VN - [2018] WASAT 74 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   VN [2018] WASAT 74
MEMBER:   SENIOR MEMBER J MANSVELD
HEARD:   4 JULY 2018
DELIVERED          :   3 AUGUST 2018
PUBLISHED           :   6 AUGUST 2018
FILE NO/S:   GAA 1602 of 2018
GAA 1538 of 2018

BETWEEN: VN
Represented Person

Catchwords:

Guardianship and administration - Presumption of capacity - Dementia - Cognitive impairment - Reasonable judgments - Oversight in the interests of health and safety - Family conflict - Enduring power of attorney - Enduring power of guardianship - Orders made

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1), s 44, s 45, s 54(5), s 64(1), s 68, s 69, s 80, s 84, s 97(1)(b)(iii), Pt 9C, Pt 9D

Result:

Limited guardianship order and plenary administration order made

Category: B

Representation:

Counsel:

Represented Person

Mr S Blyth

Solicitors:

Represented Person

Lewis Blyth & Hooper

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

VN is an 80 year old woman who lives alone on a property she owns. She is widowed.
VN has four surviving children. They are three daughters DB, DT and DD (collectively referred to as the daughters) and a son, SN.
On 22 September 2014, VN made an enduring power of attorney (EPA) appointing DB and DD as her joint and several attorneys.
On 26 April 2018 VN revoked the EPA.
On 20 October 2014, VN made an enduring power of guardianship (EPG) appointing DB and DD as her joint enduring guardians and DT as substitute guardian.
The daughters have made applications for the appointment of a guardian for VN and an administrator of her estate. They have also made an application for revocation of the EPG.
These applications are made pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
The applications were referred to the Office of The Public Advocate (Public Advocate) for investigation and report (s 97(1)(b)(iii) of the GA Act).
The hearing of the applications was held on 4 July 2018. In attendance were VN, the daughters, SN, MN (granddaughter), counsel for VN and SN and RJ from the Public Advocate.
The decision was reserved.

VN's estate

In their application for the appointment of an administrator the daughters describe VN's estate as comprising her property, a motor vehicle and bank funds as at 29 March 2018 totalling $11,777.91.

Relevant legislation

The primary concern of the Tribunal is the best interests of VN: s 4(2) of the GA Act.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of VN as expressed, in whatever manner, at the time, or as gathered from her previous actions: s 4(7) of the GA Act.
VN is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for VN unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
Under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of VN unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to VN the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of VN can be met in a manner less restrictive of her freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
If the Tribunal decides that VN is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of VN then a plenary order should not be made. If limited guardianship and administration orders are made the orders must place the least restriction necessary on her: s 4(5) and s 4(6) of the GA Act.

Medical and allied health reports relevant to VN's capacity

The Tribunal received the following reports. They are in chronological order:
•reports of Dr O, Geriatrician dated 23 February 2018 and 27 March 2018,
•Aged Care Assessment Team (ACAT Report) dated 6 April 2018;
•report of Dr L, General Practitioner (GP) dated 2 May 2018 which includes Dr O's reports; and
•reports of Dr K, Geriatrician dated 4 May 2018 and 15 June 2018.

Dr O

VN attended Dr O's clinic with DT. Dr O also made a home visit on 27 March 2018. DT reports that VN has been wandering and getting lost, losing and misplacing things. VN is said to be repetitive and unable to recall the names of familiar people. She has had a couple of falls in recent months.
Dr O states that the daughters expressed concerns about VN not looking after herself. She is said not to be compliant with her medications. VN has lost weight because she has not been eating well. She is said to often fall asleep. The daughters are concerned about safety issues in the home. VN has outdated food in her fridge and is not monitoring her diabetes. She is reported to misplace her keys, bank book and the cash that she withdraws from the bank to pay her bills.
Dr O formed the impression that VN has Alzheimer's disease. He states in a letter dated 27 March 2018:
[VN] does not have capacity to make more complex financial decisions e.g. buying insurance, purchase or sale of assets, pursuing entitlements including income and superannuation or advocating for own interests with financial institutions.
Dr O recommended in-home services for VN but ideally she should move to an independent living unit with services in place to support her.

ACAT Report

The ACAT report states that VN has suffered worsening cognition over the past six months. The daughters report that VN has delusional episodes. She tends to get fixated on topics and has word finding difficulty. VN is said to lack insight into her memory difficulties and vulnerabilities. She is considered to be resistive to change. VN often misplaces items around the house and is said to have hoarding tendencies. VN is said to require assistance with most activities of daily living.
VN ambulates independently within her home. She showers once per week. She locks herself and her two dogs in her bedroom at night. Her room is very unhygienic. The daughters consider VN to be at risk in an emergency. She needs assistance with continence management. VN is said to have poor nutritional intake leading to weight loss.

Dr L

At the time of writing his report, Dr L had last attended to VN in late January 2018. He has known VN since 1976. He notes the input of Dr O. Dr L states that VN has dementia. She is said to make irrational decisions (taking out unnecessary insurance policies), losing her cheque book and the money she withdraws from her bank account. Dr L assesses VN as incapable in all areas of financial decision-making. VN is also assessed to be unable to make decisions about her medical treatment on the basis that she is not monitoring her diabetes and has had multiple falls. She is assessed as not being able to make reasonable decisions about her accommodation. It is noted that she has poor personal hygiene. Dr L is unsure whether VN can make reasonable decisions about her support services. He assesses VN as incapable of making an enduring power of attorney but is unsure whether she is capable of making an enduring power of guardianship.

Dr K

In the report of 4 May 2018, Dr K does not note Dr O's assessments. SN was present at the interview. Dr K reports that VN's bank accounts had been frozen and she was unable to access her money and pay her day-to-day expenses. SN had been assisting VN financially during this time. VN was reported to be independent with her activities of daily living. She was said to be able to mobilise independently. There had been no recent falls. VN was reported to be independent with shopping and making simple meals using the microwave. VN was said to have a history of short-term memory loss with this worsening a little since 2016. No major safety issues or behaviours were reported. VN was said by Dr K to be well dressed with clean clothes. A Mini Mental State Examination was conducted in which VN scored 28/30 losing one point on recall and one point on repetition. There was no suggestion of the presence of major depression. Dr K found that VN was able to explain her assets, that she owns property and receives the age pension every fortnight. VN showed Dr K a bank book with savings of around $10,000. VN told Dr K that she feels her daughters are not managing her finances in her best interests and she wanted to revoke the EPA. Dr K assessed VN as having a mild cognitive impairment. She was considered competent to revoke the EPA. Dr K stated:
[VN] is able to manage simple day-to-day finances but will require assistance with major financial decisions and management.
Dr K encouraged SN to make applications to the Tribunal because of the family conflict.
In the report of 15 June 2018, Dr K notes the involvement of the memory clinic (Dr O) but that she does not have any of the documentation. Dr K states that VN is willing to accept extra services if needed. VN is described as a frail 80-year-old woman with mild cognitive impairment and possible emerging dementia. Dr K states that dementia is a progressive neurodegenerative condition. Dr K states:
[VN] is able to manage simple day-to-day finances but will require assistance with major financial decisions and management. She will require assistance in order to be able to operate a bank account, paying rates and taxes in respect of her property or selling the property. She would like to continue living in her own house and willing to accept extra services/support if needed. Regarding medical conditions decisions she would like the doctors (GP or hospital doctors) to make them on her behalf.
Dr K states that VN does not have a will (although, in fact, VN does have a will made in February 2015).
Dr K opines that VN needs an administrator and a guardian who will make decisions in her best interests taking into consideration her wishes.

Written submission from CU, VN's sister

CU did not attend the hearing.
In her written submission CU states that she has noticed over the last 12 months that VN is not the same person she used to be.
She notes that VN's daughters are also concerned.
CU states she was present when the diagnosis of dementia was confirmed during a hospital admission.
CU states that VN can be very stubborn when she wants to be and submits that she must have been very angry when she cancelled the EPA.
CU states that SN does not communicate with VN's daughters.
She proposes the appointment of the Public Trustee as the administrator of VN's estate and the Public Advocate as her guardian.

Evidence and submissions from the hearing

Evidence was given by VN herself, her daughters, SN, MN and RJ.

The evidence and submissions of the daughters can be summarised as follows

They do not say that VN is incapable in all her decision-making but that she does need assistance with some of her decisions.
After the death of their father, they developed a closer relationship with VN 'because we've had to be there for mother, all three of us since the brother wasn't on the scene' (ts 19-20, 4 July 2018).
They want VN to live in her property for as long as she is able to. However, the daughters say VN will never make the decision to leave the property.
VN is considered to be a falls risk.
Because of these things the daughters submit VN needs someone to make decisions about her future accommodation.
Until the revocation of the EPA was received (at the end of April 2018) the daughters were not aware anything was wrong in their relationship with VN. They had been encouraging VN (without success) to have more support brought into her home.
SN was sent a copy of the ACAT Report with the expectation there would be a discussion about VN's needs. However SN chose the legal route. The daughters refused a family meeting because they did not want to be in the same room as SN who they say obsessively wants revenge on them.
The daughters say VN has developed a paranoia against them. VN believes they are bullying her and trying to sell her property, all of which is untrue. VN is refusing their care or professional care. In the past VN had a mistrust of her husband and also SN and his wife.
The daughters say they have not seen VN for the last couple of months (other than Mother's Day) because of the accusations she has made. However, although strained, they do not believe their relationship with VN has broken down to the extent that it can no longer work. DB states:
Because in the frame of mind where mum is right now, we're not the best for her so we've got to accommodate that.
(ts 45, 4 July 2018)
It is the view of the daughters that VN needs someone to assist in the administration of her medications. VN takes her medications once a day rather than the prescribed three times a day. The daughters say Dr L is working towards consolidating VN's medication regime.
VN is said to also require someone to monitor her health and to ensure she attends for regular medical checks regarding her bone density, and kidney and pre-diabetes issues. This was previously attended to by DB upon whom VN is said to have relied heavily.
The daughters say that they had put the level 4 care package on hold because of VN's resistance to care in the home. The plan was to have a care package in place, however there is a wait list for these subsidised services.
The daughters say that VN can manage her day-to-day financial requirements but needs help when it comes to paying for things such as insurances and property repairs. The daughters are concerned at what they perceive to be excessive spending by VN on mail order items. They found receipts scattered throughout her lounge room evidencing spending of $2,000 in a six month period on these items. This has happened since the death of their father in October 2014.
The daughters state that they did not allegedly freeze VN's bank account. DD states that she would either take VN to the bank or withdraw funds to bring to her. The daughters say that VN does not want an ATM card and works through a bank passbook.
The daughters state VN does not have much money in her bank account.
The daughters submit that VN is vulnerable to someone taking financial advantage of her.

The evidence and submissions of the granddaughter, MN

MN states that she is 31 years of age and has a daughter who will be 15 years of age this year. She says that for the majority of her life and all of her daughter's life, VN has given her family lots of gifts of the type she has purchased by mail order. A few Christmas' ago she needed a trailer to transport the volume of gifts.
MN states that VN has always kept a stock of these presents. She says she is not aware of any changes in the purchasing habits of VN.
MN states that she visits VN once a fortnight unless she or one of her children is unwell.

The evidence and submissions of SN

SN states that he remembers as a child that VN used to buy lots of presents through Readers Digest and direct mail from magazines. He says that her purchasing has been a little more regular since the death of his father and observes that it keeps VN occupied. He does not believe these purchases are putting VN's finances at risk.
SN states VN is currently safe in her property. The property has security screen doors. He changed the locks so that VN would not have to deal with lots of keys. VN now has only two keys.
SN does not believe that there are features of the property which present a hazard to VN. He says that VN has been living in the property for nearly 50 years and she knows every square inch of it.
SN states that VN is taken to her doctor whenever she wants and that he takes her currently. His daughter K helps as does MN which includes taking VN shopping.
SN says he asks VN whether she has taken her medications and he accepts her response. VN has always taken her medications at the one time and has not always been compliant.
SN says he does not know whether Dr L contacts VN for particular medical matters.
SN states that he became aware of what was happening with VN when he received an email from DT. He says that he was outside of Western Autralia at the time. He says he replied to DT advising that he would deal with the situation when he got back to Perth. Upon his return to Perth he found VN to be very angry with the daughters accusing them of taking her car keys. SN says he showed VN the ACAT Report which only made her angrier and she said she wanted legal advice.
SN submits that the language used in the ACAT Report such as VN having hoarding behaviours and the property being unhygienic has come from the daughters. He accepts that VN 'collects stuff' and that she has two dogs as companions and they can generate a smell but that otherwise the house is clean.
When asked how the concerns raised by the daughters (health monitoring/administration of medication) was being attended to, SN states that there are currently no formal services in place. He says he has been in contact with the Alzheimer's Association but otherwise is waiting for the outcome of the hearing.
SN was not aware of the approval given by the ACAT Team for a level 4 care package.
SN states he was angry that VN's bank account was frozen (he says it was initiated by the daughters) such that she could not withdraw any funds. He confirms that VN's access to her bank account has been restored.
SN states that VN had a direct debit to pay for the property insurance and other things but these were rejected because of a lack of DB's and DT's signatures.
SN states that memory aids have been put in place for VN including a whiteboard to write down important things and a notebook to carry with her.

The evidence of VN

VN states that she does not remember authorising any of her daughters to stop her from operating her bank account. She is currently able to use the account.
VN states that she sees the bank manager when she wants to withdraw money. She usually withdraws $1,000 and 'that keeps me going for probably a month' (ts 60, 4 July 2018).
When asked what bills she would pay, she mentioned SEC (power) which she pays at the Post Office.

The submissions of VN (through her counsel)

It is submitted that the difference between the assessments of Dr O and Dr K is marginal. The effective position of both Geriatricians is that for day-to-day decisions VN is by and large okay but that she would require assistance for more 'complex or high end' decisions.
VN does not accept the assessment of Dr O that she has Alzheimer's disease. She believes she remains fully capable. However if there is an emerging dementia it has not reached the stage where capacity has been lost.

In the alternative, it is submitted that if the Tribunal finds that VN is incapable, then there is no current need for guardianship and administration orders.
The son and the daughters are agreed that VN should remain living in her property which is what she wants. VN is familiar with the property and its features do not contribute to any falls risk. Falls can happen anywhere for a person of 80 years of age.
VN is physically able to live in the property. She is self-ambulatory and mobile. She does not need walking aids.
It is submitted that there is no evidence to suggest that VN cannot make reasonable medical (treatment) decisions.
As regards VN's estate, the only source of her income is the age pension. It is submitted that the evidence shows VN is able to withdraw cash from the bank and pay some bills.
It is submitted that there is no current need for an administrator given the consensus that VN remain in her property which means she only has to manage her pension. There is no suggestion that VN's property needs to be sold.
If it is found by the Tribunal that VN is in need of an administrator then it should be limited in scope given her ability to deal with her pension. In those circumstances SN should be appointed as administrator because that is the wish of VN and he currently has a good relationship with her. VN no longer wants her daughters to be in a decision-making role.
More generally SN and his family are keeping an eye on VN and assisting her with memory aids for example.
The daughters' application to have the EPG revoked is supported, however it is hoped that VN and her daughters will eventually reengage.

The evidence and submissions of RJ.

In addition to her written report, RJ from the Public Advocate gave oral evidence and submissions.
In respect to her visit to VN's property in June 2018, RJ states that VN confirmed her wish not to have her daughters involved in her decisions.
VN seems quite aware of the safety concerns of her living alone and is able to articulate some of what she does to mitigate that risk. It appears that VN wears a care pendant alarm for example.
RJ states that VN is receiving weekly house cleaning from a community agency. On her visit to VN's property, the house appeared clean and tidy.
VN has her medications delivered in a Webster pack which she then puts into a Dosette box. RJ says that at the time of the home visit there seemed to be some difference between the medications in the Webster pack and the Dosette and some medication missing. RJ notes VN's habit of taking her medications once a day.
VN told RJ that in respect of her personal hygiene, she has a daily 'wash down' and shower over the weekend.
VN did not recognise the EPA and EPG when the documents were shown to her. She said that she wants her son to continue to assist her as he has been doing so for the past few months.
As regards to the need for orders, RJ submits that VN is in need of a guardian to arrange for in-home services including medication prompts. She submits there is no current need for a guardian to make decisions about VN's accommodation and the person responsible provisions of the GA Act can apply to medical decision-making.
RJ states that during the home visit she found VN vague and somewhat confused about what happened with her bank account and submits VN would benefit with having some oversight. RJ states she has discussed this with SN who is willing to be appointed as administrator. The only concern is whether there will be a flow of information between family members if SN is appointed. RJ says that SN told her he would be willing to share information.
RJ notes the letter obtained by the Public Advocate from an advocacy agency which documents incidents in July 2014 and January 2015 when VN raised concerns about SN.

Discussion of the issues

I have decided to appoint the Public Advocate as VN's limited guardian to determine the services to which she should have access and in doing so I will revoke the EPG.
I have further decided to appoint SN as the plenary administrator of VN's estate.
The reasons for my decision are as follows.
Guardianship and administration orders can only be made when a finding of incapacity is made and there is no other safe and effective means by which particular decisions that need to be made for the person can be made.
This is expressed in the GA Act through the presumption of capacity in s 4(2)(2) and the requirement that the Tribunal consider whether there are less restrictive alternatives to the making of orders (s 4(2)(c)).
With this in mind I will first turn to the application for guardianship.
Before the appointment of a guardian can be considered the Tribunal must first find that VN is incapable of looking after her own health and safety, is unable to make reasonable judgments on personal matters or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
The principal medical reports before the Tribunal that speak to the question of VN's capacity are those of the GP, Dr L, the Geriatrician, Dr O and the Geriatrician, Dr K.
It is unfortunate but not uncommon in the guardianship jurisdiction that an opinion on capacity is formed by a medical practitioner without the direct benefit of discussing that opinion with other practitioners who are or have been involved with the person the subject of the applications.
In this case Dr L was able rely upon the written assessments of Dr O. Dr K who made the most recent assessment was aware of the involvement of the relevant ACAT Team and Dr O but did not have any of that team's documentation.
In addition, both Dr O and Dr K have needed to rely on a contextual history provided by family members. In the case of Dr O that was from VN's daughters and in the case of Dr K the history was provided by SN. I suspect that as a matter of course the giving of that history can be somewhat clouded by the giver's own views particularly in a situation where there is conflict and mistrust (in this case between the daughters and SN).
The same can be said about the report of the ACAT Team.
The situation is therefore complicated because the daughters have a less sanguine view than SN about VN's ability to live safely in her property, notwithstanding that the daughters and SN want her to be able to live in the property for as long as possible and see no current need for VN to be accommodated elsewhere.
I am satisfied that on the medical evidence it is more likely than not that VN has dementia, Dr O having formed that impression in February 2018 and Dr K describing it as a possible emerging dementia in June 2018.
As Dr K states, dementia is a progressive neurodegenerative condition.
The question for the Tribunal is to what extent the dementia impacts on VN's current functioning and decision-making.
The three critical areas of VN's personal life that been raised in the guardianship application are her future accommodation; her current need for in-home services and her ongoing medical and health care requirements.
I am satisfied on the evidence that in respect to those three decisionmaking domains that VN is unable to make reasonable judgments and is in need of oversight in the interests of her health and safety.
Despite the submissions made by her counsel, VN believes that she is fully capable and able to make all of her decisions. There is some contrast to this view when for example VN is reported to have said to Dr K that she would like her doctors to make her medical decisions on her behalf.
I accept the evidence that VN would not countenance ever leaving her property. Unfortunately I find that VN does not have sufficient insight into the need for in-home services and the monitoring of her health and safety to ensure her wish to remain at home can be sustained.
VN has been approved for a level 4 care package by the relevant ACAT Team. This is a recognition that VN may need (depending on her particular circumstances at the time) the highest level subsidised care package available in the aged care system.
I accept that VN is in general resistant to services in the home despite what she said to Dr K. Whilst at one level this may be an understandable position taken by a fiercely independent person, in my view it is an unreasonable judgment in the context of her wish to remain at home.
The in-home services to which I refer include (but would not be limited to), medication prompts, domestic assistance, welfare checks and assistance with appointments.
I accept that currently SN and his family provide some monitoring and assistance with appointments but given the diagnosis given to VN, the services I have mentioned will likely need to be provided on a daily basis in the near future.
There is therefore a need for someone with formal authority to determine the services to which VN should have access.
I have decided to appoint the Public Advocate in this role for the following reasons.
Until fairly recently VN's daughters played an important role in assisting her in her daily life. They developed a good understanding of her needs. VN had appointed DB and DD as her joint enduring guardians. That relationship broke down I suspect when VN perceived some of the actions of the daughters as interfering with her independence.
VN currently seeks assistance and counsel from SN but that has not always been the case as noted by RJ in referring to the letter of the advocacy agency.
As already mentioned, the provision of services will be critical to the longevity of VN remaining in her home. That being the case the free flow of information from her children (who know her best) is essential.
This cannot happen currently because of the strained relationship between VN's daughters and SN.
In addition there is a real risk that VN will continue to resist services as an attack on her independence. This in my view would jeopardise the relationship SN has with VN if he were given that decision-making authority.
In respect to VN's accommodation, I accept the submissions that a decision is not currently needed and given the consensus that VN should be given the opportunity to stay in her home, a formal decisionmaker for that matter is not needed at this time.
This may change in the future depending on VN's ongoing needs and the state of the relationship between she and her daughters and the daughters and SN.
In respect to VN's health and medical needs, Dr L addresses this directly in his assessment of her capacity to make reasonable judgments in this area. Dr L is VN's longstanding GP and I place significant weight on his opinion. The other evidence also points to VN having an impaired understanding regarding her medication regime and the treatment of her diabetes.
Despite this, I am satisfied that VN's medical needs can be dealt with under the person responsible provisions of the GA Act (Pt 9C and Pt 9D). Currently that would mean the SN can give consent to VN's treatment if she is unable to do so depending no doubt on the complexity of the proposed treatment.
Despite the difference between VN's daughters and SN, I am of the view that should VN require serious medical intervention (for example she is hospitalised), then in those circumstances the daughters and SN will of necessity collectively deal with the situation.
I am generally reluctant to appoint the Public Advocate for this intimate form of decision-making and have an expectation that at times of medical crises, families tend to put their differences aside.
In making the limited guardianship order I will revoke the EPG. The daughters have applied for its revocation and this is supported by VN and SN. In any case given the current relationship between VN and her daughters, in a practical sense the EPG cannot be effectively used.
I will now turn to the application for the making of an administration order.
Before the appointment of an administrator can be considered, the Tribunal must first find that by reason of a mental disability, VN is unable to make reasonable judgments about all or any part of her estate.
I am satisfied that VN has a mental disability by virtue of her dementia.
The submission of VN (and SN) is that VN can manage her pension on a day-to-day basis and given there is no current need to sell her property, more complex financial decision making is not yet required. On this reasoning an administration order is not necessary.
I do not accept that submission.
In the case of VN's capacity to make financial decisions, the assessments of Dr O and Dr K are largely congruent.
Dr O puts it this way in his report of 27 March 2018. In his view VN:
…does not have capacity to make more complex financial decisions e.g. buying insurance, purchase or sale of assets, pursuing entitlements including income and superannuation or advocating for her own interests with financial institutions.
In the report of 15 June 2018, Dr K puts it this way. VN,
…is able to manage simple day-to-day finances but will require assistance with major financial decisions and management including assistance in order to be able to operate a bank account, paying rates and taxes in respect of a property or selling the property.
I am satisfied these assessments show that beyond managing daily amounts of money for simple purchases, VN does not have capacity to deal with the broader aspects of her estate which includes operating her bank account, the payment of substantial bills and negotiating her income entitlements with Centrelink.
There is sufficient risk to VN's estate in my view to warrant having a formal manager and decision-maker in place. Because VN revoked the EPA (for which she was found capable by Dr K), this can only be by way of the appointment of an administrator.
The administration order should be plenary in nature so that an overall security is achieved. Within such an order however, the administrator would still be able to give VN as much independence on daily financial matters as would be considered appropriate. In practical terms this may mean there does not have to be any substantial change to VN managing her daily money.
I have decided to appoint SN in the role of VN's administrator. This is consistent with VN's current wishes. SN has consented to his appointment.
Appointing the Public Trustee would in my view largely negate the flexibility that SN can bring to the appointment.
I do not consider the need for a flow of information to and from the daughters regarding her estate is currently as important as I found to be the case in respect of the provision of support services.
SN will be required to file annual financial statements with the Public Trustee pursuant to s 80 of the GA Act and this provides a level of protection in situations where there is some mistrust in the family.
I will authorise SN as administrator to expend up to $1,000 per annum on gifts on behalf of VN. This will allow VN (within limits) to continue to purchase gifts for her family, particularly her grandchildren.
I will set a review of the orders in 18 months. I expect by then her living situation will have become clearer in the context of the progression of her dementia.
The term of the orders will also allow time for SN to file the first set of financial statements with the Public Trustee and for the Tribunal to have the report of the Public Trustee available at the review hearing.
As already mentioned the guardianship order may need to be reviewed earlier if VN's circumstances deteriorate, and the need for aged residential care becomes apparent.

Orders

The Tribunal declares that the represented person, VN:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)is in need of an administrator of her estate,
(c)is unable to make reasonable judgments in respect of matters relating to her person;
(d)is in need of oversight, care or control in the interests of her own health and safety; and
(e)is in need of a guardian,

and the Tribunal orders that:
1.SN of [address], Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.
3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be appointed limited guardian of the represented person with the following function:
(a)To determine the services to which the represented person should have access.

4.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.
5.In relation to the enduring power of guardianship dated 20 October 2014 made by VN ('the appointor') appointing DB and DD, the Tribunal declares and orders:
(a)The enduring power of guardianship is revoked.

6.The administration and guardianship orders are to be reviewed by 3 February 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, SENIOR MEMBER
6 AUGUST 2018