W
[2018] WASAT 61
•10 JULY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: W [2018] WASAT 61
MEMBER: SENIOR MEMBER D AITKEN
HEARD: 14 FEBRUARY 2018 & 11 APRIL 2018
DELIVERED : 10 JULY 2018
PUBLISHED : 12 JULY 2018
FILE NO/S: GAA 3732 of 2017
GAA 3813 of 2017
GAA 3820 of 2017
BETWEEN: W
Represented Person
Catchwords:
Guardianship and administration - Enduring power of attorney - Enduring power of guardianship - Whether valid - Whether substantially in form of prescribed forms - Prescribed forms require date to be stated in the introductory words - Prescribed form of enduring power of guardianship requires date of birth of appointer to be stated - Capacity - Dementia - Cognitive impairment - Definition of mental disability not exclusive - Best interests - Administration and guardianship orders made - Who may be appointed as administrator and guardian - Enduring powers of attorney and enduring power of guardianship revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43, s 43(1), s 44, s 64, s 64(1), s 68, s 104, s 104(1)(a), s 108(1), s 109(1)(c), s 110E, s 110E(1)(a), s 110K, s 110N , s 110ZD, Sch 3
Guardianship and Administration Regulations 2005 (WA), Sch 1
Result:
Administration and guardianship orders made
Enduring powers of attorney and enduring power of guardianship revoked
Category: B
Representation:
GAA 3732 of 2017
GAA 3813 of 2017
GAA 3820 of 2017
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Re C [2012] WASAT 50
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings are in respect of three applications which have been made to the Tribunal under the Guardianship and Administration Act 1990 (WA) (GA Act). The applications all relate to W and they have been made by her nephew, G.
W is an 84-year-old woman who lives alone in her home and has no children. By her own admission, W has shortterm memory problems. However, W believes that she is capable of making all decisions for herself and there is contention regarding the extent to which W has any cognitive impairment.
At the crux of these applications is the issue of whether W made a valid enduring power of attorney and a valid enduring power of guardianship on or about 9November2017.
If that issue is answered in the negative, then the secondary issues are whether W made a valid enduring power of attorney on 28 July 2017 and whether W is presently a person for whom an administration order and a guardianship order can and should be made.
The first application is matter GAA 3732 of 2017, which is an application under s 109(1)(c) of the GA Act seeking the revocation of an enduring power of attorney apparently made by W on 9 November 2017 appointing S as her sole enduring attorney and C as the substitute attorney (November 2017 EPA).
The second application is matter GAA 3813 of 2017, which is an application under s 110N of the GA Act seeking the revocation of an enduring power of guardianship apparently made by W on 9 November 2017 appointing L as her sole enduring guardian and A as the substitute guardian (November 2017 EPG).
The third application is matter GAA 3820 of 2017, which is an application under s 40 of the GA Act seeking the appointment of G as the administrator and guardian for W, with his sister T as the substitute administrator and guardian.
However, G states in the third application that he does not seek an administration order if the Tribunal upholds the enduring power of attorney made by W on 28 July 2017 appointing him as her sole enduring attorney (July 2017 EPA).
Copies of the July 2017 EPA, the November 2017 EPA and the November 2017 EPG accompanied the applications.
When the applications were lodged the Tribunal made some programming orders for the purpose of receiving some evidence to assist it in dealing with the applications.
The Tribunal sought a medical report from W's general practitioner (GP), Dr P and also requested the Public Advocate to conduct an investigation and provide a report regarding a number of issues.
The first hearing
The hearing of the applications commenced on 14 February 2018.
The persons in attendance were W, her nephew G, her niece T, her friend C, her friend L, her friend A, her friend S and D from the Office of the Public Advocate.
The Tribunal received into evidence the copies of the July 2017 EPA, the November 2017 EPA and the November 2017 EPG, a medical report dated 29 December 2017 from Dr P and a report dated 9 February 2018 from D, who had conducted the investigation on behalf of the Public Advocate.
Dr P's report states that W has a mental disability in the form of dementia which was first recognised in early 2017. It goes on to state that, at the date of the report, W did not have the cognitive capacity to make reasonable decisions in relation to financial matters, legal matters, medical treatment and procedures, accommodation and services, nor to execute an enduring power of attorney or an enduring power of guardianship. Attached to that report are a significant number of progress notes and letters to Dr P from geriatrician Dr W dated 24 July 2017 and 10 October 2017.
W, C, S, L and A did not accept the statements made by Dr P in his report.
W said that she is capable of making all decisions herself and that she has her nephew and niece alongside her to help her whenever she needs them and she is happy with that situation.
C stated that he, L, A and S accepted that W clearly has problems with her memory, but that they were questioning the exact nature of the deficit in W's cognitive capacity and, in particular, they believed that W had the ability to make an informed choice when she signed the November 2017 EPA and the November 2017 EPG.
C also stated that he, L, A and S all challenged G's suitability to be a decisionmaker for W and that she has continually said to them that she does not want G dealing with her affairs because she does not trust him.
The hearing was adjourned to 11 April 2018 to enable further evidence to be given to the Tribunal regarding W's cognitive capacity to make the July 2017 EPA, the November 2017 EPA and the November 2017 EPG and for Dr P and Dr W to attend the hearing to give evidence regarding those issues. Orders were made for that purpose and also to permit C to file a witness statement.
The second hearing
The persons in attendance when the hearing commenced at 10 am on 11 April 2018 were W, G, C, L, A, S and D, who had all been at the 14 February hearing, plus the wife of G and W's friend, H.
W's friend, M joined the hearing at about 12 pm and Dr P and Dr W, both attended by telephone from about 1 pm to 2 pm.
Soon after it began the hearing was adjourned for a short period to allow everyone to be given a copy to read of the 14 page statement which C had filed.
In his statement C states that he has worked in the fields of mental health and addiction for 40 years and that he worked as a neuroscientist researching brain function and behaviour for 25 years. He also states that he is not an expert in geriatric medicine or dementia, but he has spent a good deal of time with W and he has a good understanding of the problems she has been facing.
C's statement raises a number of issues regarding Dr P's medical report and disagrees with Dr P's conclusions in his medical report.
C also says in his statement that he does not argue with the description of W's cognitive problems by Dr W in his letter to Dr P dated 24 July 2017. In that letter Dr W states that W has cognitive impairment consistent with dementia and cognitive dysfunction, likely exacerbated by hyperglycaemia secondary to poor diabetes control, with no reversible cause identified on blood screen and cranial CT.
C expresses a concern about what he describes as the label of dementia and the precise nature of W's cognitive difficulties and cognitive dysfunction and whether they prevent her from making responsible decisions, such as signing the November 2017 EPA and the November 2017 EPG.
C says in his statement that he, A, S and L decided to film W signing the November 2017 EPA and the November 2017 EPG because they wanted people to see that W knew exactly what she was doing and that no coercion was involved and that the films show that W was in a good psychological state when those films were done and that she knew what she was doing and what she wanted.
C then says in his statement that the critical question is why W has shown what he describes as very different personas when she presented to Dr P and when she interacts with C, A, S and L. He attributes that to W being in a dissociative state as a result of past traumas during her two marriages. C describes that dissociative state as W's brain turning off to protect herself from what is going on at a particular time.
C also says in his statement that he, A, S and L have no real disagreement, in general terms, with the statements by Dr W in his reports to Dr P and that they are particularly concerned with the focus during the hearing on 14 February 2018 that more recognisance was made of the views of Dr P as W's GP than of Dr W as a specialist.
C's statement also includes an allegation that W is intimidated by G and that G and T have bullied and coerced W into things.
When the hearing resumed the Tribunal received C's statement into evidence and he was questioned on it by G's wife.
During the course of that questioning, completely unprompted, W asked if she could say something and then stated that G is a lovely man and that she loves him with all her heart and she did not want anyone saying anything against him. W said that G does not bully her, that he is a very honest man and that she would trust him to look after her finances and to make personal decisions for her.
Dr W and Dr P both attended the hearing by telephone concurrently.
Dr W told the Tribunal that he saw W for the first time on 19 July 2017 and that he did not think that she had the capacity to make an enduring power of attorney at that time. Dr W said that the history he was given at that time was that there had been a relatively abrupt onset of W's progressive memory loss with a range of functional problems, including trouble paying her bills. Dr W said that his understanding is that to have the capacity to grant an enduring power of attorney a person needs to be able to manage their own bills and finances and to know the powers and limitations of an enduring power of attorney and, on that basis, he did not think that W had the capacity to do so. Dr W referred to his letter to Dr P dated 24 July 2017, which states that W has cognitive impairment consistent with dementia.
Dr W said that when he saw W again on 10 October 2017 W still had ongoing short-term memory problems and difficulty coping independently and he did not again at that time reassess whether or not W had the capacity to make an enduring power of attorney because it did not seem relevant. His letter dated 10 October 2017 to Dr P states that W has mild dementia probably due to Alzheimer's disease.
Dr W said that he had seen W again on 27 March 2018 and because he was aware of these proceedings he did consider whether or not W had the capacity to make an enduring power of attorney and whether she was still cognitively impaired. Dr W said that W was quite disorientated and she told him that she thought she had made an enduring power of attorney but she was confused about who she had given it to and what the difference is between an enduring power of attorney and an enduring power of guardianship. Dr W said that in his opinion W did not have the capacity to make an enduring power of attorney or an enduring power of guardianship at that time.
Dr W said that he thinks W's memory problems are consistent with dementia. He said that, although sometimes memory problems can be associated with tumours, a scan was done of W which did not show anything and although her calcium level had been a little bit up and, with her diabetes, her blood sugars had been a little out, he did not think her memory problems were caused by that.
Dr W was asked by C whether the main reason he thought W was not capable on 28 July 2017 and 9 November 2017 of making an enduring power of attorney and an enduring power of guardianship was because she did not properly understand the concept of those documents. Dr W answered in the affirmative.
C then asked Dr W whether there had been a situational component to that, because W had been in a clinic rather than in her home. Dr W said that on the first occasion he had seen W in her home and, whilst there can still be a situational component if someone gets stressed, he had looked around in W's home and he had seen her medications not being properly managed and other things he had observed were consistent with the history which had been given to him for W.
Dr W also said that W was not really noticing the trouble with her memory and she did not have insight into the problems that was causing.
Dr W was asked by D to explain how he had had formed his opinion that W has dementia. Dr W explained that dementia is cognitive impairment, not just short-term memory problems, associated with problems with executive function. He said although there are diagnostic criteria, it is a bit subjective because dementia is where a person has progressive memory problems causing social and occupational dysfunction. That has to be not just due to a delirium or some other cause, which is why he had considered things such as W's calcium level and blood sugar level not being quite right.
C then asked Dr W about the cognitive tests he had used. Dr W said he had used a mini mental examination in which W had lost points for orientation and short-term memory and that it would be difficult to be financially competent in those circumstances and that his understanding is that a person has to be financially competent to be able to give an enduring power of attorney. Dr W confirmed that he believed that to be the case in both July 2017 and November 2017.
Dr W, in response to a request from the Tribunal, gave an outline of his professional qualifications and experience. He received a Bachelor of Medicine and Bachelor of Surgery in 1991 and worked as a resident medical officer and then as a registrar for seven years, before becoming an advanced trainee in geriatrics for three years and he has been a geriatrician since 2000. He said that half of his current work is performing dementia assessments. That involves a weekly clinic for people with memory problems, home visits and regular professional education meetings on dementia and cognitive impairment which involve discussion of difficult cases.
Dr P then gave evidence regarding his report dated 29 December 2017, in which he stated that he had seen W about 20 times during the 12 months prior to that.
The Tribunal noted that Dr P had been one of the witnesses to W signing the July 2017 EPA and Dr P said that W seemed to understand it at the time and he thought she was competent to make that decision which is why he was a witness to that.
D referred to the progress notes dated 27 and 30 November 2017 which are attached to Dr P's report, which state that W does not have the capacity to make an enduring power of guardianship and, by inference, an enduring power of attorney. Dr P confirmed that opinion, saying that he spent about an hour with W on 30 November 2017 and he asked her about both guardianship and enduring powers of attorney and her understanding of that was limited.
D also referred to the video recordings which had been made by C when W signed the November 2017 EPA and the November 2017 EPG, which C had given to him and which he watched and commented on his report to the Tribunal. D said that he disagrees with C's conclusion about what those recordings show. In his report D states that from his point of view W seems confused and does not understand the implications of what she is doing, even though she says from time to time during the recordings 'alright' and 'ok'.
The relevant provisions of the GA Act
The provisions of the GA Act which are relevant in determining these applications are as follows.
Section 4 of the GA Act sets out the principles which the Tribunal must observe in dealing with these applications. They are as follows:
•Firstly, the primary concern of the Tribunal is the best interests of W.
•Secondly, W 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.
•Thirdly, a guardianship or administration order is not to be made if W's needs can, in the opinion of the Tribunal, be met by other means less restrictive of her freedom of decision and action.
•Fourthly, if a guardianship order is to be made it should be limited in its scope to meet W's needs and impose the least restrictions possible on her freedom of decision and action.
•Finally, in considering the applications the Tribunal must, as far as possible, seek to ascertain the views and wishes of W.
Under s 43(1) of the GA Act the Tribunal cannot consider appointing a guardian for W unless it is satisfied firstly, that she is incapable of looking after her own health and safety and/or unable to make reasonable judgments in respect of matters relating to her person and/or is in need of oversight care or control in the interests of her own health and safety and secondly, that W is in need of a guardian.
Section 44 of the GA Act sets out the criteria regarding who may be appointed as a guardian.
Under s 64(1) of the GA Act the Tribunal cannot consider appointing an administrator of W's estate unless it is satisfied firstly, 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 and secondly, she is in need of an administrator. Mental disability is defined in s 3 of the GA Act as including a number of conditions, one of which is dementia, but it is not limited to those conditions.
Section 68 of the GA Act sets out the criteria regarding who may be appointed as an administrator.
Section 104 of the GA Act sets out the requirements which must be met for an enduring power of attorney to be validly made.
Section 110E of the GA Act sets out the requirements which must be met for an enduring power of guardianship to be validly made.
Do the November 2017 EPA and the November 2017 EPG satisfy the provisions of s 104 and s 110E of the GA Act?
In his report, D has referred to the fact that the November 2017 EPG does not state at the beginning of the document the date on which it was made nor the date of birth of W.
D then goes on to refer to the Tribunal's decision in ReC [2012] WASAT 50 (Re C) and, in particular to the statement in [43] of that decision, which states as follows:
The substance of an EPG is in its operative provisions. If the operative provisions are in the form, or substantially in the form, of the prescribed form, then the EPG will satisfy the requirements of s 110E(1)(a)
D then states that, in his view, both the date on which an enduring power of guardianship is made is operative, in that it provides a reference point as to when the document was executed, and the date of birth of the person making it is operative in that it more precisely identifies the person making it.
Although D does not state it in his report, it follows that his view would be the same regarding the statement of the date on which an enduring power of attorney is made.
The Tribunal notes in that regard that the November 2017 EPA does not state the date on which it was made.
Section 104(1)(a) of the GA Act requires that an enduring power of attorney be in the form or substantially in the form of Form 1 in Sch 3 to the GA Act.
Section 110E(1)(a) of the GA Act provides that an enduring power of guardianship is not valid unless it is in the form or substantially in the form prescribed by the regulations, which is set out in Sch 1 of the Guardianship and Administration Regulations 2005 (WA).
The introductory words in each of those prescribed forms provide for the date on which the document is made to be stated.
Also, the introductory words of the prescribed form for an enduring power of guardianship provide for the date of birth of the person making it to be stated.
Neither the enduring power of attorney nor the enduring power of guardianship apparently made by W on 9 November 2017 have been dated in the introductory part of them where provision is made for the date on which they are made to be stated.
The witnesses to the signature of W on each of those documents have each stated the date of their witnessing to be 9 November 2017 and the acceptances of those appointments have also been dated 9 November 2017. From that it can be inferred that W signed those documents on 9 November 2017.
However, the fact remains that the November 2017 EPA and the November 2017 EPG do not state in the introductory words of them the date on which they were made.
Also, the November 2017 EPG does not state the date of birth of W.
The Tribunal needs to decide whether, because of those omissions, the November 2017 EPA and the November 2017 EPG do not satisfy the requirements of s 104(1)(a) and s 110E(1)(a) of the GA Act respectively.
Clearly the failure to state those details means that the documents are not in the prescribed form.
The question then is whether they are substantially in the prescribed form.
In the Oxford English Dictionary Online (2018) ( 'substantially' is defined to mean, relevantly, 'in all essential characters or features, in essentials, to all intents and purposes, in the main' and 'essential' is defined to mean, relevantly, 'constituting or forming part of', 'material' and 'important'.
From those definitions the Tribunal draws the conclusion that for an enduring power of attorney or an enduring power of guardianship to be substantially in the prescribed form the document must contain all of the material and important details which constitute or form part of the prescribed form.
In the Tribunal's view the statement of the date on which an enduring power of attorney or an enduring power of guardianship is made, where that is provided for in the introductory words, is an essential feature which is a material and important part of the prescribed form of each of those documents. Also, the statement of the date of birth of the person making an enduring power of guardianship, which is provided for in the introductory words, is also an essential feature which is a material and important part of the prescribed form for that document.
It is easy to understand why provision has been made in those prescribed forms for those details to be inserted.
Being able to identify and refer to the date on which an enduring power of attorney or an enduring power of guardianship has been made is of fundamental importance and hence essential. Whilst there is provision for each of the witnesses to the signature of the person making the document to state the date on which they signed as witness that, of itself, does not identify the date on which the document has been made, which can only be specifically identified by reference to the introductory words of each of the prescribed forms.
Also, the date of birth of the person making an enduring power of guardianship is a material and important means of identifying that person. If a situation arises where an organisation wishes to be satisfied that an enduring guardian has the power to make a decision concerning a client or patient of the organisation the date of birth of the person who made the enduring power of guardianship is an additional piece of information which should enable that identity to be established beyond any doubt.
In [35] of the decision in Re C, the Tribunal referred to a concern that had been expressed about the omission of the date of execution in the introductory words to the enduring power of guardianship under consideration in that proceeding. The Tribunal stated that it became apparent at the hearing of that matter that multiple copies had been executed and the date inserted in at least one of them and that the omission of the date in a copy of the document would not lead to invalidity of an enduring power of attorney which is properly dated. It can be inferred from that reference to 'properly dated' that if the date had not been stated in any of those copies then that enduring power of attorney would not have satisfied the requirements of s 110N of the GA Act.
With regard to the statement in [41] of the decision in Re C, referred to by D, the Tribunal is of the view that the introductory words of the prescribed forms for an enduring power of attorney and an enduring power of guardianship, which provide for the insertion of the date on which the document is made and which, in the case of an enduring power of guardianship, provide for the insertion of the date of birth of the person making the document, are part of the operative provisions of those documents.
The Tribunal has decided that the November 2017 EPA and the November 2017 EPG do not satisfy the requirements of s 104(1)(a) and s 110N(1)(a) of the GA Act respectively and are therefore not valid because neither of those documents is in the form or substantially in the form of the prescribed form due to the omission in the introductory words of them the date on which they were made and, additionally, in the case of the November 2017 EPG the omission of the date of birth of W.
Having decided that both the November 2017 EPA and the November 2017 EPG are not valid the Tribunal has decided that it should revoke them.
Did W have the capacity to make the November 2017 EPA and the November 2017 EPG?
In addition to the decision that the November 2017 EPA and the November 2017 EPG were not validly made by W, the Tribunal has decided that W did not have the capacity to make an enduring power of attorney or an enduring power of guardianship at the time when she signed the November 2017 EPA and the November 2017 EPG.
Dr W is a qualified and experienced geriatrician, who deals with persons who have dementia and memory problems on a daily basis, and the Tribunal accepts his professional opinion that W did not have that capacity, for the reasons which he gave in his evidence.
The Tribunal notes that C says in his statement that he is not an expert in geriatric medicine or dementia and that he also says that he does not argue with Dr W's description of W's cognitive problems, but he is concerned about the label of dementia being placed on W.
The Tribunal accepts that C was well intentioned when he videorecorded W signing the November 2017 EPA and the November 2017 EPG to endeavour to show that she had the capacity to sign those documents.
However, in the Tribunal's view, that was not a useful exercise and the Tribunal has therefore not viewed that video-recording, preferring instead to rely on Dr W's evidence.
Did W have the capacity to make the July 2017 EPA?
The Tribunal does not have the power to declare that an enduring power of attorney is valid, in contrast to the power given to the Tribunal under s 110K of the GA Act to declare that an enduring power of guardianship is valid.
In light of the differing opinions of Dr W and Dr P regarding W's capacity to make an enduring power of attorney on 28 July 2017 the Tribunal has decided that it is in W's best interests for there to be certainty about who is authorised to manage her financial affairs and therefore the July 2017 EPA should be revoked and an administration order made.
Section 108(1) of the GA Act empowers the Tribunal to revoke an enduring power of attorney when it makes an administration order.
In doing this the Tribunal is not making a finding that W did not have the capacity to make the July 2017 EPA, so this will not give rise to any suggestion that decisions and actions taken by G under the July 2017 EPA have not been authorised.
Should an administration order and a guardianship order be made?
The Tribunal accepts Dr W's opinion that W has dementia.
However, even if that 'label' were to be avoided as C wishes, the Tribunal is satisfied that W has cognitive impairment, with problems with her short-term memory and executive function, not caused by delirium or some other reversible cause, which constitutes a 'mental disability' for the purposes of s 64 of the GA Act. Whilst the definition of that term in s 4 of the GA Act includes dementia and several other conditions, it is not an exclusive definition and therefore it would not be necessary to make a finding that W has dementia to find that she has a mental disability for the purposes of the GA Act.
The Tribunal finds on the basis of the evidence of Dr W and Dr P, that by reason of that mental disability W is not able to make reasonable judgments regarding her estate, or in other words her property and finances, nor in respect of matters relating to her person. The Tribunal also finds on the basis of that evidence that W is not capable of managing her health and safety and is in need of oversight, care and control in the interests of her own health and safety.
Who should be appointed as administrator and guardian?
G has proposed himself to be appointed as administrator and guardian, with his sister, T as substitute.
Under s 64 and s 43 of the GA Act it is not possible for the Tribunal to appoint a substitute administrator or a substitute guardian.
The Tribunal has therefore considered whether it should appoint G as the sole administrator and the sole guardian.
Sections 44 and 68 of the GA Act set out the criteria regarding who may be appointed as a guardian and administrator. In both cases the Tribunal needs to be satisfied that the person appointed will act in the best interests of the person in respect of whom the application has been made, that the proposed appointee is suitable to act in that role and will be able to perform the functions to be given to them, their compatibility with and the wishes of the person in respect of whom the application has been made.
The Tribunal finds that G satisfies all of those criteria.
G has been acting in those roles for the past 12 months under the July 2017 EPA regarding W's financial affairs and under the provisions of s 110ZD of the GA Act, which enables the nearest relative to make medical treatment decisions.
Importantly, W stated, without any prompting, during the second hearing that G does not bully her, that he is a very honest man and that she would trust him to look after her finances and make personal decisions for her.
What functions should be given to the guardian?
In his application for a guardianship order G states that he is seeking a guardianship order with authority to make medical treatment and accommodation decisions.
In his report D states that W has many medical issues which require regular review and that services have been implemented until now without a formal order, but it is likely that there will be a need for formal decisionmaking authority to be given to the guardian to make future decisions regarding the provision of services for W.
D also says that whilst W wishes to remain in her home a time might arise when this might not be feasible and therefore authority should be given to the guardian to make accommodation decisions.
Other issues
There has been a considerable amount of evidence and contentions during the second hearing about wills made by W, the gifting of certain artworks, W's connection to two institutions and the apparent rivalry between those institutions in respect of those artworks. The Tribunal has decided that none of that evidence or those contentions is relevant to the decision which the Tribunal has to make in respect of these applications.
It is clear that there is a significant degree of mistrust and suspicion between, on the one hand, G and T and, on the other hand, C, L, A and S. Nevertheless, the Tribunal accepts the view expressed by D in his report that all of these persons have W's best interests at heart. Obviously, they hold different views regarding how those best interests should be served.
Conclusion
For the reasons given above the Tribunal has decided that the presumption of capacity provided in s 4(3) of the GA Act has been displaced in respect of W and that there is no less restrictive alternative to the making of an administration order and a guardianship order for the purposes of s 4(4) of the GA Act.
The Tribunal has also decided under s 4(5) and s 4(6) of the GA Act that W does not need a plenary guardian and that her needs can be met by the appointment of G as her limited guardian with the functions of making decisions regarding medical treatment, accommodation and services for W.
The Tribunal has noted, for the purpose of s 4(7) of the GA Act that W has said that she would trust G to look after her finances and make personal decisions for her.
The decision of the Tribunal in respect of each of the applications is as follows.
In matter GAA 3732 of 2017 the Tribunal has decided to revoke the November 2017 EPA pursuant to s 109(1)(c) of the GA Act.
In matter GAA 3813 of 2017 the Tribunal has decided to revoke the November 2017 EPG pursuant to s 110N(1)(a) of the GA Act.
In matter GAA 3820 of 2017 the Tribunal has decided, firstly to make an administration order appointing G as the plenary administrator of the estate of W with a gifting authority of $400 per annum, secondly to revoke the July 2017 EPA, and thirdly to make a guardianship order appointing G as the limited guardian of W to make decisions regarding her medical treatment, her accommodation and the services to which she should have access, with the administration and guardianship orders to be reviewed in five years' time.
Orders
The orders to give effect to those decisions are as follows.
Matter GAA 3732 of 2017
The enduring power of attorney apparently signed by W on 9 November 2017 appointing S as her attorney and C as her substitute attorney is revoked.
Matter GAA 3813 of 2017
The enduring power of guardianship apparently signed by W on 9 November 2017 appointing L as her enduring guardian and A as her substitute enduring guardian is revoked.
Matter GAA 3820 of 2017
The Tribunal declares that the represented person, W:
(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 incapable of looking after her own health and safety;
(d)is unable to make reasonable judgments in respect of matters relating to her person;
(e)is in need of oversight, care or control in the interests of her own health and safety; and
(f)is in need of a guardian,
and the Tribunal orders that:
1.G is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990.
2.The administrator is authorised to expend up to a total amount of $400 per annum on gifts on behalf of the represented person.
3.The enduring power of attorney dated 28 July 2017 by which W appointed G to be her attorney, is revoked.
4.G is appointed limited guardian 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 Div 3 of Pt 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person; and
(d)To determine the services to which the represented person should have access.
5.The administration and guardianship orders are to be reviewed by 10 July 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
12 JULY 2018
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