VGR - [2006] WASAT 64

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: VGR [2006] WASAT 64

MEMBER: MS F CHILD (MEMBER)
MR J MANSVELD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD: 1 NOVEMER 2005 AND 6 DECEMBER 2005

DELIVERED : 17 MARCH 2006

FILE NO/S: GAA 1840 of 2005

BETWEEN: JW and BR
Applicants
AND
VGR
Represented Person

Catchwords:

Guardianship and Administration Represented person with dementia Spouse suffering "carer stress" Need for orders as less restrictive alternatives ineffective to protect the interests of the represented person No suitable family member Public Trustee appointed plenary administrator Joint appointment of Public Advocate and spouse as limited guardians

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(f), s 43, s 43(1), s 43(1)(b), s 43(1)(c), s 43(2), s 44(2)(a), s 44(5), s 64, s 66, s 66(b), s 69(4), s 70, s 71(5), s 72(3), s 77
Mental Health Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 78(2)

Result:

1. Public Trustee appointed administrator
2. Public Advocate and spouse appointed limited guardians

Category: B

Representation:

Counsel:

Applicants: Self-represented
Represented Person : Self-represented

Solicitors:

Applicants: N/A
Represented Person : N/A

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The State Administrative Tribunal appointed an administrator and guardians under the Guardianship and Administration Act1990 (WA) for a 67yearold woman suffering dementia with significant behavioural abnormalities.
The Public Trustee was appointed as the plenary administrator to act on her behalf in relation to financial matters.
The Public Advocate was appointed jointly with the spouse of the woman as limited guardian to decide where she was to live and to consent to health care and medication to restrain the woman should this be in her best interests. The Tribunal considered that while it was appropriate to recognise and preserve the role that the spouse had played in the life of the represented person as her husband and primary carer, there was a need for independent input from the Public Advocate, as joint guardian, into the decision of where the woman was to live on her discharge from hospital.
On the evidence before the Tribunal, the financial decisions made by the spouse following the sale of their jointly owned house a year before had not been in her best interests, and at the time of the hearing, her assets had been significantly reduced.
The poor financial decisionmaking had also had an adverse impact on the care of the woman, as the spouse had been unable to pay for respite care for his wife at a time when he acknowledged he was suffering severe stress which compromised his ability to care for her.
Because of this background, there was doubt about the ability of the spouse to act alone in the future to make decisions in the best interests of his wife. The Tribunal considered that the joint appointment of the Public Advocate, which is provided for in the legislation, would allow decisions to be made regarding the accommodation and care needs of the woman without excluding her spouse from this process.
These reasons are produced at the request of the Public Advocate pursuant to s 78(2) of the State Administrative Tribunal Act 2004 (WA).

Applications

The applications before the Tribunal are for the appointment of a guardian and an administrator for VGR (the represented person) pursuant to s 43 and s 64 of the Guardianship and Administration Act 1990 (WA) (the GA Act).
The applicants are JW, the Case Manager from the Park Seniors Mental Health Service (the applicant) and BR, the spouse of the represented person (the spouse).
To protect the privacy of the represented person, the names of all parties will be anonymised in these reasons consistent with the practice of the Tribunal in proceedings brought under the GA Act.
The applications were first heard on 1 November 2005 (the first hearing) and adjourned to 6 December 2005 (the second hearing) for further financial information to be provided by the spouse and for investigation by the Public Advocate of the need for a guardian.
Both hearings were attended by: the applicant; the spouse; the daughters, KM and JM; BM, a soninlaw; AC, a carer support worker from the Park Seniors Mental Health Service (PARK), and a representative of the Public Advocate.
The first hearing was also attended by the represented person and her daughter, SW.
During the first hearing, the daughters, JM and SW, participated by telephone from another hearing room because of threats against them, allegedly made by the spouse prior to the hearing commencing.
The behaviour of the represented person during the first hearing was suggestive of significant confusion, agitation and distress.

Background

In September 2004, the spouse applied (the original application) to the Guardianship and Administration Board (the Board) to be appointed administrator for the represented person so that he had authority to sign documents to enable him to sell their jointly owned home to facilitate the building of a "granny flat "on a house to be built by one of their daughters, KM.
The State Administrative Tribunal absorbed the jurisdiction and functions of the Board from January 2005. The former Board's files are now in the possession of the Tribunal.
The original application before the Board notes that "our house is the only asset left that [the represented person] is involved with". Later in the same application, "everything we have and own apart from the house is in my name [as] they have been gradually changed over each time we sell them".
Following the hearing in October 2004, the Board made an order authorising the sale of the property pursuant to s 66 of the GA Act. Section 66 was amended late in 2004, but at the time of the order, that section provided:
"(1)Where it appears to the Board that subsection (1)(a) of section 64 applies to a person but that subsection (1)(b) of that section does not apply to him in that there is no need of a continuing appointment of an administrator of his estate, the Board may, without making such an appointment, by order authorise or require a person who could be appointed as administrator under section 68 to perform any specified function.
(2)The provisions of sections 64(2) and (3), 67, 71(4) and (5), and 72 apply with all necessary changes in the circumstances described in subsection (1).
(3)Section 77 applies where an order is made under subsection (1) as if the order contained a declaration by the Board under section 64(1) and the person authorised by subsection (1) were appointed as administrator.
(4)Sections 69(2), (3) and (4), 70, 74, 76, 78(1)(b), 78(2) and 81 apply to a person authorised under subsection (1) as if he were an administrator.
(5)Section 79 applies with all necessary changes to any act lawfully done by a person under subsection (1).
(6)The Board may in an order under subsection (1) declare that section 80 applies to a person appointed under subsection (1), or applies subject to any specified modification."
In the case of the original application, no order was made under s 66(6) by the Board.
As indicated above, the GA Act provides that s 66 orders are subject to other provisions in the legislation as though the person authorised under the s 66 order were an administrator.
Relevant to the current application for administration are the following provisions:
"69(4)Nothing in this Act vests the estate of a represented person in an administrator."
"72(3)Notwithstanding this section or section 71, an administrator shall not without the authority of the State Administrative Tribunal under section 71(5)
(a)make a payment or disposition of a charitable, benevolent or ex gratia nature; or
(b)make a payment in respect of a debt or demand that the represented person is not obliged by law to pay."
The effect of these provisions will be discussed later in these reasons.

The current applications

At the first hearing of the current applications, the evidence of the spouse is that he sold the house property he jointly owned with the represented person, as he was authorised to do, in November 2004. The proceeds of that sale amounted to $318 046.79. On settlement, the funds were allocated by the spouse as follows: $215 000 into a credit society account in the name of the spouse and the daughter, KM, and $103 046.79 into a credit society account in the name of the spouse and the represented person.
The spouse states that some of the funds have been contributed to the building of a house on land owned by his daughter, KM, and her husband, which includes a "granny flat" in which he proposes that he and his wife will live.
The spouse is a selffunded retiree with an after tax income of about $44 000 for the year ending 30 June 2005. The represented person receives a small partpension. The spouse's own health is poor and he advises that he suffers from angina and has had heart surgery and has a pacemaker fitted.
At the time of the first hearing, the represented person and her spouse were living in a shed erected by the spouse on the block purchased by their daughter, KM, where her home and the granny flat were being built. The shed is council approved, but doubt has been raised by the applicant that this arrangement meets the care needs of the represented person.
By the time of the second hearing, the represented person had been admitted as an involuntary patient to a psychiatric ward of a hospital. She had been admitted there from a residential care facility where she had been placed at the request of the spouse in November 2005 in the days following the first hearing.

Legislation

Before a guardian can be appointed under s 43 of the GA Act, the Tribunal must be satisfied that at least one of the matters set out in paragraph (b) of s 43 applies to that person. That provision states that the Tribunal must be satisfied that the person who is the subject of an application is:
(i) incapable of looking after her own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to her person; or
(iii)in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
The Tribunal must also be satisfied that the person is in need of a guardian (s 43(1)(c)).
Before an administrator may be appointed for a person under s 64, the Tribunal must be satisfied the person is unable by reason of mental disability to make reasonable judgments in respect of matters relating to all or any part of her estate; and is in need of an administrator of her estate.
Sections 43 and 64 of the GA Act, for the appointment of a guardian and administrator respectively, are expressly subject to s 4 of the GA Act, which provides:
"4(1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(2)(a)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b) Every person shall be presumed to be capable of
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d)A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."
In determining the appropriate appointment of a guardian, s 44(5) of the GA Act is relevant to this matter in that unless she is appointed to act jointly with another person or persons, the Public Advocate shall not be appointed as a guardian unless there is no other person suitable and willing to act.
Section 44(2) of the GA Act provides guidance to the question of suitability for appointment as guardian including the desirability of preserving existing relationships, the compatibility of the proposed appointee with any appointed administrator, the wishes of the represented person, and whether the proposed appointee will be able to perform the functions vested in him or her.

Evidence

Capacity

In respect of the issue of capacity, there was no conflict among those at the hearings that the represented person is incapable of making decisions in relation to her person or in relation to her estate. The spouse stated that she had suffered from dementia for seven years.
The Tribunal had before it a number of medical and allied health reports including that of the applicant as case manager, which are relevant to the question of capacity.
A report dated 20 September 2004 from Dr JR, the general practitioner who has treated the represented person for three years, provides a diagnosis of "Alzheimer's disease". The report states that the represented person is incapable of making reasonable decisions in relation to her personal health care, her living situation and her financial affairs. Dr KM, general practitioner, in a report dated 27 October 2005, refers to a Mini Mental State Examination score of the represented person of 0/30 and a diagnosis of "Alzheimer's dementia". The report notes that she is incapable of making decisions in relation to her personal health care, living situation and her financial affairs.

A letter from a member of the Aged Care Assessment Team dated 19 July 2005 states:
"I found [the represented person] to be very confused. She is now completely dependent on her husband for all care including showering, dressing, grooming, feeding and toileting. She is also very resistant to any attempts to help her with these and can be both verbally and physically aggressive towards him. The result is that [the spouse] is suffering from severe carer stress and is not coping well with the strain.
I have advised [the spouse] and his daughter that they should be considering permanent placement for [the represented person] due to her high care needs. Their daughter agrees fully but [the spouse] is very ambivalent. He says he cannot place her but then says he does not know how long he can go on."

Need

In her written application, the applicant submits that a guardian is needed because the represented person is: "unable to make decisions in her own best interests due to effect of dementing illness." "Husband [is] refusing services on his wife's behalf." "Client [is] living in environment with significant risks".
Similarly, an administrator is needed for the represented person because, in the words of the applicant, the represented person has a "severe cognitive impairment" and that "provision should be made to ensure current and future finances are available to safeguard her future and maintain her care and wellbeing".
The report of the applicant case manager dated 21 October 2005 provides some detail to the background to her application. The report refers to visits to the "metal shed" in which the represented person and her spouse were living and that the represented person appeared confused and had been found "wandering on the road and had to be brought back by a neighbour. [The spouse] was inside asleep at the time following an angina attack"; the represented person had, according to the applicant, "no recollection of our staff between visits, was incontinent of urine and faeces and there is often a smell of body odour on her person", she is "resistive to care" and has been "observed putting nonfood items in her mouth and chewing them and it is unlikely that she would remove herself from a dangerous situation".
The report notes that the spouse had told the service that he left the represented person locked in the car at the shopping centre while he completed his business. The report goes on to say that the spouse had said there was no money to pay for respite care which was required for the represented person. It refers to the represented person being "wellnourished", but there was a concern about "dehydration in the past because it was said that [the spouse] was limiting fluids to manage her incontinence". The report notes that a day placement arranged for the represented person had ceased.
The report alleges that the spouse had advised the applicant that "firearms had been removed from him because of threats to harm others".
The report concludes "[The spouse] and his daughter have been unable to give us assurances regarding [the represented person]'s care including adequate supervision, backup safety plans in the case of [the spouse] being taken ill, recommencement of attendance at day care to maintain [the represented person]'s socialisation and plans for future respite care".
In support of the application, the applicant referred to contact between PARK Seniors Mental Health Services and the spouse:
"When we first met [the spouse] he seemed extremely stressed. He was tearful throughout the interviews, he was contradicting himself within sentences, didn't seem to be able to make a decision about [the represented person]'s care, and we had concerns that this may happen again in the future if there wasn't adequate respite care. The […] Day Care Centre was started, but it hasn't been continued. [The represented person] receives Silver Chain personal care three times a week. We've offered the Alzheimer's Association to go in, and home respite, but that's been declined.
This has been offered continually throughout our contact, right from the beginning."
In his application, the spouse proposes himself as administrator and guardian and states that a guardian is needed to "handle and administer all decisions including financial problems and everyday problems[.] These have been brought about by the constant attempts of domination by PARK Mental Health Services". He states his application is urgent as he was "being pushed by Park Mental Health".
In response to the written reports and oral evidence of the applicant, the spouse denies that he leaves the represented person in the car for any length of time. He states that he does leave her briefly only to go into the chemist to put prescriptions in to be filled. He states that the represented person is well cared for and denies there are risks associated with where she lives such as fall risks or snakes on the property. He states that he had discontinued the day placement as he could not get the represented person ready in time as the time conflicted with the showering assistance provided by Silver Chain.

In relation to the need for respite care for the represented person, the spouse states that he could not meet the cost of it as the couple's funds were "all tied up" in the property being built on land owned by his daughter and soninlaw. He commented:
"I could not pay for the $200 a week, so I said I would rather stay home - - have her stay home, but because I was at this - - just about to fall off the page, if you like, with a mental breakdown, I was crying and - - well, [AC] down there can verify what I was like." (Transcript page 34)
AC later confirmed this:
"When we first met [the spouse] in July/August he was extremely stressed, crying all the time, not - - clearly not able to cope, and did discuss with us and with Dr W[..] that, you know, he didn't want his wife taken away and if that happened he would do something to both of them they might as well both go together or [the spouse] would go to gaol. Since then, he has said on one occasion more recently that if the hearing doesn't go his way, you know, he's quite likely to take off with [the represented person] in a caravan and no one will see them again." (Transcript page 41)
In response to the allegations that he had made these statements, the spouse agreed that he had made threats but said: "I said it in anger - - ". (Transcript page 66) He described the alleged threats made by him to members of his family as "idle threats". (Transcript page 65) In relation to the other allegation about his wife, he said "I've also been accused here by this lady on the end here [AC] that I threatened my wife with a gun and I would end it with a gun. That is entirely not right". (Transcript page 74)
In the second hearing when the applicant stated her view that the spouse was impulsive in his decisionmaking regarding the represented person, the spouse stated:
"You've got to admit that questions have been asked to me, and I get angry; and this is what I've been trying to say all along. I do make idle threats. I don't mean those idle threats. I just lash out because I think that everybody is against me, and I've got to have my say back. This is why I do change". (Transcript page 15)
At the second hearing the applicant expressed the view that, while the spouse considers that he has the represented person's interests at heart, he had demonstrated "fluidity in his decisionmaking"; that he had shown "impulsiveness" when making decisions about the represented person. (Transcript page 14)
The applicant and AC confirmed that they had discussed their concerns about the care needs of the represented person "several times" with the spouse and with the daughter, KM.
The spouse agreed that at some time in the future the represented person would have to move to residential care. In the first hearing, he stated that he considered that that time had not come.
When responding to the issue of a move to residential care for the represented person in the first hearing, the spouse said: "Do you know how much it costs to go in there? It's $11 300 a year for a pensioner or a partpensioner to go in there. What am I going to live on?" (Transcript page 52)
Later, at the second hearing following the admission of the represented person to respite care in early November 2005 after the first hearing, and her transfer to hospital, the issue of the offer of a permanent bed was raised and the spouse initially denied that an offer of a permanent bed had been made. The applicant stated that a permanent bed had been offered and the respite bed could be converted to a permanent bed for the represented person, if the spouse wished it.
The applicant stated that the spouse had telephoned her regarding the offer of a permanent bed after the first hearing and advised that he did not want to take up an offer of the permanent bed until the outcome of the Tribunal hearing.
The spouse then said:
"But as you can appreciate, 63 days of respite - - you see, once an order is made here today on this second issue we've got, once she has over $30 000 in assets - I've got all the papers here on it (the cost of care) - it jumps from $400 to $633 a fortnight, or $17 000 a year. This is why I accepted the respite. I mean, whatever is going to be told here today that I have to have for her, at $17 000 a year that money is going to be eroded very quickly, and then I have to pay for the rest of my life, which I'm prepared to do." (Transcript page 26)
Because the spouse had not accepted the permanent bed at the facility in November 2005, the applicant advised that the represented person was not guaranteed a bed in that facility following her discharge from hospital but that she would be placed on a waiting list for the next available appropriate accommodation.
The spouse indicated in the second hearing that he considered that his wife could not be cared for at home but also stated in the course of that hearing that if a placement could not be found for her, he would be prepared to take her home.
In relation to the financial arrangements following the sale of their house, the spouse stated in the first hearing that he had contributed $90 000 toward the cost of the granny flat which was part of the building of his daughter's house. (Transcript page 32) However, it appeared from the evidence given in both hearings that there had been other funds transferred to KM through the spouse forgiving a loan and by way of a gift.
The evidence given by the spouse regarding the disbursement of the proceeds of sale of the jointly owned property is inconsistent between the hearings. At the first hearing, the spouse stated that he had repaid personal loans for a car and a boat with approximately $90 000 of the proceeds of sale of the property.
In an effort to clarify the financial issues, the spouse was ordered to provide to the Tribunal before the second hearing, a number of documents including the settlement statement, personal loan agreements, credit union statement and details of the loan said to be owed to KM. In a letter to the Tribunal and in his evidence at the second hearing, he advised that the personal loans had been repaid by him prior to the sale of the property.
In respect of the evidence regarding the repayment of an undocumented loan said to have been owed by the spouse to KM from March 2004, the spouse stated in the first hearing that this had been repaid from the proceeds of the sale of the house; however, this is not consistent with the evidence provided by KM for the second hearing that $35 878 was paid to her on 17 November 2004 and a further $25 000 on 14 April 2005. The settlement statement submitted to the hearing shows settlement of the jointly owned house to have occurred on 1 April 2005.
The bank statements provided by the spouse to the Tribunal for the second hearing show both the $35 878 and $25 000 were withdrawn from the credit society account held in the joint names of the spouse and the represented person. Of the payment made on 17 November 2004, $10 000 was said to be a gift to KM from her parents.
The evidence before the Tribunal shows that $215 000 from the joint funds of spouse and the represented person was deposited in a joint account in his name and that of his daughter KM on 1 April 2005. The spouse indicated that this had been done so that it appeared that KM and her husband had sufficient funds to satisfy the builder of their house that they were able to meet the progress payments and to make a contribution to the identified cost of building the granny flat.
The evidence of the spouse at the hearings was that financial assistance had also been given by him to KM, presumably from funds jointly owned with his wife, to pay the repayments of KM's mortgage and to pay a credit card debt when she was experiencing financial problems when her working hours reduced with a subsequent reduction in income.
The total amount paid by the spouse to KM is not clear on the evidence before the Tribunal. By the time of the second hearing, the spouse advised that there was $49 388 in an account in the name of the represented person which had been opened after the first hearing, $2817 in an account in his name, and $100 106 in the account in the joint names of the spouse and the daughter, KM.
In relation to the granny flat proposal, the spouse provided a document that had been prepared by him for Centrelink. The document is dated 11 November 2004 and is signed by the spouse in his own capacity and on behalf of his wife. KM and her husband have also signed it and the signatures are witnessed. The document recites the intention to build a house and granny flat financed by the sale of the properties of the spouse and the represented person and KM and her husband. The document states: "The new property will be jointly owned in equal shares by all parties concerned".
The evidence of KM at the hearings was that the property was held in the names of KM and her husband. The contribution of the represented person and the spouse to the cost of the house built on the land was not shown in any way. The value of the shed built by the spouse on the land and the improvements required by the Shire to allow the represented person and the spouse to live in it there is also not reflected in any documentation put before the Tribunal.
At the second hearing, the spouse advised that he had legal advice about the Centrelink document and he had been told "that it was not worth the paper it's written on". (Transcript page 67) However, later in the hearing when the issue of the lack of recognition of the represented person's interests in the property was raised, he referred to her interests being protected by the "Centrelink contract".
While acknowledging that there was only a verbal contract regarding the contribution by the spouse and the represented person to the value of the property in the name of KM and her husband, both the spouse and KM opposed the lodging of a caveat on the property to identify the interest of the represented person and that of the spouse.
The spouse stated he opposed this proposal as the property was his daughter's and soninlaw's and that the "block of land is nothing to do with me". (Transcript page 88) The daughter opposed the lodging of a caveat because she stated that within "the next year or two" (transcript page 81), she wanted to borrow against the equity in the property to buy investment properties and that she would be unable to do this if there was a caveat on the title.

Findings

Based on the medical and other professional reports and the evidence of those at the hearings and the observations of the behaviours of the represented person, the Tribunal finds that the represented person is a person for whom both administration and guardianship orders may be made under s 64 and s 43.
In respect of s 43(2), we find that all of the criteria in s 43(1)(b) apply to the represented person on the evidence before us.
In respect of the question of need for the appointment of a guardian and an administrator, we consider on all of the evidence that the need for a formal decisionmaking authority both in relation to the person and the estate of the represented person is established.
In relation to the appointment of a guardian, we consider that a guardian is needed to make decisions for the future accommodation and care needs of the represented person including consent to medical treatment on her behalf and for management of her behaviour for her own safety and for the protection of others.
In respect of this last function, although the represented person is an involuntary patient under the Mental Health Act 1996 (WA), once that status changes, lawful authority for the use of medication for restraint rests with a guardian. It is appropriate and convenient to include this function with the order made.
In relation to the application for an administrator, we find there is a need for an administrator to be appointed. The administrator needs to ascertain and secure the estate of the represented person so that it can be applied to her future needs.
The Tribunal considers, on the evidence before it, that the decisions made informally for the care of the represented person and the management of her estate by the spouse have not operated effectively to ensure her welfare and safety and the protection of her estate. Less restrictive alternatives are not appropriate, and formal orders are required to protect the interests of the represented person.
The Tribunal accepts the proposition put by the applicant that while the spouse considers he has the represented person's best interests at heart, he has demonstrated through decisions made by him that those decisions have not met her needs. The decisions we refer to are the refusal of services and respite care at a time when he could not provide the care needed for the represented person due to his own illhealth and "carer stress", and the financial decisions which have made little provision for her future care and have eroded her legal estate.
In relation to the evidence of the offer of services and the allegations made regarding the comments and threats attributed to the spouse, where the evidence of the applicant and AC conflicts with that of the spouse, we prefer the evidence of the applicant and AC. The Tribunal found them to be wholly credible and careful witnesses and concerned both for the represented person and the spouse.
The Tribunal did not find the spouse to be completely frank in the evidence he gave in relation to the financial information regarding the disbursement of the proceeds of sale of the house, or in relation to his evidence about his decisions about respite care for the represented person.
It is not clear to the Tribunal at the conclusion of the second hearing the extent of the estate of the represented person, but it is clear that a substantial part of the proceeds of sale of a property jointly owned by her with her spouse have been transferred to KM. It is the case that at the date of the second hearing, the $215 000 transferred from the joint funds of the spouse and the represented person to an account in the name of the spouse and KM had been reduced to approximately $100 000. It is also the case that there was no proposal made by the spouse or KM that the balance of the account would be returned to joint funds of the spouse and the represented person. The concession made by the spouse was that he had, after the first hearing, opened an account in the name of the represented person only and had deposited $49 000 into it.
The represented person cannot, on the medical evidence before the Tribunal, have participated in any of the decisions made.
The spouse sold the property under the authority of an order made pursuant to s 66 of the GA Act made by the former Board, but that order did not authorise his distribution of the proceeds of sale in a way which purported to diminish the interest of the represented person in those funds.
The spouse, as a person authorised under s 66 of the GA Act, did not have authority to gift any part of the estate of the represented person or to repay loans which the represented person was not obliged by law to pay.
These will be matters for the administrator to consider.
The refusal of the spouse and the daughter to consider the need to identify and take steps to protect the represented person's interest in the property now registered in the names of KM and her husband suggests to the Tribunal that the interests of the represented person appear not to be given priority by the spouse. He does not support the proposition that a caveat be lodged to secure the represented person's interest because his daughter "had her heart set in" [sic] the investment proposal. (Transcript page 88)
The lack of security for the represented person's funds was raised by JM, the other daughter present at the hearing. She suggested that the interest of the represented person could be secured either by transfer of an interest in the property to the represented person or by caveat. She noted that if KM for any reason experiences future financial difficulties or there are other changes in the relationships, the funds of the represented person which have been contributed to the property may be vulnerable.
Given KM's stated intention to use the property as security to borrow money to purchase investment properties, the financial circumstances of KM are relevant to the need for an administrator to protect the interest of the represented person in that property, and who that administrator should be.
KM advises that she works as a parttime shop assistant and her husband is employed as a groundsman. They have four young children. They owe $200 000 secured by a mortgage on the property, and a further $130 000 is owed to the builder. KM does not know the current value of the property but states that some local properties are on the market at around $450 000.
As it is not clear the total contribution made by the spouse of his and the represented person's funds to the property and KM's proposal to further encumber the property, her assurances that her parents would recover those funds if the property was ever sold are not persuasive.
Further, KM gave evidence to the Tribunal in the first hearing of the difficulties she had experienced prior to the sale of her house when she required financial assistance, at which time the spouse had used his own and funds of the represented person to pay her debts.

Appropriate appointments

Wishes of the represented person

It was not possible to ascertain the wishes of the represented person regarding the appointments to be made. The applicant's report refers to an inability to communicate with the represented person.
The Public Advocate's report confirms the difficulty in gaining information directly from the represented person but refers to her long marriage with her spouse. All the daughters of the represented person confirm the strength of the relationship of the represented person with her spouse.
Section s 4(2)(f) of the GA Act refers to the wishes of the represented person being "gathered from the person's previous actions". It appears to us from what we have heard that if she were able to communicate her wishes, it is likely that the represented person would choose her spouse as her guardian and administrator.

Suitability for appointment

Despite the Tribunal's view that an appointment of her spouse as her administrator would be the wish of the represented person, it cannot make that appointment as the spouse is not suitable in all the circumstances to be appointed administrator.
The finding that he is unsuitable is based on evidence of the history of his decisionmaking regarding the estate of the represented person, his failure to identify and protect her interests, and his stated unwillingness to act in the future to secure those interests.
The Tribunal also finds that the daughter, KM, is unsuitable for appointment because of the potential conflict of interest which arises as a result of the transfer of funds of the represented person to KM and the lack of recognition of the interest of the represented person in the property registered in KM' s name jointly with that of her husband.
With the withdrawal of the offer by JM to be involved in the administration of the represented person's estate because of the history of conflict in the family, the Public Advocate submitted that there was no alternative to the appointment of the Public Trustee as administrator.
The Tribunal accepts that submission and considers that the Public Trustee has the necessary expertise and independence to act in the best interests of the represented person to determine the extent of her estate and take the necessary steps to secure it and to apply it to her needs.
In relation to the appointment of a guardian, the Public Advocate recommends that the spouse be appointed jointly with either KM or with both KM and JM as a "backstop" or a "safeguard" for the represented person.

The Tribunal accepts the submission that there should be a joint appointment with the spouse. The spouse has been the primary carer of the represented person for several years. He expressed his devotion to her and his wish to continue to be involved in her care. However, although he expressed a willingness to be guided by health professionals about future decisions, based on what was known of his decisions in the past, we are not persuaded that, without outside input, the decisions would be made in the best interests of the represented person.
The Public Advocate submits that as family members are willing to be appointed, the appointment of the Public Advocate is not necessary as the decisions to be made regarding placement of the represented person in care are "fairly clear". It was submitted by the Public Advocate that while a range of opinions had been expressed by him, the spouse "most consistently" accepts that the represented person needs permanent care.
Concern is expressed about a potential lack of acceptance by the spouse of a joint appointment with the Public Advocate and that this might have an adverse impact on the represented person. It was further submitted that the Public Advocate would not support a joint appointment as previous joint appointments had been found to be "unworkable".
In the course of the hearing, JM withdrew her proposal for appointment due to the longstanding conflict between herself and the spouse and KM.
Even if she had not withdrawn her proposal for appointment, there must be a real question whether it was an appropriate proposal in light of the "very strained relationship" she described with both KM and the spouse. The Tribunal also had regard to the nineyear gap in contact between JM and the represented person and the allegations made by his daughters, both in the hearing and in written submissions to the Tribunal, about the spouse's past conduct towards them.
The level of conflict in the family was apparent. It should be noted that JM participated in the first hearing from another room because threats had been made to her and to the other sister, SW, by the spouse. We accept, on the evidence of the spouse, that those threats were made. In light of the history of the family relationships, the Tribunal considered a joint appointment of the spouse with JM as proposed by the Public Advocate as inappropriate.
In respect of the appointment of KM jointly with her father as guardian, the applicant did not support this proposal. She commented:
" ... in my dealings with [the spouse] and [KM] in their own home … I personally did not find that [KM] had any decisionmaking abilities and was not able to problemsolve …
I just don't feel that she has the ability to make the decisions that are going to be ahead of her now, particularly if [the represented person] is discharged from hospital in the very near future and is placed anywhere in the metropolitan area." (Transcript page 38)
In response, KM stated that, in the past, she did not feel that she had the authority to intervene in care decisions for the represented person but that if she were appointed guardian that this would give her the necessary authority.
The Tribunal does not accept that it is appropriate to appoint KM as joint guardian.
The uncontested evidence before us is that KM accepted the need for respite care and services for her mother when this was first proposed by PARK staff. She was unable, on her own evidence, to convince the spouse that this was the appropriate course in the best interests of her mother. We consider that her appointment as guardian with formal authority will not change what appears to be an entrenched family dynamic. JM noted that if there was conflict in future decisionmaking, there was a risk too that KM's relationship with her father may be damaged. The GA Act, at s 44(2)(a), directs that the Tribunal take into account the desirability of preserving existing relationships within the family of the represented person as far as possible in determining the suitability of a proposed guardian.
Further, in respect of the submission by the Public Advocate that the decision to be made about the future accommodation for the represented person is without conflict, we do not accept that to be the position.
According to the applicant, the options for accommodation are limited, as the represented person needs secure highcare accommodation which may not be available in areas close to where the spouse will be living. We accept this to be the case.
Given the uncertainty arising from the decision of the spouse not to accept the permanent bed offered to the represented person prior to her admission to hospital and the possibility that she will now go back onto a waiting list for care on her discharge, the location of a permanent placement for the represented person may be a source of considerable difficulty for the family.
Similarly, we do not accept the view taken by the Public Advocate that the spouse consistently accepts the need for placement of the represented person in a highcare facility to meet her needs. The spouse stated, more than once in the second hearing, that if necessary, he would take the represented person home.
We consider the appropriate appointment in all the circumstances to be the appointment of the spouse jointly with the Public Advocate as limited guardians as provided in s 44(5).
In making this appointment, the Tribunal is having regard to the wishes of the represented person, the role played by the spouse as her direct carer for some seven years, and the maintenance of that relationship as well as the need for proper protection of the represented person in decisions made about her future accommodation and care.

Orders

1.The Public Trustee of 565 Hay Street, Perth WA be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road East Perth WA and [Name and Address of spouse deleted] be appointed joint limited guardians of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of the represented person;
(d)To consent to the use of chemical or physical restraint in respect of the represented person and to decide matters incidental thereto.

3.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.
4.This order is to be reviewed by 6 December 2006.

I certify that this and the preceding [119] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER