Gd and Ad [2005] WASAT 203 (11 August 2005)

Guardianship and Administration Act 1990 (WA), s 16, s 43(1), s 43(1)(b), s 86, s 87, s 90, s 119(3)

1 One of the sons of the represented person, her primary carer, applied to the Tribunal for a review of the administration order appointing his brother administrator of the estate of their mother. The application was made because the conflictual relationship between the brothers made it impossible for them to work together in the best interests of their mother.

2 The administration order made on 21 December 2004, appointing the son administrator was revoked and an order appointing the Public Trustee plenary administrator for five years was made.

3 An application from the Public Advocate for review of the guardianship order made on 21 December 2004 was heard and the order was revoked.

4 Applications for costs made by solicitors representing each of the brothers were dismissed.

5 GD, the represented person, is an 87 year-old Italian widow with two sons, FD and AD. Both sons are married and have children. After the death of her husband, the represented person continued, with the assistance of her sons and their families, to live alone in her home of 35 years until her admission to a nursing home. After a period in the nursing home, GD moved in to live with her son, AD, and his wife in their home where she continues to reside.

6 Written reasons are provided at the request of the solicitor for AD, primary carer and son of the represented person.

7 As required in guardianship and administration matters, the name of the represented person, the names of family members and identifying information has been anonymised to protect the privacy of the represented person and her family.

Chronology of events leading up to the hearing of 21 December 2004

8 On 23 April 2004, Dr W, a geriatrician assessed GD, the represented person, as having deterioration in her mental state that could be dementia of the Alzheimer's type. The diagnosis of Alzheimer's dementia was confirmed in July 2004.

9 On 20 May 2004 the represented person executed an Enduring Power of Attorney (EPA) in favour of her son FD. When questioned in December 2004 by a representative of the Public Advocate about the EPA, the represented person had no recollection of signing this document.

10 The represented person was admitted to Royal Perth Hospital on 7 August 2004 due to severe anxiety and was discharged on 13 August 2004 into the care of her son, FD, and his wife ED. Prior to discharge GD was assessed as having "moderate to severe deficits in orientation and therefore the Enduring Power of Attorney should be invoked". GD stayed with FD and his wife for a week and then returned to live in her own home, with a care package to provide assistance and prompting with medications. FD and ED were keen for GD to continue to reside with them but she insisted on going back to her own home.

11 In August 2004 Dr W assessed GD as no longer having "testamentary" capacity and as unable to continue to live independently in the community. Meanwhile FD and ED were finding it increasingly difficult to continue to care for GD in her own home as she would often lose her keys, forget to eat and think people were coming into her home to steal her possessions. She frequently rang FD in a panic and crying. FD visited his mother several times a day in response to her panic attacks and to check that she was safe and comfortable. Because of his mother's dementia FD decided it was in her best interests to place her in supported hostel accommodation.

12 AD, GD's other son, expressed a desire to have his mother live with him and his family. AD indicated that he was prepared to pay for carers for his mother in his home.

13 On 28 October 2004 solicitors lodged, on behalf of FD, an application with the then Guardianship and Administration Board, (Board) for a declaration of incapacity in respect of GD so that the EPA might come into force.

14 On 15 November 2004, GD was assessed by the Aged Care Assessment Team (ACAT) as having some short-term memory decline and being eligible for low level care in an aged care facility. GD was said to be independent with most tasks of daily living but required assistance with shopping, banking, some cleaning and laundry.

15 On 26 November 2004, solicitors lodged, on behalf of FD, a guardianship application with the Board stating that FD believed his mother should continue to reside in the low care aged facility and that his brother AD wanted their mother to live with him and his wife. FD did not believe that the care provided by his brother and his wife would be adequate for his mother's safety and well being.

16 On 27 November 2004 AD lodged an application for guardianship, proposing himself as guardian on the basis that as the guardian he could have his mother moved out of the nursing home and in to live with him and his wife. In his application, AD alleged that his mother would not have understood the EPA she executed in favour of his brother FD in May 2004 because of her diagnosed dementia and her limited English.

17 On 30 November 2004 AD lodged an application for the appointment of an administrator and nominated himself, stating that his mother was unable to make financial decisions for herself.

18 On 17 December 2004 solicitors lodged, on behalf of FD, an application for administration after becoming aware that AD had lodged an application for administration and was requesting that the EPA be revoked. FD nominated himself as administrator

19 The Board informed FD's solicitors that the EPA may be defective because the alternative clause was not struck out in the acceptance signed by the donee, FD. The modified acceptance with alternative (a)(i) struck out was subsequently received by the Board.

20 On 21 December 2004, the matters were heard by a three member Board. GD was found to be a person for whom orders could be made. A limited guardianship order was made appointing the Public Advocate with the authority to decide where GD was to reside, either temporarily or permanently, with whom she should reside, to consent to any treatment or health care and to determine contact, if any, that the represented person should have with others. The appointment was for a period of five years. A plenary administration order was made appointing FD administrator for a period of five years. The orders were to be reviewed by 21 December 2009. The application for a declaration of incapacity was dismissed as it was felt that the level of conflict between the sons warranted more formal accountability than an activated EPA would provide. The EPA was not revoked as it had not come into force.

Chronology of events leading up to the 14 June 2005 hearing

21 On 8 April 2005, AD applied to the State Administrative Tribunal (SAT) for a review of the administration order appointing his brother FD on the basis that he was "unable to work or effectively communicate with the administrator". In his application, AD requested the "removal of the current administrator" and appointment of the Public Trustee as administrator.

22 The Public Advocate applied to the SAT on 14 April 2005 for revocation of the guardianship order on the basis that there were no current guardianship issues.

23 The hearing was attended by the following persons:

FD, administrator and son of the represented person

A representative of the Public Advocate (The Public Advocate)

24 At the hearing, the solicitor for AD questioned the appropriateness of the translator who spoke a different dialect from the represented person. AD discussed this potential problem with his mother and asked her to inform him if she had difficulty in understanding the translator. GD agreed to do this. The issue of the need for an interpreter in the appropriate dialect was raised again later in the hearing by the solicitor. The Public Advocate assured the Tribunal that, although she had an interpreter present during her interview with GD, it was clear to her at that time that GD understood enough English to respond in English to the Public Advocate's questions.

25 The matter was heard before a three member Tribunal.

26 In addition to the evidence in relation to capacity considered at the previous hearing, the Tribunal had reports from GD's GP, Dr B, who assessed GD as having dementia which was diagnosed in 2004. The GP stated that he was not sure about GD's capacity to make reasoned decisions but felt she was "most likely incapable" of making reasoned decisions for herself in respect of any of the major aspects of her life.

27 The Tribunal also had a report from an ACAT social worker, who reported that GD had "significant short term memory impairment and needs constant direction, prompting and supervision" and "would be unable to manage her finances". The social worker further reported that the appointment of an administrator "from within this family has exacerbated the resentment and bitterness between the brothers" which has not been in the best interests of GD.

28 The Public Advocate provided the Tribunal with the following information about the current situation, the ongoing need for a guardian and the history leading to the appointment of the Pubic Advocate as guardian.

29 When the guardian was appointed, on 21 December 2004, the most significant issue was the decision to be made about where and with whom GD was to live. The decision to place GD in supported accommodation had only been made by FD on the advice of the aged care assessment team (ACAT). At that time AD and his mother were not having any contact because of a disagreement between them which had occurred some months previously. When AD learned from friends about his mother's move into supported accommodation he was very distressed. When he visited his mother, she told him of her dissatisfaction with the accommodation and her wish to return to her home to live.

30 On her appointment as guardian, the Public Advocate explored all accommodation options, taking into account GD's expressed wish to return home. When it was realised that a return home was not feasible GD expressed a wish to live with AD. This was arranged and GD continues to reside with AD and his family.

31 Despite the breakdown in communication between FD and AD, AD and his family have assured FD that he will be informed if and when their mother is no longer able to reside with AD and needs to move into supported accommodation. Given all of the above it was the Public Advocate's view that there was no longer an ongoing need for a guardianship order to make decisions in relation to accommodation issues.

32 Another function of the guardian was to consent to any treatment or health care of the represented person. The Public Advocate informed the hearing that the issue at the time of the appointment had been about who GD's general practitioner should be and this had now been resolved. No medical issues had arisen during the term of the order.

33 The Public Advocate informed the Tribunal that the issue of contact for the represented person, which was a part of the order, was not a matter for the Public Advocate to manage as GD had made it very clear, both prior to the hearing and by comments she made at the hearing, that she did not wish to have contact with some members of her family.

34 It was agreed by all parties at the hearing that there was no current need for a guardian.

35 AD informed the Tribunal that he made an application for review of the administration order because he believed that his brother FD was not managing the role of administrator in a satisfactory manner. He said there were overdue accounts to the lawn mower man and Swan Community Care Services. He expressed concern about the management of a request to prune a tree, which the administrator had allegedly failed to do resulting in Western Power pruning the tree at some cost to the represented person. There was also disagreement about the amount to be paid to AD's family for the care and support of his mother in his home.

36 MD, AD's son, informed the Tribunal that he has taken on the role of intermediary between the brothers, AD and FD, because of the breakdown in their relationship. MD said that he and his father had tried unsuccessfully to negotiate an appropriate monthly amount to be paid for the care of GD and for reimbursement for expenses incurred, such as the purchase of incontinence pads, medications, clothing and GD's personal spending.

37 MD agreed that there is an ongoing need for an administrator but felt this role should be given to someone who is "neutral and independent". MD said that he had discussed the situation with the Public Trustee and felt reassured that the Public Trustee would manage the role in a manner sensitive to GD and the family's needs. The Public Trustee had indicated to MD that they would view favourably the request that the family home not be sold or rented out as GD continues to visit the home on a daily basis. MD said that he and his family were prepared to maintain the home internally but were not able to maintain the external areas. There was some discussion and disagreement in the hearing about the degree of security required to ensure that the home was safe from intruders.

38 FD informed the Tribunal that he had received an account from AD for $335 for transporting their mother approximately 120 kilometres three times a week. FD also said that AD wanted $27 800 a year for the care of their mother and he believed this amount to be excessive. FD had asked AD to justify this amount with invoices of expenses and had been informed that he would receive the invoices once a year. FD had informed AD that this was not satisfactory.

39 FD informed the Tribunal that he was willing to continue in the role of administrator and considered that he had been doing a good job in that role. He said that provided his brother sent him receipts and invoices he was willing to pay expenses as requested.

40 It was clear from the information provided in the hearing by the two brothers that there is a high level of conflict between them and a significant difference of opinion about the amount of money that should be paid out for the care of their mother in AD's home.

41 FD's solicitor outlined to the Tribunal the steps taken by FD to inform himself about appropriate payment for the care of his mother. FD had also attempted to pay the lawn mowing account and had discussed with the local Council about the pruning of the tree previously mentioned.

42 It was the recommendation of the Public Advocate that, given the level of distress caused to the family by the fact that the brothers could not come to an agreement about a suitable amount for the care of their mother, it was appropriate for the Tribunal to consider appointing the Public Trustee as administrator.

43 MD informed the Tribunal that at the previous hearing it had been decided to allow $1500 per annum for gifting but this had not been written into the order. It was agreed that this was an appropriate amount and would allow GD to continue "to maintain the culturally appropriate position" with regard to giving gifts to members of her family

44 The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (the Act).

45 These principles are:

"(2) (a) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.

(b) Every person shall be presumed to be capable of ¾

(ii) making reasonable judgments in respect of matters relating to his person;

(iv) making reasonable judgments in respect of matters relating to his estate,

until the contrary is proved to the satisfaction of the State Administrative Tribunal.

(c) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.

(d) A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.

(e) An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.

(f) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."

46 On receipt of an application for review under s 86 of the Act, except in the case of the Public Advocate, a represented person or a guardian or an administrator, the Tribunal must give leave under s 87 to an applicant to apply for review. In this case the Public Advocate, the appointed guardian of the represented person, did not require leave to apply for a review but AD was a person to whom leave must be granted.

47 Section 87(5)(b) provides:

(b) if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review."

48 The Tribunal was satisfied, in accordance with s 87(5)(b), that, although there had not been a change of circumstances, the unworkability of the order because of the conflict between the brothers was sufficient reason for a review to be held and therefore granted leave to AD to apply for the review.

49 Section 90 outlines the powers of the Tribunal to confirm, amend or revoke an order and to appoint a new or additional guardian or administrator.

"90. Powers of State Administrative Tribunal on review

(1) Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order -

(a) amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;

(b) revoke the order, or revoke the order and substitute another order for it_;_ or

(i) revoke the appointment of any guardian or administrator;

(ii) appoint a new or additional guardian or administrator_;_

(2) A review under this Part is in the State Administrative Tribunal's original jurisdiction."

50 Section 119(3) of the Act provides the following hierarchy of persons who may consent to the medical and dental treatment of a person who is unable to consent on their own behalf.

51 For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons -

"(a) a guardian of the person needing the treatment;

(b) the spouse or de facto partner of the person needing the treatment;

(c) a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;

(d) a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;

(e) any other person who maintains a close personal relationship with the person needing treatment_;_ or

52 Section 16(4) of the Act gives the Tribunal the power to approve payment of costs out of the assets of the represented person if it is satisfied that a party to proceedings has acted in the best interests of the represented person.

(a) at the instigation of the State Administrative Tribunal_;_ or

(b) at the instigation of a party and the State Administrative Tribunal considers that the circumstances are exceptional,

the Tribunal may approve payment to him of such amount as it thinks fit in or towards defraying any costs and expenses incurred by him in doing so, and an amount so approved shall be paid from moneys appropriated by Parliament for that purpose.

(4) The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.

(5) Nothing in this section limits any other power of the State Administrative Tribunal under the State Administrative Tribunal Act 2004."

53 In this case, there are two applications for review of orders, one for guardianship and one for administration. Although there are slightly different requirements to be satisfied in reviewing these orders both depend on evidence in relation to the represented person's capacity to make reasoned decisions in respect of lifestyle and financial matters.

54 With regard to GD's capacity to make reasoned decisions, the Tribunal accepted the decision made in the previous hearing in December 2004, that she was a person for whom orders could be made. This assessment was based on reports from the geriatrician, Dr W, who had known GD, at that time, for two years and had assessed her as incapable of making reasoned decisions in relation to her personal health care, living situation and financial affairs. In making the determination in December 2004, the Tribunal also had access to reports from Dr R and the social worker with the aged care assessment team both of whom agreed that GD lacked the capacity to make reasoned decisions.

55 In making its determination in relation to capacity at the June 2005 hearing, the Tribunal, in addition to the decision of the Tribunal in December 2004, also considered the evidence provided in written reports from the social worker who conducted the ACAT assessment of GD in February 2005 and Dr B, GD's General Practitioner (GP) for the previous six months, who was "not sure" about GD's capacity to make reasoned decisions.

56 The Tribunal found that the assessment conducted by Dr W, a specialist in the area of aged care who had known GD for two years at the time of his assessment, carried more weight than that of Dr B, a GP, who had only known the represented person for six months.

57 The Tribunal was satisfied from the evidence in the written reports provided for the hearings on 21 December 2004, the 2005 written report from the ACAT social worker and the oral evidence provided at the hearing on 14 June 2005, that GD was a person for whom orders could be made.

58 In reviewing the guardianship order, the Tribunal noted the evidence from the parties, including the Public Advocate, that the accommodation issue had now been resolved as GD was currently living with her son, and family members had agreed that she would eventually require full time care. When this time comes the family have agreed that they will all be involved in, and informed about, the decision to move GD into residential care.

59 GD is in excellent physical health and there are no current health issues that require decisions to be made. If future medical decisions are required the Tribunal is satisfied that this can be managed under s 119 of the Act which provides a hierarchy of persons who can give consent to treatment.

60 The contact issue was of concern to the Tribunal but it was clear from the evidence provided at the hearing and particularly from statements made by GD that it was her wish to discontinue contact with some members of her family. This matter could not therefore appropriately be managed by any external person.

61 The Tribunal found that there was no current need for a guardianship order and revoked the order made on 21 December 2004.

62 As stated previously, the Tribunal is satisfied that GD is unable to make reasonable decisions in respect of her estate and therefore continues to be in need of an administrator.

63 AD continues to be dissatisfied with the amount that FD, the administrator, had determined is appropriate for the care of their mother. The Tribunal accepts that FD was extremely diligent in seeking advice from various authorities including the Public Advocate and the Public Trustee, in trying to determine an appropriate amount to pay for the care of their mother. Unfortunately, the brothers were not able to come to a resolution of this matter and reach an agreement about the amount to be paid. It was apparent to the Tribunal that, given the level of conflict between the brothers, the current administration order was unworkable. This is not to be considered in any way a criticism of the conduct of FD in his role of administrator.

64 The Tribunal found that the level of distress caused by the disharmony between the administrator and his brother, who had the care of their mother was impacting on all members of the family, including the represented person and found that it was not therefore in her best interests for the continuation of the order appointing her son as administrator.

65 The Tribunal had no criticism to make of the performance of the administrator in his role but recognised the difficulties presented by the conflictual relationship between the brothers, both of whom were playing important parts in the care of their mother and her estate.

66 For the reasons outlined above, the Tribunal revoked the order appointing FD administrator of his mother's estate and appointed the Public Trustee plenary administrator for a period of five years.

67 On 20 June 2005 solicitors for FD, and on 11 July 2005 solicitors for AD, wrote to the Tribunal requesting costs under s 16 of the Guardianship and Administration Act.

68 Section 16(4) provides that the Tribunal may order such costs relative to the proceedings as it thinks fit if it is satisfied that a party has acted in the best interests of the represented person.

69 It has been submitted that FD and AD acted in the best interests of their mother, the represented person. The Tribunal does not doubt FD and AD's good intentions or that they have their mother's best interests at heart, but, the requirement in s 4 that the best interests of the represented person shall be the Tribunal's primary concern involves considerations broader than the good intentions of the parties. In this case the Tribunal has taken into consideration the following:

(i) both brothers had previously attended the Tribunal hearing and therefore understood that hearings are conducted in an informal and non threatening manner generally without legal representation.

(ii) there was effectively no disagreement about the capacity of the represented person warranting legal representation to the Tribunal on this point.

(iii) there was no real complexity in the estate warranting the involvement of legal counsel in presenting a case to the Tribunal.

(iv) the conflict between the brothers goes beyond the matters being dealt with in the hearing. The Tribunal is of the view that there is no compelling reason why the represented person should pay for legal representation for her sons because they have been unable to resolve their differences which the Tribunal understands are of a long standing nature preceding the making of the administration order in December 2004 and therefore not relevant to the proceedings.

70 The Tribunal has a statutory obligation to act in the best interests of the represented person and is not satisfied that it is in the best interests of the represented person for her estate to bear the cost of the legal representation of her sons at the review hearing on 14 June 2005.

71 The Tribunal considered all the evidence available prior to, and at, the hearing, and is satisfied that GD is a person for whom orders can be made, that there are no outstanding guardianship decision to be made, that there is a need for, and it is in GD's best interests, that an administration order be made.

72 The Tribunal made the following orders:

1. On the application by AD in respect of GD, leave be granted to review the administration order dated 21 December 2004.

2. The order dated 21 December be revoked and an administration order in the following terms be substituted for it:

(a) The administrator is authorised to expend up to a total amount of $1500 per annum on gifts on behalf of the represented person.

(b) The administrator is directed to consult with AD and FD prior to exercise of sale or lease of the property.

3. The guardianship order dated 21 December 2004 be revoked.

I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS D DEAN, MEMBER