YA
[2024] WASAT 118
•28 OCTOBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: YA [2024] WASAT 118
MEMBER: MS R BUNNEY, MEMBER
HEARD: 25 SEPTEMBER 2024
DELIVERED : 25 SEPTEMBER 2024
PUBLISHED : 28 OCTOBER 2024
FILE NO/S: GAA 3669 of 2024
GAA 3670 of 2024
YA
Represented Person
LB
Applicant
Catchwords:
Guardianship - Administration - Presumption of capacity - Family conflict - Gifting of real property - Declaration of gift to Centrelink - Related party transaction - Relationship of influence - Revocation of enduring power of attorney and enduring power of guardianship - Appointment of Public Trustee as administrator - Appointment of Public Advocate as guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 43(1), s 51(2)(g), s 64(1), s 110ZD
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)
Result:
Enduring power of attorney revoked
Public Trustee appointed as administrator
Enduring power of guardianship revoked
Public Advocate appointed as guardian
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw [1938] HCA 34 (1938) 60 CLR 336
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
FY [2019] WASAT 118
GC and PC [2014] WASAT 10
LP [2020] WASAT 25
XYZ (Guardianship) [2007] VCAT 1196
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
YA is an 89 year old woman who immigrated to Australia when she was 63. She is illiterate in her first language, Language A, and does not speak, read, or write in English. YA has two daughters, RI and LB. RI arranged and paid for the whole family to come to Australia around 25 years ago including YA, LB and LB's three children, D1, D2 and S1.
In 2000, shortly after arriving in Australia, YA married HU. HU purchased Property 1 in 2003, which is where they lived together. HU owned another property, Property 2, which he transferred into YA's name in 2003. LB has lived in Property 2 ever since. When HU died in 2006, YA inherited Property 1 and continued to live there until 2020.
In 2017, YA gifted Property 1 to RI. No interpreter was used when the documents were signed, and the witness to YA's and RI's signatures was RI's husband, EL. EL filed the documents with Landgate, meaning that no one independent was involved in the transfer.
In 2019, YA signed an enduring power of attorney appointing RI as her sole enduring attorney (EPA) and an enduring power of guardianship appointing RI as her sole enduring guardian (EPG). In 2020, YA was becoming frail and needed more assistance at home, so RI moved her to an apartment RI owned that was very close to RI's home.
In early 2024, RI decided that YA should move into residential aged care. This meant that Property 2, as YA's sole asset, may need to be sold to pay for aged care. LB decided that YA should live at Property 2 with her because YA does not want to live in aged care. RI says that LB does not want her home of 20 years to be sold. The tensions in the family escalated, resulting in this application to the Tribunal. YA has lived at Property 2 with LB since May 2024.
The matter was referred to the Office of the Public Advocate (Public Advocate) for investigation. At the hearing of 25 September, I made orders to appoint the Public Trustee as YA's administrator and the Public Advocate as YA's guardian. These are my reasons for doing so.
Three issues the Tribunal must determine
The primary concern of the Tribunal is YA's best interests. The starting point for the Tribunal, when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is that every adult is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments in respect of matters relating to their estate and their person. This is referred to as the 'presumption of capacity'.
The Tribunal may inform itself on any matter as it sees fit,[1] and is not bound by rules of evidence,[2] which ensures, as far as possible, that all relevant information can be considered by the Tribunal in order to make the correct decision in the best interests of the person concerned. I have considered all the evidence filed in these proceedings and need not set it out in detail. The relevant features are summarised later in these reasons.
[1] SAT Act, 32(4).
[2] SAT Act, 32(2).
If the presumption of capacity has been set aside by clear and cogent evidence, then the Tribunal can consider making guardianship and administration orders. When deciding whether to appoint a guardian or an administrator, the Tribunal must address three stages of enquiry:
(a)First, does the person lack capacity, in accordance with specific legal tests of incapacity,[3] to make their own decisions about their personal and financial matters?
(b)Second, if they lack capacity, is there a need for the Tribunal to make an order to appoint a guardian or an administrator, or is there another way for decisions to be made in the person's best interests that is less restrictive on their freedom of decision and action?
(c)Third, if there is a need for an order, the Tribunal must decide who the guardian or administrator will be, the functions or powers they require and how long the orders will run before they are reviewed.
[3] GA Act s 64(1) sets out the test for incapacity for financial decisions and s 43(1) of the GA Act sets out the test for incapacity for personal decisions.
YA's views and wishes
The Tribunal must take YA's views and wishes into account, although the Tribunal may make a decision in YA's best interests that may not be exactly what she wants. YA was assisted at the Tribunal by an interpreter and I am satisfied that YA was able to understand my questions. However, she was consistently tangential and disorganised in her responses. YA's answers to many questions were repetitive and fixated on her desire to avoid moving into aged care.
I asked if YA remembered signing the EPA and EPG in 2019. She told me that she signed 'a paper' because RI told her to, but she did not know what it was. When the investigator from the Public Advocate (Investigator) interviewed YA, she did not appear to understand what an enduring power of attorney was. YA told the Investigator that she would never sign a document that gave RI full control over her money, and was surprised when the Investigator showed her the EPA.
I asked YA if she wanted me to revoke the EPA and EPG, and she told me that she thinks there is something wrong with RI because RI wants to put her into aged care. YA told me that she does not want to move into a nursing home and that she is lucky that LB stepped in to help.
When I asked YA who she wanted to make important decisions for her, she did not answer me but said she wanted RI to give her back the paperwork and 'return the gold'. YA told the Investigator that she wanted RI to give back Property 1, some gold and a precious ring. YA told the Investigator she wanted LB to make decisions for her.
The presumption of capacity
The presumption of capacity is a fundamental principle in the GA Act and can only be displaced by clear and cogent evidence of incapacity leading the Tribunal to be actually persuaded that YA is a person for whom a guardianship and an administration order can be made.[4] To put this another way, everyone has capacity until proven otherwise.
[4] Briginshaw v Briginshaw [1938] HCA 34 (1938) 60 CLR 336; LP [2020] WASAT 25 at [48]. GC and PC [2014] WASAT 10 at [36].
Considering the seriousness of the consequences that flow from a finding of incapacity, or from the Tribunal failing to identify an incapable person in need of protection, the Tribunal must make findings of fact about capacity by reference to evidence from a wide variety of sources, including the evidence of medical and allied health professionals and also to lay evidence.[5] The assessment of a person's capacity should also include a consideration of the outcomes of the person's choices and actions in the real world.[6]
[5] XYZ (Guardianship) [2007] VCAT 1196 (XYZ) at [65].
[6] XYZ at [66].
A person's ability to think and problem-solve, or their 'neurocognitive functioning', involves processes like attention, information processing, comprehension, working memory, planning, learning, memory, and insight. There is a hierarchy of complexity of cognitive tasks ranging from basic functions like coordinating the movements required to button a shirt, through to instrumental functions like mathematical calculations, and then to executive functions like planning and abstract thinking involving complexity and subtlety. This higher order cognitive functioning is the 'decision-making capacity' that the Tribunal is concerned with and every adult is presumed to have.
Cognitive screening tools
YA does not have a formal diagnosis of a cognitive impairment, although during a lengthy hospital admission in 2024, YA undertook a Rowland Universal Dementia Assessment Scale (RUDAS), which is a scale designed to assess cognitive impairment in people from all educational, cultural and linguistic backgrounds. YA scored 17/30, with a score of 22 or less being considered to demonstrate a potential cognitive impairment.[7] A referral was made to a Memory Clinic, but a further assessment has not yet occurred. There is no indication of what, if any, translation service was used for the RUDAS.
[7] Rowland Universal Dementia Assessment Scale (RUDAS) Administration and Scoring Guide, ( page 24.
Prior to signing a new Will in August 2023, RI took YA to see her general practitioner (GP) of 10 years, Dr W, to undertake a mini mental state exam (MMSE), which like the RUDAS, is a cognitive screening test. The interpreter used for this appointment spoke Language B, not Language A which is YA's first language. YA scored 25/30 on the MMSE, which is within the normal range.
Cognitive screening tools such as a RUDAS, MMSE and commonly a Montreal Cognitive Assessment, are a brief measure of cognition which involves an assessment of orientation, verbal skills, visuospatial skills, memory and attention. Screening tools are simply a 'screen' and are unable to adequately capture a person's ability to engage in the more complex thinking that is required when making decisions. For example, while a low score can suggest an impairment is present, it could also indicate a lack of education or language difficulties. Similarly, a high or 'normal' score could be achieved by an incapable person who has a higher level of education and retains their language skills.[8]
[8] XYZ at [69] citing Darzins et. al (eds), Who can decide? The six step capacity assessment process. Memory Australia Press Alzheimer's Association (SA) Inc, Glenside, S.A., 2000 at pp. 4 ff.)
Assessing a person's judgment in relation to complex matters such as health care, financial or legal matters cannot easily be evaluated in a one-off appointment and a 'pencil and paper' type test. A detailed assessment by a suitably qualified professional will allow for a more comprehensive and reliable measure of performance and ascertain how certain difficulties may be impacting upon a person's decision-making ability in daily life.
YA's background
I asked the family members that attended the hearing their view about whether YA was able to make her own decisions. The family members that attended the hearing were RI, her husband EL, LB, D1 and D1's son J. Everyone acknowledged that YA was presently unable to make her own decisions about her personal and financial matters. I place weight on the evidence of the family, given that they know YA the best.
I will next set out further features of YA's history that have contributed to YA's pattern of vulnerability over time.
Lack of education, social isolation, and dependence
YA left school aged 9 or 10 to become a servant and is illiterate in Language A. RI has been YA's carer for the last 20 years and would arrange food shopping, pay all bills, organise medical and dental appointments, and collect all medical supplies. The family told the Investigator that RI had access to and control over YA's bank account and Centrelink income from the time YA arrived in Australia in 1998. While YA was married to HU, he was reportedly not happy with YA's ongoing reliance on RI to manage her finances, but he was in his 80s at the time and could do little about it.
The family had always depended on RI and trusted her without question in relation to legal and financial matters. Their trust and reliance on RI grew due to her being instrumental in facilitating the entire family moving to Australia, acting as their sponsor and paying the costs of their immigration applications over 20 years ago. This created a strong sense of obligation to RI and meant that the family did not question her actions.
When HU passed away, he left D1, D2 and S1 a gift of $15,000 each. Family members told the Investigator that when RI was acting as executor of HU's estate, she told them that there was not enough money and requested that they sign over their entitlement to the $15,000 gift. They all signed over their inheritance, which demonstrates their trust in RI in legal and financial matters.
When the Investigator discussed HU's estate with RI, RI denied having been the executor of the estate. The Investigator's inspection of documents filed with Landgate confirmed that RI was the executor of the estate in addition to the Public Trustee.
Vulnerability to influence
RI gave evidence that YA signed a new Will in 2023 where RI directed how YA should gift Property 2. In a witness statement filed with the Tribunal, RI stated that:[9]
… In August 2023, my mother was so angry and disappointed about not getting any help or visits or calls from [LB] for over four years, she decided to create a new will. I took her to [Solicitor R] to do this. I have never tried to have [Property 2] transferred into my name and when my mother wanted to change to her will and bequeath [Property 2] to me, I refused and suggested she bequeath it to [her granddaughter D2], which she did.
My mother also included a section outlining why she had made no provision for her daughter, [LB].
[9] RI's witness statement dated 20 September 2024, page 3. The statement notes that YA made the decision to prepare the new Will after YA's 'cognitive test was recorded at 25'. This is a reference to the MMSE undertaken prior to the Will being signed. A copy of the MMSE results has not been filed with the Tribunal.
The granddaughter D2 informed the Investigator that in September 2023, RI advised that YA had completed a new Will leaving Property 2 to her and that she now must sign Property 2 over to RI. D2 told RI that she could not sign over something that was not hers.[10]
[10] D2 did not attend the Tribunal hearing of 25 September 2024. This information was contained in the written report from the Investigator filed on 25 September 2024 at page 13.
I have not seen a copy of the Will so I do not know whether an independent interpreter was present at the offices of Solicitor R when YA signed the Will. While YA was undoubtedly aligned with RI at that time, it is clear from her views and wishes expressed to the Tribunal and the Investigator that YA is currently aligned with LB.
Control of information
RI has acted as YA's interpreter for all medical appointments and during hospital admissions. YA's GP and the treating teams have been dependent on RI for insight in relation to YA's cognition and views. As such, there have been no objective views regarding YA's cognition or her ability to weigh up the pros and cons of different options before making important decisions.
The aged care assessment team assessment performed on 21 September 2023 states:
… [RI] provided information during the assessment and previously reported that her mother becomes very stressed and anxious with repeated assessments which she has experienced in the past 6 months and [RI] preferred to assist with interpreting.
…
[RI] did not raise any concerns regarding memory with [YA] orientated to days/dates, place and people with no safety concerns reported … No RUDAS or Geriatric Depression Scale completed at this time as not required[.]
It appears that independent interpreters were engaged for YA on two occasions; in March 2019 when the EPG was signed and witnessed by the GP, and in August 2023 when the MMSE was undertaken with the GP prior to attending upon Solicitor R. Both interpreters spoke Language B. The declaration on the EPG signed by the interpreter states that YA is a 'person who does not understand English and cannot write'. No interpreter was engaged when the EPA was signed in January 2019.[11]
[11] The EPA was signed on 10 January 2019 and lodged with Landgate on 7 March 2019. The witnesses were the GP and an employee of the medical practice. The EPG was signed on 21 March 2019 and includes the declaration by the interpreter. The witnesses for the EPG were the GP and a different employee of the medical practice.
The role of the interpreter is to convert one language accurately and objectively into another, and not to provide advice or guidance. No solicitors were involved in the preparation of the EPA or the EPG, and I discuss later in these reasons that the EPG was not completed correctly.
Conclusion in relation to presumption of capacity
Since moving to Australia, YA has been socially isolated and dependent on her family due to the significant literacy, language, and cultural barriers. YA has difficulty with answering questions in an organised, focused way. She has been unable to manage her bank account or pay her bills for decades. She has signed various legal documents with no independent legal advice and sometimes with no interpreter. It appears she has no memory of signing these documents and no understanding of how they have affected her rights. She transferred Property 1 to RI, which was clearly against her interests, and she now says she wants it back. She scored 17/30 on a RUDAS test performed around four months ago. Her family all agree that she is currently unable to make decisions about her personal and financial matters.
I am therefore satisfied, and I find, that the presumption of capacity has been set aside.
Issue 1 - does YA lack the capacity to make her own decisions about her personal and financial matters?
(1)(a) When can an administrator be appointed? The test for incapacity
To appoint an administrator for YA, I must be satisfied that she is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate.
The term 'mental disability' is defined in s 3 of the GA Act. The definition describes certain disabilities such as an intellectual disability, a psychiatric condition, dementia, and acquired brain injury. This is an inclusive definition, rather than an exhaustive definition, so it also:
… contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal, or which is objectively measurable. A mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties.[12]
…
… A finding that a person has a 'mental disability' may, of course, be referrable to the existence of one, or a combination of more than one, identified medical conditions. In other cases, the underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, but the existence of the mental disability may be beyond doubt.[13]
(1)(b) Does YA have a mental disability?
[12] FY [2019] WASAT 118 (FY) at [27].
[13] FY at [32].
The RUDAS score indicates poor cognition, and a referral has been made to a specialist for a thorough assessment. Based on this score, YA's presentation in the hearing, the information set out in the Investigator's report and YA's inability to manage her finances, I find that YA has a 'mental disability' as described in FY. The underlying cause of the mental disability is not clear, but its existence is beyond doubt due to the observed limitation in YA's thought processes and cognitive ability.
(1)(c) Does the mental disability cause YA to be unable to make reasonable judgments about her estate?
A person's 'estate' includes their assets, liabilities, income and expenses, and all of their financial affairs. YA's estate consists of her income from the aged pension and a monthly payment from HU's superannuation fund. She owns Property 2 and it is not known whether she has any other assets, as RI, being the person previously responsible for managing YA's finances, has not disclosed this information to the Tribunal.
For the Tribunal to decide whether YA is 'unable' to make reasonable judgments about her estate, I must consider the extent to which YA is able to engage in the cognitive process required to make a 'reasonable judgment and then compare that against YA's estate and circumstances.
In my view, there is no doubt that the mental disability causes YA to be unable to make reasonable judgments in respect of her estate. She had $67 in the bank when she moved to Property 2, is reliant on other people to pay her bills and does not remember or understand that she signed the EPA in 2019.
I am satisfied, and I find, that the mental disability is the cause of YA's inability to make reasonable judgments in respect of her estate. YA is therefore a person for whom I can appoint an administrator.
(1)(e) When can a guardian be appointed? The test for incapacity
To appoint a guardian for YA, I must be satisfied that she is over 18 years of age and that one or more of the following criteria apply:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
(1)(f) Does YA lack the capacity to make personal decisions?
I am satisfied, and I find, that YA is:
(a)currently incapable of looking after her own health and safety. RI states that she has been YA's sole carer for over 20 years until she moved in with LB in May 2024. YA has received aged care services from the Service Provider to assist with personal care and domestic support since November 2020;
(b)currently incapable of making reasonable judgments in respect of her person. I am satisfied that she is not able to identify or source her own support services, as LB is seeking to change service providers and YA is unable to assist. YA would also not be able to independently recognise if her care needs increased to the point of requiring residential aged care due to her fixation on not going into residential aged care; and
(c)in need of supervision and oversight in order to protect her health and safety, as she is frail and at significant risk of falls and injury.
I am satisfied, and I find, that YA is a person for whom I can appoint a guardian.
Issue 2 - is there a need for orders or a less restrictive option available?
Having regard to that evidence, there is no doubt that YA requires assistance to deal with her estate and to make decisions about her personal matters. The question I need to answer at this stage is not whether she needs assistance, but whether she needs an administrator or a guardian to be appointed by the Tribunal for that purpose.
I must bear in mind the need to adopt a less restrictive option if possible. It is therefore necessary to examine whether the EPA and EPG are less restrictive ways for decisions to be made in YA's best interests.
(2)(a) Are informal arrangements sufficient for financial/legal matters?
RI says that she has not used the EPA. RI is YA's nominee at Centrelink, which is a less restrictive way of managing YA's aged pension. However, RI did not report the gift of Property 1 when she was the Centrelink nominee in 2017, which may have created a possible debt situation with Centrelink which will need to be resolved. The effect of gifting on Centrelink payments is discussed later in these reasons.
I am satisfied, and I find, that the informal arrangement where RI managed YA's finances and legal matters has resulted in mistrust and family conflict, and it is not appropriate that any informal arrangements continue.
(2)(b) Is the EPA a less restrictive option?
YA signed the EPA in 2019 appointing RI as her attorney. If there was certainty that YA understood the document's purpose, and had capacity to sign it, it could be seen as an indication of her wishes at the time of execution, at least in trusting RI to make decisions. It could also indicate the level of reliance or dependence on RI, given the barriers YA faced in Australia. However, no interpreter was present when she signed the EPA and she told the Investigator that she would not sign a document that would give RI control over her money.
When the application was filed, the Tribunal made the usual order for the attorney to file a copy of the EPA and a statement of the assets, liabilities, and regular income and expenditure of the donor as at the date of the order. As YA had been living with LB at Property 2 for around three months, RI stated that she had no knowledge of the information sought 'as at the date of the order' other than to say that YA was the owner of Property 2 and was receiving the aged pension. The Investigator explained to RI the need to provide disclosure of YA's assets, liabilities, income and expenses, and even with this explanation, RI did not provide the information to the Tribunal.
The only other information the Tribunal was able to glean about YA's finances is that:
(a)when YA started living with LB in May 2024, YA only had $67 in her bank account, which was reported by LB to the Investigator; and
(b)YA receives the aged pension in the amount of $900 per fortnight and a payment from HU's superannuation fund, which RI reported to the Investigator. It is not known how much that payment is, how much superannuation remains, where it is held or how it has been managed since HU died 18 years ago.
Transfer of Property 1 to RI
While the EPA was not used to affect the transfer of Property 1 in 2016/2017, this transaction occurred while RI was informally managing YA's finances and provides an example of a decision that was against YA's interests and benefitted RI. YA was not provided with an independent interpreter, and there is no indication that she was provided with independent legal advice.[14] In addition, it does not appear that the relevant rules in relation to gifting or the assessment of duty were complied with.
[14] YA was elderly, being aged 81 at the time of the transfer, does not speak English, is illiterate, no interpreter was present, and she had no experience with this type of transaction. These factors have been found to constitute a 'special disability' in the context of a property transaction where the person has entered into an agreement that is against their interests, particularly when the person that benefited from the transaction was aware of the special disability - Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447.
In December 2016, RI started making arrangements for her mortgage of $884,000 to be secured by Property 1.[15] YA then signed the transfer of land document (TOL) to transfer Property 1 into RI's name.[16] It does not appear that any independent parties were involved in the transfer of Property 1 from YA to RI as:
(a)the witness of both YA's and RI's signatures on the TOL was RI's husband EL, who stated his occupation as 'accountant' and included a different residential address to that of RI;[17]
(b)there is no indication on the TOL or any other document lodged with Landgate that an interpreter was engaged to interpret the documents for YA;
(c)YA's identity was verified at Australia Post on 6 January 2017, with the verification noting that she was unrepresented; and
(d)ten days later, EL lodged the documents with Landgate, meaning no settlement agent or any other person was involved.[18]
[15] Documents lodged with Landgate state that on 8 December 2016, RI's indentity was verified by the lender that would lend RI $884,000. That document records RI's address as at 8 December 2016 as "Unit 8/4 [First Street]" which is the current address of both RI and EL as set out in documents filed with the Tribunal. Publically available records show that this property was purchased on 18 September 2016.
[16] The TOL was signed on 21 December 2016.
[17] The TOL records RI's address as "Unit 5/17 [Second Street]"and EL's address as "Unit 17/5 [Second Street]". Although RI and EL had been in a relationship since 2012, they did not marry until 2020.
[18] The transfer of Property 1 was finalised on 16 January 2017 when EL lodged the documents with Landgate.
Around 3 weeks after the transfer of Property 1 was finalised, documents were lodged with Landgate that discharged RI's existing mortgage that was secured by a different property and the new mortgage was registered against Property 1 to secure RI's borrowings of $884,000.[19] It is not known what these funds were used for, although Landgate records show that RI is currently the registered proprietor of four properties in Western Australia, with RI purchasing further properties in late 2017 and 2018.
[19] These documents were lodged on 6 February 2017.
RI was YA's Centrelink nominee at the time of the transfer and continued to receive and use YA's pension on her behalf. The gift of Property 1 was not declared to Centrelink in 2017 in accordance with the Centrelink reporting requirements. Had the gift been declared, it may have resulted in cancellation of YA's pension entitlements for a period of five years.
The consideration for the transfer of Property 1 was stated on the TOL to be $275,000. Property 1 was purchased by HU in 2003 for $177,000, so thirteen years later, $275,000 is likely to be undervalued. As Property 1 was a gift and it was not intended that any money be paid, the relevance of the consideration stated on the TOL is for the calculation of stamp duty. The TOL sets out that the 'dutiable value' of Property 1 was $275,000 and the stamp duty payable was $7,885.
If a transfer is between related parties, a valuation is usually required before an assessment for stamp duty is issued. As YA, RI and EL all have different surnames and the TOL states that they all live at different addresses, there was no indication on the documents that the parties were related. It does not appear from the evidence before the Tribunal that the related party transaction was disclosed or that a valuation was undertaken.
Conclusion in relation to EPA
I am satisfied that the EPA is not a less restrictive option for the management of YA's estate as RI has not been forthcoming with the Tribunal about her management of YA's finances and historically has not made appropriate declarations as required. The Tribunal is not aware of the costs YA paid while living at RI's apartment or why the balance of her bank account is so low. Further, if RI was responsible for instigating the sale of Property 2 if YA was to move into aged care, that would cause considerable conflict in the family and further damage to the relationship between YA and RI.
RI has also received Property 1 from YA, who now says she wants it back. Based on the information provided to Landgate by RI in the TOL and the question of whether there has been an overpayment of YA's pension, I am satisfied that the circumstances of the transfer of Property 1 require further investigation. It would be against RI's interests to pursue these matters herself.
I am therefore satisfied on the evidence before me, and I find, that there is no less restrictive way for financial and legal decisions to be made in YA's best interests other than by the appointment of an administrator. YA requires someone to have the legal authority, among other things, to operate her bank account, pay ongoing bills as required and arrange to pay for aged care when the time comes. I will therefore revoke the EPA and appoint an administrator to manage YA's estate.
(2)(c) Are informal arrangements sufficient for personal decisions?
It is clear from the evidence before the Tribunal that RI has been making decisions for YA for a number of years, the most significant being the change of accommodation, engagement of aged care services and, by virtue of her acting as translator for YA in medical settings and being listed as next of kin, I find that she has made medical treatment decisions for her mother. However, the EPG was not completed correctly and I will revoke it on that basis.[20]
[20] The election at section 4 of the EPG was not made.
YA's decision to live with LB at Property 2 means that the historic informal arrangement, where RI would assist with or make decisions, is no longer operating. To ascertain whether there is a need for the Tribunal to appoint a guardian, I must examine whether there are any ongoing personal decisions that YA is unable to make herself and would require a legally appointed guardian to make for her.
As is explained in further detail later in these reasons, YA requires her decision-maker to have the legal authority to make decisions about ongoing medical treatment and procedures, services, accommodation, contact and legal matters. I am therefore satisfied on the evidence before me, and I find, that there no less restrictive means available for personal decisions to be made in YA's best interests and there is a need for the Tribunal to appoint a guardian.
Issue 3 - who, what and how long?
(3)(a) Who should be the administrator?
When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of YA, is suitable to act as the administrator of her estate and will be able to perform the functions vested in them.
LB has proposed herself for nomination. I find that LB is over the age of 18 years and has consented to act as the administrator. However, I am unable to appoint LB due to a conflict of interest. If a decision was made for YA to move into aged care, and it was necessary that Property 2 be sold to pay a refundable accommodation deposit, then LB may prefer her own interests of continuing to live in Property 2 over YA's necessary move into aged care. This means that LB will not be able to perform the functions vested in the administrator.
In contrast to RI, who is employed, lives in a dual-income household and owns four properties, LB has been reliant on Centrelink benefits for much of her life in Australia. LB would likely find it extremely difficult at this point in her life, aged in her 60s and unemployed, to find stable alternate accommodation. It is understandable that LB's desire to prevent the sale of Property 2 would be very strong.
I am satisfied, and I find, that there is no one willing and suitable to be appointed as YA's administrator. The only option open to the Tribunal is to appoint the Public Trustee.
(3)(b) What should the administrator's powers be?
I am satisfied that it is appropriate that the administration order be a plenary order, which will allow the administrator to deal with all aspects of YA's estate in her best interests. The evidence before the Tribunal is that YA is unable to make decisions about simple or complex financial matters, as RI has assisted YA with all aspects of her finances including grocery shopping and bill payment.
I will include a direction that the administrator consider the transfer of Property 1 to RI in 2016/2017 and the consequences of that transfer. I will also include a gifting authority of $500 per year so the administrator can purchase gifts on YA's behalf, noting that she has grandchildren and great-grandchildren.
(3)(c) Who should be the guardian?
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of the person, is suitable to act as the guardian, is not in a position where their interests' conflict or may conflict with YA's interests and that the proposed guardian will be able to perform functions vested in them.
The only family member that proposed herself for nomination was LB. I find that LB is over the age of 18 years and has consented to act as the guardian. However, for the same reason that I cannot appoint LB as the administrator, I also cannot appoint her as YA's guardian due to the conflict of interest that would arise if YA had to move into aged care.
In relation to the other spheres of decision-making, the conflict between LB and RI means that LB would likely not share information about YA's health and welfare with RI and ensure that all family members were kept updated. This is what is happening currently as RI has expressed concern that she has not been kept updated about her mother's health.
In addition, the guardian must act in YA's best interests to maintain her supportive relationships.[21] The Tribunal has been advised that since YA has moved to Property 2, many of YA's friends have been unable to spend time with her, claiming that LB is preventing that contact.
[21] GA Act, s 51(2)(g).
I am satisfied, and I find, that the only option open to the Tribunal is to appoint the Public Advocate as YA's guardian.
(3)(d) What functions should the guardian have?
Accommodation
Where YA lives and who she lives with is the key focus of concern for all members of the family and underpins the application to the Tribunal. At some point, YA's care needs may increase to a point where she requires a level of care and supervision that can only be provided in a residential aged care facility. If and when that time comes, it is necessary that someone independent is authorised to make a decision about accommodation that is solely in YA's best interests.
Medical treatment
I find that YA requires a medical treatment guardian to give informed consent to medical treatment and procedures. YA has a severe form of osteoporosis and sees a rheumatologist. She suffers pain from her sciatic nerve, which causes her to be unable to walk at times. The referral that was made to the Memory Clinic in May 2024 still needs following up.
RI is listed as YA's next of kin for medical treatment, which has allegedly prevented other members of the family from obtaining information while YA is in hospital and from making and attending GP appointments with YA. While YA is living with LB, this has the potential to impact on YA's ability to access medical care.
While LB and RI would have standing under s 110ZD of the GA Act to make medical treatment decisions as her nearest relatives, I am satisfied, and I find, that the Tribunal must appoint a medical treatment guardian so that there is clarity for all health professionals that treat YA about who has the authority to make medical treatment decisions for her.
A medical treatment guardian would also ensure that all family members were kept updated about YA's health and notified about any further admissions to hospital. If YA was nearing the end of her life, the guardian would ensure that all family members would be told and have the opportunity to say goodbye, when that time came.
Services
RI is the My Aged Care nominee for YA and has previously engaged the Service Provider that provides services to YA. LB and her daughters say they have been unable to communicate with My Aged Care on YA's behalf and they have been prevented from making changes to YA's support services as RI still has YA's identification documents.
The manager of the Service Provider told the Investigator that they had attempted to provide support services to YA, but had been prevented from entering Property 2. LB and her daughters told the Investigator that they wish to change service providers due to concerns that YA's privacy has not been respected.
I am therefore satisfied, and I find, that there is a need for a guardian appointed by the Tribunal to be able to make decisions about the aged care services YA will have access to, to engage the specific service providers and to hear the concerns of all family members in relation to the provision of services to YA.
Contact and legal functions
YA told the Investigator that she fears that RI has the power to collect her and admit her to a nursing home at any time, and that no one would know where she was. The police have been called to Property 2 in July and September 2024 when RI and EL attended to speak to YA. They allegedly shouted abuse and demanded that the Tribunal application be withdrawn, which they deny. There are also allegations that family members have made threats to some of YA's friends, which they deny.
RI states that LB does not answer the phone to YA's friends, so YA is being socially isolated while living with LB. A number of YA's friends have filed witness statements which say they have not seen her since she moved to Property B in May 2024.
I am satisfied, and I find, that it is necessary that YA's guardian has the authority to make decisions about who YA will have contact with and the extent of that contact. I will also include the next friend legal function, should any legal intervention or a restraining order be required, if the alleged harassment and intrusive behaviour from RI or other community members continue.
Conclusion
I am therefore satisfied that there is a need for a guardian appointed by the Tribunal to make decisions for YA about her accommodation, medical treatment, services, contact and legal 'next friend'.
(3)(e) How long should the orders run before review?
When making orders, the Tribunal is required to fix a period for the review of the order, the maximum period of time allowed being 5 years. Given the ongoing nature of YA's health challenges and the level of conflict in the family, I will make the order reviewable in 5 years as it does appear on the evidence that YA's need for a substitute decisionmaker will be lifelong.
When the orders are reviewed, the Tribunal can then examine whether there has been sufficient resolution of the issues which currently preclude the appointment of a family member.
Orders
GAA 3669 of 2024
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [YA], is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
Administration
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
4.The enduring power of attorney dated 10 January 2019 by which the represented person appointed [RI] to be their attorney, is revoked.
5.The administrator is directed to consider the transfer of [address] to [RI] in 2016 and the consequences of that transfer.
6.The Tribunal will provide the Public Trustee with a copy of all documents received by the Tribunal in these proceedings.
7.The administration order is to be reviewed by 25 September 2029.
Guardianship
8.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia 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)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact;
(e)to determine the services to which the represented person should have access; and
(f)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person.
9.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.
10.The guardianship order is to be reviewed by 25 September 2029.
GAA 3760 of 2024
The Tribunal notes:
1.[YA] appointed [RI] as her enduring guardian pursuant to an enduring power of guardianship dated 21 March 2019.
The Tribunal orders:
2.The enduring power of guardianship is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
28 OCTOBER 2024
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