VS
[2008] WASAT 160
•11 JULY 2008
VS [2008] WASAT 160
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 160 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:139/2008 | 12 MARCH 2008 | |
| Coram: | MR J MANSVELD (MEMBER) MS J STANTON (SENIOR SESSIONAL MEMBER) MS H LESLIE (SENIOR SESSIONAL MEMBER) | 11/07/08 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | A guardian is appointed The application for administration is dismissed The application to revoke an enduring power of attorney is dismissed | ||
| B | |||
| PDF Version |
| Parties: | VS |
Catchwords: | Guardianship and administration Enduring power of attorney Need for a guardian Enduring power of attorney as a less restrictive alternative to the appointment of an administrator Guardian appointed Administration application dismissed Application to revoke an enduring power of attorney dismissed |
Legislation: | Guardianship and Administration Act 1990 (WA), Pt 5 Div 3, Pt 8, s 3, s 4, s 43, s 44, s 64, s 84, s 97, s 108, s 109, s 119 |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : VS [2008] WASAT 160 MEMBER : MR J MANSVELD (MEMBER)
- MS J STANTON (SENIOR SESSIONAL MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)
- Represented person
Catchwords:
Guardianship and administration Enduring power of attorney Need for a guardian Enduring power of attorney as a less restrictive alternative to the appointment of an administrator Guardian appointed Administration application dismissed Application to revoke an enduring power of attorney dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), Pt 5 Div 3, Pt 8, s 3, s 4, s 43, s 44, s 64, s 84, s 97, s 108, s 109, s 119
Result:
A guardian is appointed
(Page 2)
The application for administration is dismissed
The application to revoke an enduring power of attorney is dismissed
Category: B
Representation:
Counsel:
Represented person : N/A
Solicitors:
Represented person : N/A
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 VS is an elderly woman who resides in an aged care hostel. Prior to being admitted to the hostel she lived with her daughter EB in a property owned by them.
2 VS and EB had lived together for all of EB’s life, even after EB married in 1988.
3 In late 2001, VS was diagnosed with a dementing illness. EB and her husband cared for VS in their home until her care needs became too much and she was admitted to the hostel in December 2004.
4 VS had appointed EB her attorney under an enduring power of attorney executed in November 2001. The instrument was witnessed by two medical practitioners.
5 Towards the end of 2007, EB and her husband moved overseas because of her husband’s employment. EB continued to communicate with the hostel on a regular basis and with her mother by way of a webcam on her computer. EB also arranged, under the enduring power of attorney, for her mother’s hostel fees to be paid directly from her pension income and for a real estate agent to manage the property owned by them. The hostel was happy with the financial arrangements.
6 At about the time EB moved overseas another daughter of VS became more involved with her care at the aged care hostel. This daughter, DGS, had not had a close relationship with her mother for many years.
7 The hostel staff communicated a concern to EB about the way DGS was expressing her input into her mother’s care needs and suggested EB lodge an application for guardianship to ensure certainty in the decision-making for VS.
8 EB made an application for guardianship for VS as did DGS. DGS also applied for an administration order for VS and sought the revocation of the enduring power of attorney.
9 DGS submitted that EB had made gifts to the staff at the hostel and that as a consequence the staff showed greater interest in EB than the care of VS. DGS said she did not feel welcome at the hostel. DGS also said that EB
(Page 4)
- was not attending to the religious needs of VS.
10 In respect of the estate of VS, DGS alleged that EB had given away her possessions and was secretive about their mother’s finances. She also submitted that her mother had not been capable of executing the enduring power of attorney in November 2001.
11 EB disputed the allegations made by DGS. EB said that she and VS had a very close relationship as evidenced by them residing together for many years. She and her husband had cared for VS and the decision to admit her mother to an aged care hostel had been the most difficult of her life.
12 EB said she had applied for guardianship because she wanted to ensure that there was certainty in the decision-making for VS. She submitted that the enduring power of attorney was operating appropriately and that there was no reason to have it set aside.
13 The Tribunal preferred the evidence of EB which was supported by the reports from the hostel. DGS provided no credible evidence to satisfy the Tribunal that EB was not acting in her mother’s best interests.
14 The Tribunal was satisfied that VS was in need of a guardian and appointed EB as limited guardian to decide the accommodation of VS and to consent to her treatment and health care.
15 The Tribunal decided to dismiss the application for administration and the application to revoke the enduring power of attorney. The enduring power of attorney was a clear expression of the wishes and intentions of VS and there was no need to interfere in its operation.
Background
16 These reasons relate to a decision of the Tribunal in respect of a number of applications made for VS under the Guardianship and Administration Act 1990 (WA) (GA Act).
17 VS is a 78-year-old woman who resides in an aged care hostel.
18 The first application received by the Tribunal was made by EB, a daughter of VS, for a guardianship order for VS.
19 That application was followed by applications for guardianship and administration orders and for an order revoking an enduring power of attorney executed by VS on 20 November 2001. These applications were made by
(Page 5)
- DGS, another daughter of VS.
20 The hearing for the applications was attended by EB, DGS, CC (daughter), DS (grandson), JC (granddaughter), TB (son-in-law) and representatives of the Public Advocate.
21 Written submissions were received from EB, DGS and the Public Advocate.
Decision of the Tribunal
22 The Tribunal decided to appoint EB as the limited guardian of VS with the functions of deciding where and with whom VS is to reside and to consent to her treatment and health care.
23 The applications for an administration order and an order to revoke the enduring power of attorney were dismissed.
Reasons for the decision
Principles to be observed by the Tribunal in proceedings under the GA Act
24 Section 4 of the GA Act reads as follows:
"(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."
The role of the Public Advocate
25 The GA Act establishes the office of the Public Advocate (see Part 8 of the GA Act).
26 The Public Advocate is a public officer appointed by the Governor and is independent of the Tribunal.
27 Under s 97(1) of the GA Act the Tribunal can refer any matter or question to the Public Advocate in respect of hearings before the Tribunal. The Public Advocate must seek to advance the best interests of the person who is the subject of the proceedings and to present to the Tribunal any information in her possession that is relevant to the hearing.
28 On 25 January 2008, the Tribunal referred the applications for guardianship to the Public Advocate and asked that she investigate and report on whether the represented person was in need of a guardian, and if so, who should be appointed.
29 The Public Advocate was also asked to ascertain the views and wishes of VS in respect of the applications to the extent that was possible.
(Page 7)
30 The Public Advocate provided a written report to the Tribunal on 6 March 2008 and, as mentioned above, attended the hearing.
The applications for guardianship
31 Subject to s 4 of the GA Act (see above), before the Tribunal can appoint a guardian for VS, it must be satisfied that she has attained the age of 18 years; is incapable of looking after her own health and safety; or unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care and control in the interests of her own health and safety or for the protection of others and is in need of a guardian (s 43(1)(a), (b) and (c) of the GA Act).
32 The Tribunal has a report from VS's general practitioner dated 22 January 2008 which states that she suffers from Alzheimer's disease, is profoundly demented and is in need of high care nursing.
33 A report dated 30 January 2008 from a registered nurse at the hostel in which VS resides states that she is confused, unable to follow instructions and unable to converse sensibly, spontaneously or appropriately.
34 The Public Advocate reports that VS was unable to be interviewed because she was unable to comprehend the questions put to her. The Public Advocate was not able to ascertain the views and wishes of VS in respect of the applications made.
35 The Tribunal finds that VS satisfies all of the provisions of s 43(1)(a) and (b) of the GA Act and is a person for whom a guardianship order could be made. This finding is not disputed by the parties.
36 The further question before the Tribunal is whether VS is in need of a guardian and if so who should be appointed to undertake this formal role.
37 EB states that she and VS lived together for all of her life until VS went into full-time care in December 2004.
38 VS and EB purchased a property in 1979 and even after EB's marriage in 1988 they continued to live together.
39 VS was diagnosed with a dementing illness in late 2001. EB states that by early 2002, VS was unable to be left by herself. EB sought the assistance of the Alzheimer's Association because she and her husband were unable to leave the house together due to VS' care needs. Other family members were not available to assist; the daughter CC
(Page 8)
- lived interstate and the daughter DGS had been estranged from VS for many years.
40 EB states that eventually VS required full-time care as she was unable to be supported in her home. The move of VS to an aged care hostel was, EB says, the hardest decision she has had to make.
41 EB states that VS presents with repetitive behaviour, speech problems to the point where coherent communication is very difficult and aggressive episodes. She says that it took a long time to find the right balance of medications for VS and that she is now quite settled in the hostel.
42 EB is currently living overseas as a consequence of her husband's employment. She says she is in contact with the hostel on at least a weekly basis and has arranged to see her mother regularly by way of a webcam on her computer. She states that she has always kept family members informed about the health of VS and any major decisions that have needed to be made, including the diagnosis of dementia and the move into full-time care.
43 EB states that in early January 2008 she was contacted by the care manager at the hostel with concerns over "… the sudden involvement of [DGS] with our mum's care."
44 There is before the Tribunal a copy of an email from the care manager of the hostel to EB dated 10 January 2008. The care manager stated that over "recent weeks" DGS had expressed concern over the need for a vitamised diet for VS, wanted the details of VS's general practitioner, asked who had made the decision to place VS in the hostel and "suggest[ed]" that the hostel was withholding information such as the care plans for VS.
45 The care manager stated that there had been repeated invitations to meet with DGS (a copy of a letter to DGS dated 4 January 2008 is also before the Tribunal), but that she had declined and instead spoke with whomever was on duty which was "… not ideal as they do not always have the time, information or authority."
46 The care manager invited EB to apply for guardianship in the event that DGS were to insist on changes to VS' care and accommodation. It is likely that VS's care needs will increase over time and that she will eventually require nursing home care. EB has placed VS on the waiting list for nursing homes (DGS says that she has only recently
(Page 9)
- made aware of this and would not support the move to a nursing home located where it would be difficult for her to visit VS).
47 EB states she subsequently decided to apply for guardianship for VS to "… formalise what had already been in place for years, and also because I believed my mother was at risk."
48 EB states she attempted to discuss the matter with DGS but it was put to her by DGS that she would discontinue her application for administration if EB did the same with the application for guardianship. EB says she found this unacceptable as the hostel would still require a point of reference for decisions regarding the care of VS.
49 DGS states that as the eldest daughter of VS she has applied for guardianship "… to ensure the best possible quality of life for my mother in her final years of life and also to protect her from the risk of neglect, exploitation and abuse of her human rights."
50 DGS disputes that she has been estranged from her mother but accepts that for a period from the late 1990s to 2004 she did not see VS on a regular basis.
51 DGS says that she was not informed of VS going into permanent care in late 2004.
52 DGS states that EB has not attended to the religious needs of VS (VS is reported to be Catholic and is living in an Anglican facility).
53 EB says that she and her mother attended mass every weekend for all her life until VS was no longer able to understand the service and became disruptive. EB discussed this with her parish priest. A priest attends the hostel every week and VS sometimes attends the Anglican service on Thursday mornings as she enjoys the hymns.
54 DGS says that EB has made and continues to make numerous gifts to members of the care team at the hostel. This according to DGS "… has made effective communication and liaison with the care team extremely difficult to say the very least." DGS claims that the care team display a greater "duty of care" to EB than they do to VS and that this attitude is so pervasive that she, her son, daughter-in-law and two grandchildren are not made to feel welcome at the hostel.
(Page 10)
55 As an example, DGS states that the staff at the hostel were resistant and obstructive to her suggestion in December 2007 that VS receive a higher quality diet. The staff were also reluctant to make changes to VS's room after two serious incidents in January 2008, one of which led to VS being hospitalised for a short time.
56 EB states she made a gift of $50 from her own funds for the purchase of chocolates for staff of the hostel when she left for overseas but otherwise denies she has made or continues to make gifts to staff.
57 DGS submits that EB has "in the past [been] controlling and manipulative and still more recently has caused distress through manipulation and control of other family members".
58 DGS proposes herself as the guardian for VS as she is "on the ground" (whereas EB is overseas) and she has had some 30 years experience in the area of health care. She says that her relationship with the hostel staff has been difficult only because her sole aim is that VS receive the best possible care.
59 DGS is supported in her application for guardianship by JC, granddaughter of VS. JC says that VS has not been given communion as a practising Catholic for three years.
60 CC, daughter of VS, supports EB in her application for guardianship. She states that EB is dedicated to VS and has kept family members informed about care issues. When VS was placed into full-time care, EB would visit each morning to shower and feed her and ensure her needs were met. Such is EB's dedication to VS that CC says she had to convince EB to go overseas to support her husband in his employment.
61 CC submits that DGS did not have an interest in the care of VS prior to EB going overseas and since then DGS has "… taken the opportunity to take control of mum and her bank account which is important to her." CC says that prior to the diagnosis of Alzheimer's disease, DGS did not have a relationship with VS and that it was the wish of VS that DGS not be involved in her care.
62 The care manager of the hostel in her report to the Tribunal states that EB has always been approachable and seems to act quickly and kindly and in the best interests of VS. In the past six months DGS has visited VS which she seems to enjoy. DGS wants to advocate for VS but this is often "disruptive."
(Page 11)
63 In the investigation under s 97 of the GA Act, the Public Advocate spoke to family members. In those discussions DS (grandson) proposed himself as guardian for VS, given the conflict between EB and DGS.
64 The Public Advocate’s written report states that DS lives close to the hostel in which VS resides and that he visits her approximately twice a week. DS lived with VS for a time when he was young and is said to get on well with EB and DGS.
65 The Public Advocate is of the view that the appointment of DS as the guardian of VS would be a “reasonable option as he has a perspective of where both daughters are coming from and he is close to his grandmother.”
66 At the hearing DS did not promote his appointment as the guardian for VS and did not state a view as to whether EB or DGS should be appointed. It is the case that he communicates with both EB and DGS.
The Tribunal’s decision on the applications for guardianship
67 To determine whether VS is in need of a guardian the Tribunal must consider whether her needs can be met by other means less restrictive of her freedom of decision and action than the making of an order (s 4(2)(c), see above).
68 The evidence shows that VS is severely disabled due to the advanced stage of a dementing illness. She is no longer able at any level to exercise her freedom of decision and action. She is unable to express her views and wishes on the decisions that need to be made for her.
69 VS currently resides in an aged care hostel. There is no evidence before the Tribunal to indicate that the hostel is not the appropriate place for VS other than the concerns expressed by DGS for improvements in care and that DGS is not made to feel welcome at the hostel.
70 The Tribunal accepts that the care needs for VS will increase over time due to the progressive nature of her illness. This may mean that VS will eventually need to be placed in a nursing home.
71 DGS has said that she would be opposed to the placement of VS in a nursing home that would make it difficult for her to visit her mother. EB has already placed VS on waitlists for a number of nursing homes.
72 The evidence shows that EB and DGS are in conflict and there is mistrust between them.
(Page 12)
73 It is in the best interests of VS for her accommodation to be stable and for her carers to proceed with her care on the basis of some certainty. This is not to suggest that family members should be prevented from raising concerns about the care that VS is receiving and advocate for improvements. However, in a situation of family conflict, the hostel should have a point of contact to whom staff can refer for a final decision.
74 The certainty of decision-making will also be needed if VS eventually requires nursing home care. The Tribunal is not confident on the evidence before it that the family of VS will be able to agree what is in the best interests of VS when that decision has to be made.
75 The Tribunal therefore finds that VS is in need of a guardian to decide her accommodation both now and in the future.
76 The Tribunal also finds that VS is in need of a guardian to consent to her medical treatment and health care. She is incapable of giving her own consent.
77 Under s 119 of the GA Act, DGS, as the eldest child of VS, may provide consent to treatment as the person first in order of priority in the hierarchy of persons described in that section. However, for the reasons given below, the Tribunal finds that EB is the more suitable person to make treatment and health care decisions for VS and in that case it is not in her best interests for s 119 to be allowed to operate.
78 Apart from decisions about accommodation and medical treatment for VS, no other matters are identified in the evidence for which a formal guardianship order is required.
79 Both EB and DGS have proposed themselves as guardians for VS and are supported by different family members. The Public Advocate initially proposed DS (grandson) but this has not been progressed at the hearing and the Tribunal accepts that DS does not wish to express a particular view on the matter.
80 Section 44 of the GA Act provides guidance to the Tribunal in its determination as to who may be appointed guardian for VS.
81 The Tribunal must be satisfied that the proposed guardian will act in the best interests of VS, not be in a position where her interests conflict or may conflict with VS and is otherwise suitable to act as her guardian.
(Page 13)
82 A relative of VS will not by virtue of that fact be taken to be in a position of a conflict of interest with her.
83 The Tribunal shall take into account as far as possible the desirability of preserving existing relationships within the family, the compatibility of the proposed guardian with VS, the wishes of VS and whether the proposed guardian will be able to perform the functions vested in her.
84 Except where she is appointed to act jointly with another person or persons, the Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
85 The Tribunal finds that EB is the most suitable person to be appointed guardian of VS.
86 The Tribunal accepts the evidence of EB that she and VS have a very close relationship by virtue of them residing together for many years, and because EB (and her husband) became the primary carers when VS became unwell which extended to her placement in an aged care hostel in late 2004.
87 The report of the care manager at the hostel supports the position of EB as primary carer and point of contact for VS, and that despite EB now residing overseas this remains the case and is accepted by the care manager as appropriate and workable.
88 The Tribunal accepts the evidence of CC that the strong interest of DGS in the care of VS in the hostel has occurred since the departure of EB for overseas in late 2007 and that DGS has not had a close relationship with VS from the mid 1990s.
89 The Tribunal is satisfied that EB is the person who has made the major decisions for VS since she became unwell in late 2001 and that this is the product of their very close relationship as further evidenced by VS appointing EB as her attorney under an enduring power of attorney (see below).
90 The fact that there is conflict between EB and DGS does not of itself preclude EB from being the guardian of VS and acting in her best interests.
91 The Tribunal is satisfied that EB meets all of the requirements of s 44 of the GA Act as they relate to her suitability as guardian for VS and that it would have been the wish of VS that she be appointed.
(Page 14)
92 The Tribunal is confident that EB will communicate and discuss her decisions about the care and treatment of VS with other family members and that she will listen and respond to the concerns raised by DGS and others about the care of VS.
93 The Tribunal therefore appoints EB as the limited guardian of VS with the functions of deciding her accommodation and her medical treatment and health care. The appointment is set for review in five years, the maximum period allowed under the GA Act (s 84).
The application for administration and the application for revocation of an enduring power of attorney
94 DGS states that she has made the application for administration “… to prevent further exploitation of [VS's] estate.” She is not aware of the exact nature of the estate and says that EB refuses to discuss it with her.
95 In the application for revocation of the enduring power of attorney executed by VS in favour of EB in 2001, DGS alleges that EB has made gifts from VS’s estate to neighbours, members of the hostel care team and family members (specifically CC). DGS further alleges that EB has disposed of the possessions of VS and other items of “sentimental” value to charity without the knowledge and consent of any family members. EB is said to be secretive about these matters.
96 DGS also alleges that “in the past [EB] has claimed costs for the care of her mother in the form of a ‘Carers Allowance’, despite a substantial income from her husband [TB], and she has appropriated all 'valuables' belonging to [VS]".
97 DGS submits that VS was not capable of executing the enduring power of attorney in 2001 because her dementia had begun to affect her in the mid 1990s and because VS did not communicate that decision to her or anyone else.
98 In her evidence, JC (granddaughter) questions the validity of VS’s signature on the enduring power of attorney.
99 DGS submits that EB is not able to meet the financial needs of VS in a timely way because she is overseas. As an example she says that VS is currently in need of clothes and this has not yet been dealt with by EB.
100 DGS proposes herself as administrator for VS and her submission is supported by JC.
(Page 15)
101 EB states that VS was diagnosed with dementia in late 2001. At this time she was still able to understand and make decisions on her own behalf. The attending doctor at Bentley Hospital suggested that VS consider having someone look after her affairs should she become unable to do so herself in the future. It was then that VS executed the enduring power of attorney.
102 A copy of the enduring power of attorney executed by VS is before the Tribunal. It is dated 20 November 2001 and appoints EB as the attorney of VS. It is witnessed by two medical practitioners.
103 EB states that she was in receipt of the carers allowance when she cared for VS in their home. The payment is not income-tested and was stopped when VS went into full-time care.
104 EB says that she asked her sisters to help in sorting through some of VS’s possessions but both declined. Some old clothes and furniture were given away during the process of moving. The furniture was initially offered to DS (grandson).
105 EB states that no gifts have been made from the estate of VS to the staff at the hostel.
106 EB says that she looked after VS’s valuables before she entered care and continues to do so. VS’s jewellery is in a safe and her other possessions are in storage. No family member has ever expressed concern about this arrangement.
107 EB states that VS has a bank account into which her pension is paid. Her hostel fees are deducted by way of a direct debit from her income. EB relies upon the hostel staff and also DS to let her know what VS needs from time to time. EB says that she recently arranged for DS to purchase shoes for VS with funds she transferred into his account for that purpose. She says that the hostel does not encourage residents to have a large wardrobe because of the concern that clothes go missing.
108 EB states that she and VS still own the property in which they lived. The property is rented to DS and his family and is managed by a real estate agent. The rent is not set at market value. The net rent is shared between her and VS.
109 CC supports EB in continuing to manage the estate of VS.
(Page 16)
The Tribunal’s decision on the application for administration and the application for revocation of the enduring power of attorney
110 Subject to s 4 of the GA Act (see above), before the Tribunal can appoint an administrator it must be satisfied that VS is unable, by reason of a 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 (s 64(1)(a) and s 64(1)(b) of the GA Act).
111 Mental disability is defined to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia (s 3 of the GA Act).
112 In respect of an enduring power of attorney, the Tribunal may revoke the power upon application from a person with a “proper interest” (s 109(1)(c) of the GA Act).
113 In the making of an administration order, the Tribunal may revoke an existing enduring power of attorney and in a situation where the continued operation of an enduring power of attorney is inconsistent with the functions of the administrator, the Tribunal shall revoke the power (s 108(1)(a) and s 108(1a) of the GA Act).
114 For the purposes of her application under s 109(1)(c) of the GA Act, the Tribunal is satisfied that DGS is a person with a “proper interest”.
115 The Tribunal is satisfied that VS suffers from a mental disability as defined in the GA Act. She has Alzheimer’s disease and is profoundly demented (see "The applications for guardianship", above).
116 There is no dispute that VS is unable, by reason of her dementia, to make reasonable judgments about all or any part of her estate.
117 The estate of VS is currently managed by EB under an enduring power of attorney executed by VS on 20 November 2001.
118 DGS submits that VS was not capable of executing the enduring power of attorney and JC questions whether the signature on the document belongs to VS.
119 The Tribunal does not accept the submissions of DGS and JC, and prefers the evidence of EB. The enduring power of attorney, although made at a time when VS was initially diagnosed with a dementing condition, was witnessed by two medical practitioners. This, the Tribunal accepts, is evidence to support the proposition that VS
(Page 17)
- was capable when she signed the instrument.
120 DGS has provided no credible evidence to support her submission that VS was incapable at the relevant time.
121 The Tribunal also prefers the evidence of EB as it refers to the management of the estate of VS since she has lost the ability to do so herself.
122 EB has provided a credible explanation about how she has dealt with the possessions of VS both as to their disposal and storage.
123 There is no evidence that satisfies the Tribunal that VS’s property and finances are not being managed effectively by EB even though she is currently overseas. The care fees of VS are paid by direct debit from her pension, the property is managed by a real estate agent and EB transfers funds when things have to be purchased for VS.
124 The execution of the enduring power of attorney by VS when she was capable of doing so, is a clear statement of her wishes and intentions and should not be interfered with by this Tribunal unless it is not operating in her best interests.
125 For the above reasons, the application to revoke the enduring power of attorney is dismissed as is the application for an administration order.
Orders
Guardianship
126 EB is appointed the limited guardian of VS with the following functions:
• To decide where she is to live whether permanently or temporarily;
• To decide with whom she is to live; and
• Subject to Part 5, Division 3 of the Guardianship and Administration Act, to consent to any treatment or health care of VS.
127 The order is to be reviewed by 12 March 2013.
Administration
128 The application for administration is dismissed.
(Page 18)
Revocation of an enduring power of attorney
129 The application to revoke the enduring power of attorney executed by VS on 20 November 2001 is dismissed.
I certify that this and the preceding [129] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
0
0
1