GUARDIANSHIP ... it is important to be aware of the early signs of dementia and the difference between dementia and Alzheimer's disease.
Dementia is the term used to describe losing one's memory and speech, with Alzheimer's disease being the most common cause.
In the early stages, it may appear as exaggerated forgetfulness, but as the disease progresses, memory loss, changes in thinking and speech, and changes in behavior may occur.
Other diseases that can cause dementia include vascular dementia, caused by small strokes, and Lewy body disease, which also presents symptoms similar to Parkinson's disease.
Although dementia is not hereditary, an early diagnosis is important as there are treatments that can be offered and it is important to prepare for the future.
Keep an eye out for extraordinary forgetfulness and out of character behaviour, such as putting food in the wrong place or tripping over words in conversation.
If you notice these signs, encourage your family members to seek medical attention for a proper diagnosis.
If you or someone you know needs help applying for or dealing with a guardianship application at the State Administrative Tribunal of Western Australia, please don't hesitate to contact me for assistance. I'm here to help, having acted in more than 100 such applications during the last 5 years.
Financial Elder Abuse: A Serious Issue Affecting Older Australians
As a guardianship lawyer, I've seen first-hand the devastating effects of financial elder abuse on Australian seniors.
If you are a financial advisor, read this blog for signs that financial elder abuse may be happening to your clients, and what role you can play in protecting your clients.
Financial elder abuse is a serious issue that affects many older Australians every year. Elder abuse can take many forms, including financial exploitation, physical abuse, and emotional abuse.
As financial advisors, you are often in a prime (and sometimes ‘only’) position to be aware of the signs of elder abuse and to take action when you suspect that a client may be at risk.
The following are 5 signs that financial elder abuse may be happening:
Sudden changes in financial arrangements, such as the appointment of a new power of attorney or the transfer of assets to a new account.
Unexplained withdrawals from accounts or the use of an elderly person's funds without their knowledge or consent.
The appearance of new "friends" who are taking an interest in the elderly person's financial affairs, especially if they seem to be trying to isolate the person from their family and trusted advisors.
Changes in the elderly person's demeanour or behaviour, such as increased confusion or agitation, that may be caused by financial stress or exploitation.
Unexpected changes in the elderly person's financial situation, such as sudden debts or unpaid bills.
To help protect your clients from elder abuse, there are several steps you can take:
Stay in regular contact with your clients. This will help you to stay informed about their financial situation and to identify any changes that may be cause for concern.
Be aware of the signs of elder abuse. If you notice any unusual activity in your client's accounts or if you have concerns about the well-being of an elderly client, it's important to take action.
Work with other professionals. If you have concerns about a client, consider reaching out to other professionals, such as lawyers or social workers, for guidance on how to proceed.
Educate your clients about the dangers of elder abuse. Help your clients to develop strategies for protecting themselves, such as setting up a power of attorney (if they have capacity) or working with a trusted family member or friend.
By taking these steps, financial advisors can play a critical role in protecting their elderly clients from financial elder abuse. If you have any questions or would like to discuss how I can assist, please don't hesitate to contact me.
Successful Review of Guardianship and Administration Decision in Western Australia
We recently acted for the applicants in a review of a decision made under the Guardianship and Administration Act 1990 (WA). You can read the full decision here.
The applicants, MD and DM, applied for a review of a decision made by a single member of the Tribunal, Member Conley, on 6 September 2022.
In the original decision, Member Conley declared that the represented person (NA) was unable to make reasonable judgments in respect of matters relating to her estate, person, and health and safety, and therefore needed an administrator of her estate and a guardian. The Tribunal then made orders revoking the enduring powers of attorney and guardianship in place and appointed the Public Trustee as plenary administrator and the Public Advocate as limited guardian.
On our clients behalf, we then applied for a review by the Full Tribunal.
After reviewing the case, the Full Tribunal decided to revoke the original orders and reinstate the enduring power of guardianship and power of attorney in favour of MD and DM.
In relation to guardianship, the Full Tribunal found that NA was unable to make decisions regarding her own health and safety and needed oversight, care, and control. However, the Full Tribunal also found that a less restrictive means was available in the form of an enduring power of guardianship (EPG) previously made by the individual. As a result, the Full Tribunal revoked the orders appointing a limited guardian and reinstated the EPG, naming two of the individual's daughters as joint guardians.
In relation to administration, the Full Tribunal found that NA’s vascular dementia rendered her unable to make reasonable judgments in relation to matters concerning her estate, but that the appointment of an administrator was not necessary as the less restrictive option of the enduring power of attorney in favour of MD and DM was available.
We are proud to have been able to assist MD and DM. A job well-done by Isaac Priddis, who appeared for our clients at the hearing.
If you would like to hire a lawyer to act on your behalf in a guardianship matter, please don't hesitate to contact me. I would be happy to discuss your options and how I can assist you.
I acted in 30 separate such matters in 2022 alone and offer a specialist service.
Guardianship Specialty: Protecting Loved Ones with Dementia
One of my 3 specialities is GUARDIANSHIP.
I often encounter clients who are seeking guardianship for loved ones suffering from dementia.
Dementia refers to a decline in cognitive function, which includes memory, language, problem-solving, and decision-making abilities. It can be caused by various conditions, such as Alzheimer's disease, stroke, or brain injury.
In the context of guardianship applications, the State Administrative Tribunal of Western Australia considers whether an individual has dementia when determining whether they are capable of making decisions about their own care and welfare.
If the Tribunal determines that an individual lacks capacity due to dementia, a guardian may be appointed to make decisions on their behalf.
Dementia is a progressive condition, meaning it will get worse over time. As such, it's important to plan for the future and ensure that appropriate guardianship arrangements are in place to ensure the best possible care for loved ones suffering from dementia.
If you or someone you know is seeking guardianship for a loved one suffering from dementia, don't hesitate to reach out. I've dealt with 100s of these matters over the years and offer a comprehensive service.
Protecting Individuals with Dementia from Financial Abuse
Dementia can have a significant impact on financial decision making, including:
- Struggling to understand financial concepts
- Difficulty remembering important financial information
- Inability to manage money effectively
These challenges can lead to financial abuse and exploitation, as well as financial instability for the individual and their family.
To protect individuals with dementia, the Guardianship and Administration Act 1990 (WA) offers administration orders. These orders appoint a guardian or administrator to manage the financial affairs of an individual with dementia and provide necessary support and oversight.
It is important to note that administration orders should be considered as a last resort, as they do limit an individual's autonomy and decision-making capacity. However, in cases where an individual with dementia is at risk of financial abuse or is unable to manage their own finances, an administration order can provide much-needed protection and support.
As a specialist in guardianship and administration in the State Administrative Tribunal of Western Australia, I have acted in 30 different cases related to this area of law in 2022 (and counting).
With an ageing population, families may become more aware of the financial exploitation risks associated with dementia during times like the Christmas season.
If you or a loved one are dealing with dementia and financial decision making, I am here to help. I offer a comprehensive service and deeply care about the needs of my clients when they apply for guardianship and administration orders over family members. Do not hesitate to reach out for assistance.
New Technology for Diagnosing Alzheimer's Disease
As a lawyer who works on guardianship applications in the State Administrative Tribunal of WA every day, I spend much of my time reading medical reports.
These are relied on by the Tribunal to whether the presumption of capacity is rebutted in an individual case.
Will be intriguing to see this new technology for diagnosing Alzheimer’s in action.
Hopefully it brings more certainty, when it comes to determining if (and crucially, when) there is a need for a guardianship order to be made after a family member begins displaying symptoms.
Click here to read the full article.
Increase in Guardianship Applications at the State Administrative Tribunal of Western Australia
As a lawyer who practices in guardianship at the State Administrative Tribunal of Western Australia (SAT), I see first-hand the important role guardianship plays in protecting the rights and interests of individuals who are unable to make decisions for themselves due to disability, illness, or injury.
According to data from the SAT's annual reports, the number of guardianship applications lodged with the SAT has significantly increased over the past 5 years.
Here's a breakdown of the number of guardianship applications received by the SAT each year:
Year | Number of Guardianship applications
2018 - 3,864
2019 - 3,938
2020 - 4,903
2021 - 5,061
2022 - 5,602
There has been an overall 45.97% increase in guardianship applications between 2018 and 2022.
If you or someone you know is in need of guardianship assistance, I highly recommend looking at the SAT's website for information and support. The SAT website has a wealth of resources to help navigate the process.
If you would like to hire a lawyer to act on your behalf in a guardianship matter, please don't hesitate to contact me. I would be happy to discuss your options and how I can assist you.
I acted in 30 separate such matters in 2022 alone and offer a specialist service.
Role of Public Advocate at guardianship hearings
The Public Advocate of Western Australia has an important role when it comes to attending and preparing reports for guardianship hearings.
The Public Advocate has a wide range of powers and functions, including investigating complaints about guardianship arrangements, providing advice to the Minister for Disability Services on guardianship matters, and promoting awareness of guardianship issues.
The Office of the Public Advocate also provides support and advice to guardians and interested persons on guardianship matters.
Often, the State Administrative Tribunal of Western Australia will make an order for the Public Advocate to do an investigation and prepare a report in advance of a guardianship hearing.
Typically, the specific orders made by the Tribunal include:
The application is referred to the Public Advocate pursuant to s 97(1) of the Guardianship and Administration Act 1990 (WA) for investigation and report to the Tribunal prior to the hearing on the following: (a) whether the proposed represented person is in need of an administrator; (b) if an administration order is to be made, who would be suitable and willing to be appointed; (c) what are the views and wishes of the proposed represented person regarding the issues arising in this proceeding; and (d) all other matters the Public Advocate considers relevant.
The Public Advocate is requested to attend the hearing to advance the best interests of the proposed represented person.
The Tribunal will provide to the Public Advocate a copy of all documents received by the Tribunal for the purposes of this proceeding.
The Public Advocate is at liberty to apply pursuant to s 35 of the State Administrative Tribunal Act 2004 (WA) for orders for the production of documents relevant to her investigation.
The Public Advocate is at liberty to apply for the hearing to be brought forward to an earlier date should this be considered necessary in the best interests of the proposed represented person.
On behalf of my clients, when this occurs, I liaise with staff at the Office of the Public Advocate in the lead-up to the hearing.
Guardianship in Western Australia
As people age, they may need help with their finances, medical care, and everyday decision-making. In some cases, elderly people may be unable to take care of themselves at all. When this happens, guardianship can provide much-needed assistance and protection.
In Western Australia, the Guardianship and Administration Act 1990 sets out the legal framework for guardianship. The Act provides for the appointment of a guardian to make decisions on behalf of a person who is unable to make decisions for themselves.
A guardian can be appointed by the State Administrative Tribunal of Western Australia. The guardian must act in the best interests of the person they are looking after.
The types of decisions that a guardian can make include decisions about:
- where the person will live
- what medical treatment the person will receive
- what education or training the person will receive
- what work the person will do
- what leisure activities the person will take part in.
Additionally, an administrator (which is different to a guardian) can make financial decisions on behalf of the person. This may include deciding how the person's money will be spent, and managing their bank accounts and other assets.
The role of a guardian includes to protect their rights and interests.
Guardianship can be interim or permanent, depending on the needs of the person involved.
If you are concerned about an elderly person who may be unable to take care of themselves, you can apply for a guardianship order. You will need to provide evidence to the court that the person is unable to make decisions for themselves and that they would benefit from having a guardian.
The court will appoint a guardian after considering all of the relevant factors, including the views of the person involved.
If you are concerned about someone who you think may need a guardian, I can help by providing legal advice.
I have considerable experience in applying for and managing guardianship orders, and can help you navigate the process. Please contact me to discuss your situation.
Costs awarded in SAT guardianship application in favour of my clients
My clients were awarded costs in a guardianship application. The costs were payable to them by the Applicant (who was a family member they were opposed to in the application).
This was rare.
Costs are rarely awarded in guardianship anyway. When they are awarded, it is more common for costs to come from the estate of the Represented Person, rather than from a family member who you are opposed to in the application.
The decision is here.
The main proceedings
The substantive application was for a review of a guardianship order previously made by the SAT, as well as an application for the appointment of an Administrator of the Represented Person’s estate.
The Tribunal refused to grant the applications.
My clients made an application for their costs incurred in responding to the proceedings.
Application for an extension of time
The Applicant objected to my client’s application at first instance as it was made more than 21 days (24 days) after the orders to which the application related.
Rule 42A of the SAT Rules prescribes the 21-day requirement.
In my submissions, however, I drew the Member’s attention to the operation of rule 46 of the SAT Rules.
Rule 46 relevantly provides that the SAT retains a discretion to waive non-compliance with requirements arising under the rules.
This, read in tandem with the objectives set out under s 9 of the SAT Act, as well as the relatively minor delay and the existence of extenuating circumstances, meant the Tribunal granted an extension of time. Only a few days extension was required.
Costs applications generally in SAT
Section 87 (1) of the SAT Act provides that parties ordinarily bear their own costs, subject to an order of the Tribunal to the contrary.
Section 16 of the Guardianship and Administration Act (GA Act) deals with costs in relation to proceedings commenced under the GA Act. Section 16 (5) of the GA Act provides that nothing in the GA Act limits any power exercisable by the SAT under the SAT Act.
Consequently, the SAT retains considerable discretion in the determination of whether costs ought to be paid, conferred by s 87 (2) of the SAT Act.
The key issue in the application was whether the proceedings were commenced or continued unreasonably.
In the Tribunal’s reasons it was noted that there were plain deficiencies in the Applicant’s case.
The Tribunal at [54] affirmed the position that a weak case alone is not sufficient to warrant an adverse costs order.
However, the Member pointed out a variety of circumstances, raised in my client’s submissions, that enlivened the Tribunal’s discretion to award costs pursuant to s 87 (2) of the SAT Act.
Delay, Irrelevance and Improper Purpose
Prior to the substantive review hearing, the Applicant was late in providing its material to the Tribunal.
At the hearing it was clear to the Member that the Applicant had potentially misconceived the nature and purpose of the proceedings.
The Applicant focused heavily on scrutinising a report of a delegate of the Public Advocate and cross-examining my client on issues irrelevant to the dispute.
The delay ultimately led to a prolongment of the matter as the Tribunal did not have time to hear from the other parties and required written submissions to be filed as a result of running out of time.
At [50] – [51] the Tribunal referred to the potential that the review application was brought for an improper purpose to influence the discretion of the Public Advocate. Additionally, the Tribunal in its reasons pointed out that the Applicant and its Counsel were advised at the original directions hearing as to the role SAT plays in relation to the dispute before it.
Therefore, the delay and conduct of the Applicant following such directions from the Tribunal (in pressing ahead with its scrutiny of the Public Advocate’s report and its cross-examination of my client), was considered to be unreasonable conduct.
For the above reasons, the Tribunal awarded costs to my clients in the sum of $7,000.