VP
[2005] WASAT 42
•31 MARCH 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990, (WA)
CITATION: VP [2005] WASAT 42
MEMBER: MR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)
MS R CARROLL (SENIOR SESSIONAL MEMBER)
HEARD: 18 NOVEMBER 2004
DELIVERED : 31 MARCH 2005
FILE NO/S: GU 235 of 2004
AD 567 of 2004
BETWEEN: VP
Applicant
Catchwords:
Administration - Enduring Power of Attorney - Withdrawal by Attorney
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 64(1)(a),
Result:
The Guardianship and Administration applications are dismissed
Category: B
Representation:
Counsel:
Applicant: Self Represented
Solicitors:
Applicant:
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR E LEIPOLDT (SENIOR SESSIONAL MEMBER), MR J JAMES (SENIOR SESSIONAL MEMBER), MS R CARROLL (SENIOR SESSIONAL MEMBER):
REASONS FOR DECISION
These reasons are provided under the jurisdiction of the newly formed State Administrative Tribunal, into which the former Guardianship and Administration Board was recently absorbed. At the time, the former Guardianship and Administration Board of Western Australia heard this matter.
Four applications were before the Board by two sons of Mrs VP. In chronological order the first applicant is AP with DP the second applicant. Each had applied for administration and guardianship.
Mrs VP is an 85‑year‑old Scottish‑born lady who, with her son AP, resided in a ground-floor unit in a Perth suburb. She made an Enduring Power of Attorney (EPA) on the 21 June 2004 and appointed her son DP as the donee. The EPA did not depend on a declaration of legal capacity for it to come into force. In other words, it continued in force notwithstanding any event of subsequent legal incapacity.
AP had applied for administration for the same reasons as stated in his guardianship application. In it he sought revocation of the EPA for reason of a perceived conflict of interest that his brother DP had in being donee of the EPA. AP sought for the Public Trustee to be appointed administrator and did not propose who should be guardian.
DP stated that he had made his written applications under the misapprehension that AP had proposed himself as administrator and guardian. DP's guardianship application mainly revolved around his mother's alleged inability to clean her home or to stop her eldest son, with whom she resides, to further cause clutter in the home, which he thought dirty and dangerous. He also thought that she "needed assistance with health and medical decisions". Her "condition" needed monitoring in view of a future transfer to "a nursing home" and a guardian could play a role "if her son should bring home a partner against her wishes".
DP's administration application sought for an administrator to manage day‑to‑day financial matters, i.e. receive income, pay bills, manage investments and pursuit of an insurance claim for personal injuries. In his written applications DP sought to be appointed guardian and administrator. At the hearing the Board heard that meanwhile the family had met and decided that they did not want disagreement over who should be looking after VP's financial affairs. The family wanted a revocation of the EPA and the Board to decide who should be administrator.
With regard to administration therefore the issues before this Board were to determine whether VP was capable of making her own decisions about her estate; and if not, whether the existing EPA was a less restrictive alternative to an administration order. If it were not a less restrictive alternative the Board should determine whether an administrator should be appointed and who that should be. There was no application before the Board to intervene in the EPA, as provided under s 109.
The guardianship application by DP revolved around alleged health and safety hazards to VP arising from extreme clutter in her unit. Her son AP, who lives with her, was said to be responsible for collecting this clutter. DP saw the need for a guardian to be appointed to effect a clean‑up of the unit; assist with health and medical decisions; and assist with any future change of accommodation.
In relation to guardianship therefore the issues for determination by the Board were whether VP was capable of making her own decisions about her safety, welfare and accommodation; if not whether there was a need for a guardian and who the guardian should be.
With present at the hearing were VP, the proposed represented person; DP, son and applicant; AP, son and applicant; CP, a third son; Mr G, VP's brother; VT, a niece; and NB, the Public Advocate's representative.
Capacity
Pursuant to s 4(2)(b) of the Guardianship and Administration Act 1990 (WA), the Tribunal is required to presume that VP is a capable person until the contrary is proved to the satisfaction of the Board.
Pursuant to s 64(1)(a) the Tribunal must be satisfied that a Proposed Represented Person is unable, "by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate," before making an administration order.
Pursuant to s 43, before making a guardianship order, the Tribunal must be satisfied that the represented person has attained the age of 18 years; is incapable of looking after his own health and safety; unable to make reasonable judgements in respect of matters relating to his person; or, is in need of oversight, care or control in the interest of his own health and safety or for the protection of others.
Evidence
The Tribunal had received reports from the following sources:
•General medical practitioner Dr S, dated 1 November 2004. In this report Dr S stated that VP was capable of making reasonable decisions with regard to personal health care (medical, dental treatment and consent and self-care). She was incapable of making reasonable decisions with regard to her living situation (includes routine household decisions and accommodation issues). On this point Dr S commented: "unable to clear up the clutter her son collects at her/their house". VP was incapable of making reasonable decisions now in relation to financial affairs. Dr S commented here: "unsure of date including month of year".
•Two letters to Dr S from Dr Ch, dated 3 June 2004 and 28 June 2004. Both recorded "dementia syndrome". The second letter recorded VP's Mini Mental State Examination (MMSE) score at 20/30.
•A letter to Dr S from Dr C and Dr L, dated 1 September 2003. In August 2003 her MMSE was 28/30. No other statements with reference to VP's capacity were made. The letter mainly dealt with information given by DP that VP's home environment was unsafe as a result of clutter created by AP, "decaying food and fly infestation".
•Joondalup health campus social worker TN, dated 12 October 2004. VP had stayed at Joondalup health campus for a fractured humerus, allegedly sustained in a fall. TN made reference to an MMSE score of 20/25 "in May/June of this year" and that "she showed some signs of some short term memory loss". TN had not seen or observed VP since her discharge from hospital on 3 June 2004. X's indicated a possible need for guardianship subject to further investigation. Her concern was that VP needed in-home support and that this was not forthcoming due to "refused services which may be related to her current living arrangements".
•Social worker TN at Joondalup health campus, with an attached ACAT approval, dated 2 June 2004. This report recorded an MMSE score of 20/25 and listed short-term memory loss as one of VP's disorders. The report recommended low level respite and care support in permanent residential care and a community support package.
•The Public Advocate's representative NB's report showed that she had spoken with Dr S, who advised her as follows: Dr Ch's letter of 28 June 2004 mistakenly showed an MMSE score of 20/30. This should read 20/25. With regard to capacity he had said VP's "dementia is mild and she is mentally competent to make her own decisions, even if they could be considered the wrong decisions". With regard to capacity about her living situation, Dr S's view was that VP was likely not capable of clearing the clutter but "she could make the decision about this if she chose to". With regard to her capacity to make decisions about her financial affairs Dr S confirmed that VP, when questioned had been unsure of the date, month, year, but understood sufficiently the extent of her assets to sign an enduring power of attorney". Furthermore Dr S volunteered that in providing his report to the tribunal he should have indicated that VP would have a significant contribution to make rather than a limited one. Dr S's evidence included that VP had been competent to execute an EPA on the 21 June 2004, for which he had been one of the two witness. The other witness was also a medical practitioner. Dr S further indicated in his report that VP remained capable of making an EPA. NB concluded that Dr S's remarks were consistent with her own observations when interviewing VP. She was therefore of the view "that VP is currently competent to make her own decisions and is not a person for whom a guardian or administrator could be appointed".
The attitudes from the applicants as to capacity were as follows. DP believed that his mother was not competent to make her own decisions about her finances. With regard to guardianship he did not believe that "she is fully competent to make all decisions". AP did not believe his mother was capable with regard to her finances. He did not comment on capacity with regard to guardianship.
VP's son CP agreed and thought that his mother was not capable of managing all of her finances. He also thought that she should have a guardian. Mr G believed that in some cases VP could make her own reasonable decisions about her finances, in others not. He also believed that she needed a guardian. VP expressed that she needed assistance with her finances. She was getting it from DP, in VP's words: "in whom I have complete confidence". She said that he was "power of attorney now and I want to remain like that without question …".
Findings
The Tribunal accepts Dr S's assessment of VP's capacity to make her own decisions with regard to her lifestyle. It also accepts the Public Advocate's representative NB's evidence and her further clarification of, and concurrence with, Dr S's opinion. Therefore s 43(1) does not apply to VP. VP is capable of making her own decisions about her health and safety; is able to make reasonable judgements in respect of matters relating to her person; and is not in need of oversight, care or control in the interest of her own health and safety.
With regard to administration, the Board leaves it an open finding as to whether VP currently has capacity to manage her own finances. For reasons that become apparent below, there was no need to make such a finding. The Board believes VP remains capable of making an EPA, based on evidence provided by Dr S on this point, dated 1 November 2004, just 17 days prior to this hearing.
Need
The Board can only make an order if the needs of the person in respect of whom an application is made could not, in the opinion of the Board be met by other means less restrictive of the person's freedom of decision and action.
Evidence
With regard to the guardianship applications, the Board made the finding that VP is capable of making her own decisions about her health and welfare. Therefore the Board does not consider in detail, in these reasons for decision, the stated needs involved in these applications. Whereas it appreciates that some of the difficulties involved in VP's cluttered unit are frustrating to some parties, it is not for the Board to appoint a decision maker where it holds VP to be competent to make her own decisions. Perhaps some could consider VP's decisions or non-decisions to be "wrong" but a competent person is entitled to make them. Relevant to DP's concern about VP's future accommodation, NB, in her report, related how VP had said she liked two residential care places that she had attended. She did not yet believe that the time had come for her to move into such supported care but would consider this when the time came. No evidence was presented of risks to VP's health and wellbeing through living in her cluttered unit. In any case, AP stated at the hearing that he had commenced a clean-up of the clutter over the last three to four weeks.
In reference to the applications for administration, the Board needed to be persuaded to make such an order in the presence of a valid EPA. This is so because the Act under s 4(c) does not allow the Board to make an order in the presence of a less restrictive alternative. Besides, there was no application for the Board to intervene in the EPA.
AP alleged that DP had a significant conflict of interest as DP's wife had been "the recipient of loans" from VP dating back "over a long period of time". As yet these loans were allegedly unpaid. The Board was not presented with any evidence of such loans, and DP and VP denied their existence at the hearing. It had been VP's evidence to NB that loans to her daughter‑in‑law had occurred in the past and had been repaid.
DP purported to rescind his position as donee of the EPA by way of signing a letter to that intent and handing it to the Board during the hearing. This action did not have effect upon the viability of a less restrictive alternative to the making of an administration order, as appeared to be DP's intention. His mother remains capable of making another EPA should this be required, to him or someone else. VP had indicated that she wished DP to continue to act for her as her attorney.
Findings
The Board found VP to be capable of making her own decisions regarding the matters at issue in DP's guardianship application. Therefore it cannot consider making a guardianship order.
The Board found that VP's capacity to make an EPA, as per her wishes, is a less restrictive alternative to the making of an administration order. The Board does not accept that there are any outstanding loans owed by VP's daughter‑in‑law. In any case any such loans were made while VP is a capable person. Therefore this issue is not relevant in considering the applications for administration. The Board has no concerns with the way in which DP has carried out his role as donee and has no concerns about his continuing role, such as it may be. As donee DP, or another donee, can do everything that is needed to be done with regard to VP's estate, including the pursuit of any insurance claims.
Conclusion
With regard to guardianship the Tribunal appreciates the difficulties that some parties perceive with regard to the state of VP's accommodation. However the Tribunal does not find that the presumption of VP's capacity to make her own reasonable decisions about her lifestyle is overturned. Therefore the Tribunal cannot make a guardianship order and the applications in this matter are dismissed.
With regard to administration the Tribunal accepts the evidence that VP made a valid EPA and retains the capacity to make one. She wishes DP to continue in that role as she has derived much benefit from his assistance as donee and trusts him completely. The existing EPA and VP's enduring capacity to execute another are less restrictive means of assistance with the management of VP's finances and as such the Board cannot make an administration order. Whatever the validity of the donee's action in this hearing, where he purported to renounce his status as donee, VP, according to Dr S's evidence, is presently capable of making another EPA. The Tribunal accepts that DP has acted in his role of attorney in an exemplary manner and it has no concerns about the way that he has acted in this role. It sees no reason why he cannot continue to do so. Therefore the applications for administration are dismissed also.
I CERTIFY that this and the preceding eight pages comprise the reasons for decision of the members who heard this matter.
_____________________
Mr E Leipoldt
Presiding Member
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