WS
[2018] WASAT 86
•7 JUNE 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: WS [2018] WASAT 86
MEMBER: SENIOR MEMBER J MANSVELD
HEARD: 7 JUNE 2018
DELIVERED : 7 JUNE 2018
PUBLISHED : 21 AUGUST 2018
FILE NO/S: GAA 1228 of 2018
BETWEEN: WS
Represented Person
Catchwords:
Guardianship and administration - Capacity - Vascular dementia - Enduring power of attorney - Enduring power of guardianship - Revocation of enduring power of attorney and enduring power of guardianship - Guardianship and administration orders made
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43(1), s 44, s 45, s 64(1), s 68, s 69, s 84, s 97(1)(b)(iii), s 108, s 110N, s 110ZD
Result:
Guardianship and administration orders made
Enduring power of attorney and enduring power of guardianship revoked
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
WS is 83 years of age. At the time of the hearing he was living in his own home.
WS has a son PS and a sister TK. He also has a daughter-in-law AS the spouse of a deceased son. AS lives outside of Western Australia.
On 19 March 2018 WS appointed PS as his attorney under an enduring power of attorney (EPA). PS accepted his appointment as attorney on 23 April 2018.
On 3 May 2018 WS appointed PS as his enduring guardian under an enduring power of guardianship (EPG).
On 10 April 2018, AS made applications for the appointment of a guardian for WS and for the appointment of an administrator of his estate.
These applications are made pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act).
The applications for the appointment of a guardian and administrator were referred to the Public Advocate for investigation and report pursuant to s 97(1)(b)(iii) of the GA Act.
On 7 June 2018, the Tribunal accepted an oral application from AS for revocation of the EPG (s 110N of the GA Act).
The hearing for the applications took place on 7 June 2018. In attendance were WS, PS, AS, TK and two friends of WS. EC an investigator/advocate attended for the Public Advocate (investigator). Dr M, WS's general practitioner, attended by telephone. PS was represented by counsel.
Decision
I decided to appoint the Public Advocate as WS's limited guardian to make decisions concerning where and with whom he should live and the services to which he should have access.
I decided to appoint PS as the plenary administrator of WS's estate.
Both orders were set for review in 18 months.
I revoked the EPA and EPG.
I said I would give the reasons for my decision at a later time. What follows are my reasons.
Relevant legislation
The primary concern of the Tribunal is the best interests of WS: 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 WS as expressed, in whatever manner, at the time, or as gathered from his previous actions: s 4(7) of the GA Act.
WS is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his 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 WS unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight care or control in the interests of his 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 WS unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his 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 WS the Tribunal must further determine whether he is in need of guardianship and administration orders. If the needs of WS can be met in a manner less restrictive of his 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 WS 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: s 43(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 WS 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 WS: s 4(5) and s 4(6) of the GA Act.
Under s 108 of the GA Act the Tribunal can revoke an enduring power of attorney.
Under s 110N of the GA Act the Tribunal can revoke an enduring power of guardianship.
The estate of WS
PS describes the estate of WS as follows although the picture is incomplete.
WS owns his property in which he has been living. He has bank funds of approximately $33,000 and life insurance. WS is in receipt of the age pension and each month an amount of $301.06 is credited to his bank account from his life insurance. WS has a standard monthly transfer of $50 to another bank account.
The medical and allied heath evidence
The Tribunal has been provided with reports from:
•a specialist medical practitioner in aged care (consultant) dated 4 May 2018;
•Dr M dated 1 May and 18 May 2018;
•a falls specialist dated 14 May 2018; and
•an agency (support agency)that has been providing WS with support in his home.
Dr M
In the report dated 1 May 2018 Dr M stated that WS had a diagnosis of depression and referred to an assessment by a consultant of which he did not have a copy at that time.
WS was considered by Dr M as incapable in personal and financial areas of decision-making; however Dr M was unsure about whether WS could make an enduring power of attorney and enduring power of guardianship.
In the report dated 18 May 2018 Dr M had the benefit of the consultant's report. Dr M assessed WS as not having a mental disability. Despite this Dr M opined that WS was incapable of making decisions concerning his accommodation, support services and treatment. Dr M did not provide an assessment regarding WS's financial affairs. Dr M also assessed WS as being incapable of making an enduring power of attorney and enduring power of guardianship. He referred to a Mini Mental State Examination undertaken on 17 May 2018 in which WS scored 15/30.
In his oral evidence Dr M states that although not formally diagnosed by a specialist practitioner, his current preliminary view is that WS has a form of dementia likely as a consequence of his cardiovascular problems and which may be described as vascular dementia.
Consultant
The background to this assessment which took place in the presence of PS, AS and TK, included WS having recurrent falls with a history of alcohol misuse and multiple presentations to hospital. The issues that had been previously addressed were those of a cognitive impairment and depression on a background of alcohol excess (chronic alcoholism), cardiovascular risk factors and head trauma.
WS was found to have significant short-term memory problems.
WS did not perceive excessive alcohol intake as a problem.
At the time of the assessment (May 2018) WS continued to live alone in his home supported by the support agency and with PS visiting him daily and often staying overnight.
According to PS, WS had stopped consuming alcohol at the end of 2017. PS reported that he was doing the best that he could to try keep WS comfortable and safe. PS expressed a desire for WS to live at home for as long as he wished.
The consultant assessed WS as having a cognitive impairment on a background of multiple cardiovascular risk factors and excessive alcohol intake. WS also had a history of previous head trauma from numerous falls over the years. The consultant opined that WS seemed to lack the capacity to make judicious decisions in the financial and medical areas of his life. The consultant stated that there appeared to be a conflict within the family regarding the level of care that WS was receiving and the appropriateness of his living arrangements.
Falls specialist
In this report the falls specialist stated that PS had reported that WS had not had a fall since January 2018 and had not consumed alcohol since that time. WS had received physiotherapy through the support agency which was ongoing. WS could walk independently and safely. PS reported that there would be an increase in home support and that he visited WS daily. PS was of the view that another falls assessment was not necessary. WS was therefore discharged from the falls program.
Support agency
The support agency has been providing WS with domestic assistance and personal care each Monday, Tuesday, Thursday, Friday, Saturday and Sunday (for 20 minutes on each visit). PS is considered to be the primary carer of WS.
The report noted that WS lives in his own home which was said to be in need of attention.
WS was considered to be at some risk as he had started to leave the stove turned on. He was said to have little insight into his condition.
Other evidence and submissions
The applicant, AS
AS contends that WS is not safe in his home and has inadequate comforts in that environment. She says that WS is socially isolated; he visits TK daily but this cannot continue because of TK's health issues and her family needs. AS states she has had discussions with PS about her concerns over the past 12 months but he does not want to address the matter. She says she is concerned about the falls WS has sustained and his missed medical appointments. She submits that WS requires alternative accommodation.
AS states that WS is incapable of preparing meals for himself. She says that she did not appreciate the full extent of WS's care needs until earlier this year when she came to see him in April. AS states she had not been aware of the situation with WS because PS had said that everything was fine as did WS. When AS visited WS she found his living conditions very poor.
AS proposes herself as guardian for WS but would not oppose the appointment of the Public Advocate. She says she lives in the Australian Capital Territory but that would not prevent her from making WS's medical treatment decisions. She says she currently travels for her employment but that will not be ongoing. She has no plans to live in Perth but plans to live in Tasmania eventually.
AS states that she has a number of issues regarding WS's estate. She says she no longer trusts PS after having been told by his expartner that he had attempted to change a long-standing will of WS which distributed the estate equally to PS and her late spouse. AS submits that the behaviour of PS was fraudulent.
AS states that she is also concerned about certain withdrawals from WS's bank account. She says that there have been some large withdrawals including one for $2,500.
The sister, TK
TK states that WS visits her home almost daily, sometimes in the afternoon or in the evening depending on what he is doing as he also attends a day centre on a Wednesday and Friday. In addition WS has the support agency attend to his needs.
TK states that PS visits WS in the morning and after work. Her son also assists as does PS's partner who helps with the cleaning of WS's house.
TK states that in addition to WS visiting her, she has daily telephone contact with him.
TK says that she had concerns last year when WS was still misusing alcohol however there is no evidence of WS currently drinking as it appears that he is not able to obtain alcohol on his own.
TK accepts that WS has memory issues.
TK states that she did have some health-related problems as stated by AS but that they are not currently causing her concern.
The friend, TS
TS believes that PS is a good person. According to TS, PS might have made mistakes but then everyone makes mistakes.
TS states that WS would not often listen to advice when he was consuming alcohol.
TS says that she sees WS every two weeks or so at TK's home and at the day centre which WS enjoys immensely.
TS states that she visited WS's home about two or three months ago and in her view WS's home was clean.
The son, PS
PS states that he visits WS daily both in the morning and in the afternoon/evening. He stays with WS three or four nights a week. He makes breakfast for WS and arranges his medications.
PS states that he also visits WS on the days he is not working and every day after work. His nephew assists WS with shopping.
PS states that WS does not currently consume alcohol. He says that he told WS that if he continued to consume alcohol he would finish up in a nursing home (AS on the other hand says that WS has been drinking for 40 or more years and in her view the only reason he is not continuing is because he no longer has the wherewithal to obtain alcohol).
PS says that WS might be alone on average three or four hours a day. At times WS will stay in bed and not get up until lunchtime. WS is able to make himself a hot drink and watches TV. He is able to use the electric kettle.
PS states he was not aware of the concern of the support agency that WS leaves the stove on. He will arrange for a cover to be put on the stove.
PS states that a level 4 care package has been approved by the Aged Care Assessment Team and a referral made to the support agency to use the care package. He has been advised that there is a possible six to 12 months wait for the package.
When asked what would happen with WS whilst waiting for the level 4 package, PS says he will continue with what is currently being provided and, if necessary, increase that support. PS says he is considering whether to rent his property and live with WS.
Concerning WS's finances, PS states that he started to assist early in 2018 about the time that WS stopped consuming alcohol. The usual process for paying WS's bills is for cash to be withdrawn from his bank account and the bills paid at the post office. Receipts are kept.
As regards the concerns held by AS regarding large cash withdrawals PS states that on 18 August 2017 $2,000 was withdrawn but from those funds rates of $870 were paid. On 10 January 2018 there was a withdrawal of $2,500 and that seems to relate to removal of some trees on WS's property.
PS submits that the allegation of AS that he has misused WS's money is misplaced. PS states that he is employed and has his own income. PS notes that WS's bank funds have remained much the same over the period of the bank statements filed with the Tribunal (on 26 July 2017 the balance was $30,251 and on 1 May 2018 the balance was $32,894). WS's bank funds currently stand at approximately $34,000.
PS told the Public Advocate that he has purchased one of WS's motor vehicles and another was transferred into his name about two years ago.
Regarding the will of WS, PS states that late last year he obtained a wills package from the post office with the intention of having WS change his will so that the estate would be wholly bequeathed to him. PS says that he was under the influence of an ex-partner to arrange this but he reflected on the situation, realised it was wrong and destroyed the document.
PS proposes himself as WS's administrator. He supports the appointment of the Public Advocate as guardian to decide WS's future accommodation and care services in the home. PS submits that he should be allowed to continue to make the treatment (medical) decisions for WS which is what he is currently doing.
AS had proposed that she and PS be appointed as WS's joint administrators, however PS does not consent to this appointment.
PS does not oppose the revocation of the EPA and EPG.
Public Advocate
WS was interviewed by the investigator on 30 April 2018. WS stated relevantly:
•He was unaware that his youngest son passed away a few years ago. He believes that his son lives in the eastern states;
•He does not remember how long he has been living in his property;
•He believes that he has a valid driver's license however it expired on 18 January 2018;
•He notes that his sister TK has been assisting him;
•He does not know how much he spends on food or general living expenses;
•He was initially unsure if he was taking medications but later reported that a female person had been assisting him every morning (the support agency);
•He denies having falls in the past;
•He thinks that he would move to a nursing home if TK stopped providing him with support;
•In relation to his finances, he thinks that he has enough money but does not know how much. He does not know the source of his income however he is aware that PS has been managing his money;
•He thinks that he appointed PS as his attorney but is unsure of the content of the EPA or when/why the document was executed; and
•He would like PS to continue to do what he is doing.
The investigator states that in the investigation he has not found evidence to support the allegation of AS that PS has misappropriated WS's funds.
The investigator submits that the Public Advocate should be appointed WS's guardian because of the fundamental differences between PS and AS.
The investigator expresses a concern that there is no clear plan in place to maintain WS in his home and that what is required is an assessment of his care needs and the support available to him from formal sources and from his family.
Discussion of the issues
I am satisfied on the evidence that WS more likely than not has a dementia characterised by cognitive impairment in particular significant short-term memory loss.
The cause of the dementia is likely the effects of WS's chronic alcoholism and vascular factors.
The evidence shows that WS has over a period of time declined in his functioning and requires significant support to maintain himself safely in his home.
I am satisfied that WS is now incapable of looking after his own health and safety and is in need of oversight and care.
The evidence of WS's interview with the Public Advocate investigator shows clearly how compromised he is regarding his ability to care for himself or summon the mental power to make personal and financial decisions.
I find accordingly that WS is unable to make reasonable judgments in certain areas of his personal life.
These findings do not appear to be in dispute.
It is not clear how long WS can be maintained in his home. I agree with the Public Advocate investigator that what is needed is a clear assessment of WS's support needs and how that can match with what is available to him formally and through his family.
WS has been approved for a level 4 care package by the Aged Care Assessment Team. This is the highest level of subsidised support available in the aged care system and is further recognition that WS is close to the need for aged residential care.
AS is of the view that the time has already been reached where WS is in need of nursing home care whilst PS and other family members do not accept this is the case.
The decision concerning where WS is to live will be a difficult one given his wish that he remain living in his home.
There appears to be a tentative consensus that given AS and PS do not effectively communicate, the Public Advocate should be given the role to make the accommodation decision so that all parties will be given the opportunity to have input.
In that regard PS does not oppose the revocation of the EPG.
In my view there are three areas of WS's personal life that require someone with formal decision-making authority. Those areas or domains are his accommodation, the support and care services he requires whilst he lives at home and the consent needed for his ongoing (medical) treatment.
I consider that PS can continue in the role of giving consent to WS's treatment under the person responsible provisions of the GA Act (s 110ZD). PS has a close personal relationship with WS as it is defined in s 110ZD (5) of the GA Act. He maintains frequent contact with WS, is reasonably available and is willing to make treatment decisions when they arise.
This is in contrast to AS who lives outside of Western Australia and although concerned for the wellbeing of WS is not able to maintain the close personal relationship required.
In allowing PS to retain this particular decision-making authority, I acknowledge that families are generally speaking much better placed than the Public Advocate to make intimate medical decisions for their loved ones. They are most obviously more familiar with the person's medical needs and are more readily available.
I have an expectation that should WS require significant medical intervention including the need for hospitalisation, then PS will put aside his differences with AS and communicate with her at those times. This is an obligation he has as a decision-maker for WS.
I consider it to be in WS's current best interests for the Public Advocate to be appointed his limited guardian to make his accommodation decision(s) and to ensure he has the appropriate level of support when he is living at home.
I have decided to appoint the Public Advocate in this role for the reasons already given.
The parties do not appear to be opposed to this appointment.
I will revoke the EPG given that its continuation would be inconsistent with the authority I have given in the guardianship order.
As regards WS's financial affairs, his estate is not currently complicated. He has a property in which he lives, bank funds and life insurance. He has an ongoing entitlement to the age pension. However complications may arise if WS eventually needs to be placed in a nursing home as it then might become necessary for his property to be sold to meet his nursing home costs.
In his interview with the Public Advocate investigator WS appeared to be unaware of his income and expenses. He deferred to PS for the management of his finances.
I am satisfied that as a consequence of WS's dementia, he is now unable to make reasonable judgments about his estate. He needs someone with formal authority to manage his financial affairs.
The medical evidence suggests that there was some doubt concerning WS's capacity to execute the EPA although I accept it has been his wish that PS be the person to look after his finances.
AS has expressed two concerns about PS and his suitability to manage WS's estate. They are her disquiet at the actions of PS regarding WS's will and a concern at certain cash withdrawals from WS's bank account.
I am satisfied that the behaviour of PS in the matter of WS's will was an aberration and his reflections and subsequent actions show that he has been supportive of WS.
As for the cash withdrawals, I accept the assessment of the Public Advocate investigator that there does not appear to have been any misuse of WS's funds.
I have decided to appoint PS as the administrator of WS's estate. By making an administration order, PS will be under the scrutiny of the Public Trustee and will be required to report on an annual basis.
This in my view is the best way in which WS's estate can currently be managed. It is consistent with his wishes that PS be involved.
In making the administration order, the EPA is no longer required. I will therefore revoke the EPA pursuant to s 108 of the GA Act.
I will set a review period for the guardianship and administration orders for 18 months. I expect by that time WS's accommodation will have been permanently settled and the Public Advocate will no longer need to be involved in his life. The Tribunal will also have the benefit of PS having reported to the Public Trustee on the first year of the operation of the administration order.
Orders
The Tribunal declares that the represented person, WS;
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)is in need of an administrator of his estate;
(c)is incapable of looking after his own health and safety;
(d)is unable to make reasonable judgments in respect of matters relating to his person;
(e)is in need of oversight, care or control in the interests of his own health and safety; and
(f)is in need of a guardian,
and the Tribunal orders that:
1.PS of [address] is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The enduring power of attorney dated 19 March 2018 by which WS appointed PS to be his attorney, is revoked.
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 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; and
(c)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.The enduring power of guardianship dated 3 May 2018 by which the represented person appointed PS to be his enduring guardian is revoked.
6.The administration and guardianship orders are to be reviewed by 7 December 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, SENIOR MEMBER
21 AUGUST 2018
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