for KA, KA's wife, NA and NA's wife. VA wants EC to be her guardian, and I will therefore give effect to VA's wishes.
(3)(d) What should the guardian's functions be?
Medical treatment
I am satisfied, and I find, that VA requires a guardian to make decisions about her medical treatment. Section 110ZD of the GA Act authorises VA's children to make medical treatment decisions for her. However, due to the conflict between JA, NA and KA, it is appropriate in my view that all health professionals that treat VA have clarity around who is able to make decisions and give informed consent to medical treatment for VA.
Accommodation
VA requires a guardian to be able to make decisions about accommodation. At some point, VA's illness will progress to a point where she requires a higher level of supervision that can only be provided in a residential aged care facility.
Services
VA requires a guardian to make decisions about services, specifically in relation to carers attending her home to provide a greater level of supervision, so she can continue to spend time in her own home during the day, for as long as possible.
Contact
VA requires a guardian to make decisions about how her time will be split. The allegations of diary tampering were the catalyst for the application to the Tribunal for the guardianship order. I find that it is in VA's best interests that her guardian has the authority to decide who she will have contact with and the extent of that contact.
Conclusion in relation to guardianship functions
I am therefore satisfied that there is a need for a guardian appointed by the Tribunal to make decisions for VA about her medical treatment, accommodation, services and contact.
(3)(e) How long should the order run for before it must be reviewed?
When making orders, the Tribunal is required to fix a period for the review of the order, the maximum period of time allowed being five years. The medical evidence is clear that VA has a diagnosis of a progressive illness such that her need for a guardian and an administrator will be lifelong.
Therefore, these orders are to be reviewed within the maximum term possible which is within five years of the date of the orders.
Orders
GAA 1778/2024
The Tribunal declares that the represented person, [VA] 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.
The Tribunal orders:
Administration
1.The order made on 8 April 2024 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
2.[TC] of [address] 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).
3.The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.
4.The administration order is to be reviewed by 17 July 2029.
GAA 704/2024
The Tribunal declares that the represented person, [VA] is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
The Tribunal orders:
Guardianship
1.[EC] of [address] is appointed limited guardian of the represented person with the following function:
(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 make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)to determine the services to which the represented person should have access.
2.The guardianship order is to be reviewed by 17 July 2029.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
18 JULY 2024
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