AA

[2025] WASAT 2

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   AA [2025] WASAT 2

MEMBER:   MS V HAIGH, MEMBER

HEARD:   30 OCTOBER AND 1 NOVEMBER 2024

DELIVERED          :   3 JANUARY 2025

FILE NO/S:   GAA 3770 of 2023

GAA 4202 of 2024

GAA 4816 of 2023

AA

Represented Person

S1

Applicant

Catchwords:

Guardianship - Administration - Enduring power of attorney - Enduring power of guardianship - Property transfers to enduring attorneys by the donor

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 44(2), s 44(5), s 64(1)(a), s 64(1)(b), s 65, s 107, s 109(1)(c), s 110E, s 110H(a), s 110N
State Administrative Tribunal Act 2004 (WA), s 32(2)

Result:

Public Trustee appointed plenary administrator
Office of the Public Advocate appointed limited guardian
Enduring Power of Attorney and Enduring Power of Guardianship revoked

Category:    B

Representation:

Counsel:

Represented Person	:	By video-link
Applicant	:	Mr R Graham

Solicitors:

Represented Person	:	N/A
Applicant	:	Graham & Associates Lawyers

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Background

1. This is the tale of a prodigal son[1] whose relationship with his 92­year-old mother was rekindled at a time when he was on the cusp of losing his fortune.  The tale involves a family with decades of unresolved grievances, and a large property portfolio amassed over decades by the matriarch and patriarch, AA and AB. 

   [1] ts 174, 1 November 2024; Mr Graham's submission.

2. AA and AB's three sons are S1, S2 and S3.

3. AA is widowed; her husband having passed away in 2007.  She lives with S3, who has lived with her for many years.  AA is suffering from a chronic cognitive impairment, most likely Alzheimer's dementia.

4. Before her husband's death, AA made a will in 1991 giving all of her estate to her husband.  In the event of her husband predeceasing her she gave all of her estate to S2 and S3 as tenants in common in equal shares.  S1 was not a beneficiary.  Her will states '[b]ecause of the lack of respect shown to me and my husband by my son [S1] and his wife I have omitted him as a beneficiary in this my Will'.[2]

   [2] Hearing Book (HB), pages 451 - 453.

5. Following the death of her husband AA made another will in 2013, giving all of her estate to S2 and S3 as tenants in common in equal shares.  AA excluded S1 from any bequest stating 'I have intentionally made no provision in this my will for my other son [S1] because of his lack of his [sic] respect for me and my late husband over many years since the date of his marriage including the lack of contact with me and my late husband over that period of time and his failure to show any concern or any regard for our welfare in any way and in my belief that I have therefore no moral obligation to make any provision for him and further in my belief that he has sufficient assets of his own to not require any provision to be made by me for him in this my Will'.[3]

   [3] HB, pages 454 - 458.

6. On 4 October 2021 AA appointed S2 and S3 to be her joint enduring guardians and her joint and several enduring attorneys.[4]

   [4] EPG, HB, pages 914 - 918, EPA, HB, pages 919 - 920.

7. In mid-2022, AA and S1's relationship was rekindled after a long period of limited contact between them from 2007 to 2022.  For a period of several months in 2022 AA had extensive contact with S1 and his family.  Just as in the biblical story of the prodigal son, the rekindling of his relationship with his parent, causes great concern to his siblings.

8. There are differing versions of who initiated the contact.

9. S1 says that in mid-2022 his mother contacted him out of the blue 'desperately want[ing] to see him'.[5]

   [5] Statement of S1 dated 1 December 2023, HB, pages 707 - 733 at HB, page 719.

10. S2 and S3 are of the view that S1 rekindled his relationship with their mother for financial gain, at a time when his business interests were failing,[6] and because S1 wants a share of their mother's estate.[7]  S1 refutes this and says, 'this whole matter is not about money … it's about my mother's well-being'.[8]  It is not in dispute that in April 2024, S1's company went into liquidation.[9]

    [6] Amended Affidavit of S3 dated 28 October 2024, paragraphs 77 - 91, 112 - 113, 131 - 136.

    [7] Amended Affidavit of S2 dated 28 October 2024, paragraph 34.

    [8] ts 56, 30 October 2024.

    [9] HB, page 463.

11. S1 says that in late 2022 he and his family were abruptly cut off from seeing his mother.[10]  He attributes this to his brothers.[11]  S1W (S1's wife) says that whenever they did reach AA she lamented being cut off from them.[12]

    [10] Statement of S1 dated 1 December 2023, at HB, pages 723 - 724.

    [11] Statement of S1 dated 1 December 2023, at HB, pages 707 - 733; Application, HB, pages 1 - 6.

    [12] Witness statement of S1W dated 1 December 2023, HB, pages 680 - 706 and page 694.

12. On 28 April 2023 AA transferred her substantial interest in eight of her properties to S2 and S3 for 'natural love and affection'.  AA received no monetary gain for the reduction in her ownership in the properties, and according to duty certificates the interest transferred was 65 - 66%.  She retains a proportional share in the properties.

13. The relationship between S1 and his two brothers is acrimonious.

14. There is a litany of allegations of wrongdoing on both sides, spanning decades, that are documented chapter and verse in the materials submitted by the parties.  Broadly speaking each allegation is met with a denial.  It is not necessary for me to make findings about the truth or otherwise of many of these allegations, which have consumed the three brothers.  Nor do I propose to outline the many allegations of wrongdoing.  It suffices to say there are a multitude of unresolved grievances within this family.  I have referred to only some of the allegations in this decision, to give a flavour of their nature.  In particular I refer to the allegations made by S1 as they form the basis of his application to the Tribunal. 

15. I have been cautious in accepting the evidence of the three brothers and S1W (S1's wife) and have only been able to make findings with any confidence when their evidence is corroborated by, or consistent with, the contemporaneous documentary evidence, because I consider that their evidence is, in differing degrees, tainted by self interest and acrimony.

S1's allegations

1. S1 alleges that his mother is being financially abused by S2 and S3 (by transferring her properties into the names of S2 and S3 in a questionable manner).  S1 alleges that his mother is the subject of elder abuse by S2 and S3.  This includes physical abuse, medicating her for compliance, her lack of access to a geriatrician, preventing her from having access to him (S1) and other family members, cutting off her care provider in May 2023 (allegedly because S1 was too familiar with them), subjecting her to controlling behaviours such as redirecting and cutting off her phone and installing surveillance devices inside the home to monitor her movements and conversations.[13]

   [13] Application, HB, pages 97 1- 976, Witness statement of S1; HB, pages 707 - 733.

2. S1's allegations are vehemently denied by S2 and S3 who say they are false, offensive and insulting.  Their detailed responses are set out at length in their written statements and affidavits.[14]

   [14] S3's witness statement dated 4 December 2023, paragraph 3, pages 642 - 648 HB and his Amended Affidavit dated 28 October 2024, pages 390 - 608, para 2; S2's witness statement dated 4 December 2023, HB pages 636 - 640 and his Amended Affidavit dated 28 October 2024; HB, pages 609 - 628.

The application for a family violence restraining order

1. After the commencement of these proceedings, S3, in his capacity as his mother's joint enduring guardian, made an application for a family violence restraining order (FVRO) in late September 2023 to protect AA from S1 and S1W, following an incident when S1W and her children visited AA on 16 September 2023.[15]  S3 instructed a lawyer, Lawyer 1 in respect of the FVRO proceedings.  S3's application has been adjourned pending the outcome of these Tribunal proceedings (in particular a determination in respect of the EPG).

   [15] HB, pages 735 - 738.

The defamation proceedings

1. In February 2024 S2 and S3 commenced defamation proceedings in the Supreme Court in relation to representations made by S1W, about them, to another family member.  Lawyer 2 is acting for them in respect of those defamation proceedings.[16]

   [16] S3's Amended Affidavit dated 28 October 2024, paragraph 41, HB, page 397.

The applications

1. This matter concerns three applications under the Guardianship and Administration Act 1990 (WA) (GA Act) brought by S1 in respect of his mother.

2. Firstly, an application made pursuant to s 109(1)(c) for revocation of an enduring power of attorney.[17]

   [17] GAA 3770 of 2023.

3. Secondly, by orders of the Tribunal the proceeding pursuant to s 109(1)(c) is also taken to have been commenced under s 40 for the appointment of a guardian and administrator.[18]

   [18] GAA 4816 of 2023.

4. Thirdly, an application pursuant to s 110N for revocation of an enduring power of guardianship.[19]

   [19] GAA 4202 of 2024.

5. Those are the three applications I must decide.

Proceedings before the Tribunal

1. S1's application was lodged on 21 August 2023.  The proceedings have been protracted for a number of reasons, primarily to allow AA to be reviewed by a geriatrician for the purposes of assessing her capacity, which at the early stages of these proceedings was contested.  The report of the Office of the Public Advocate (OPA) investigator (tasked with advocating for what is in AA's best interests) gave rise to serious concerns about AA's capacity, and it was the investigator's recommendation that AA's cognition be assessed by a geriatrician.[20]  The parties agreed that AA be reviewed by a geriatrician which review took place on 13 June 2024.  Following that assessment a date was set for the hearing based on the availability of the parties and the Tribunal.

   [20] OPA report filed 29 November 2023, pages 47 - 60.

2. The matter has been to several directions hearings prior to the final hearing.

3. At the commencement of the proceedings, AA, S2 and S3, were all represented by Lawyer 1.

4. On 24 October 2023, and following a directions hearing for the purposes of raising this issue with Lawyer 1, Lawyer 1 filed a notice of ceasing to act on behalf of S2 and S3 and from 3 November 2023 S2 and S3 were represented by Lawyer 2.  From 7 October 2024 S2 and S3 were represented by Lawyer 3.

5. On 5 December 2023, s 65 orders were made appointing the Public Trustee as the plenary administrator of AA's estate pending the final hearing of this matter, in order to preserve AA's estate.

6. On 6 October 2024 S1's legal representative sought a summons for Lawyer 1 to appear as a witness, which summons was issued by the Tribunal.  On 21 October 2024 Lawyer 1 filed a Notice of Ceasing to Act (for AA), and on 29 October 2024 Lawyer 1 filed an affidavit setting out his evidence.

7. The hearing of this matter was on 30 October and 1 November 2024.  AA was in attendance at the outset of the hearing, and expressed the wish, through an interpreter, that she did not want to participate in the hearing, and I excused her attendance.  At the hearing oral evidence was given by S1, S1W, S2 and S3, Lawyer 1 and the investigator from OPA.  S1 was legally represented at the hearing.  S2 and S3 were legally represented at the hearing by counsel instructed by Lawyer 3.  AA was unrepresented at the hearing.

8. In addition to the oral evidence I have also considered all of the documentary evidence on the Tribunal file, relevant parts of which I have referred to throughout my decision, and which were included in a three volume hearing book.[21]  I also had regard to Lawyer 1's affidavit dated 29 October 2024 filed the day prior to the hearing, and chronologies in respect of the medical evidence filed by the legal representatives of S1, S2 and S3 after the conclusion of the hearing.

   [21] Three Volume Hearing Book comprising 1002 pages.

9. For the reasons that follow I have decided to revoke the enduring power of attorney (EPA) and the enduring power of guardianship (EPG) and appoint the Office of the Public Advocate as AA's limited guardian with responsibility for making decisions about her accommodation, treatment, services, contact, and as her legal next friend and the Public Trustee as her plenary administrator both for a period of five years.

Principles to be observed

1. In determining these matters, I must have regard to the principles set out in s 4 of the GA Act which provide that:

   (1)My primary concern must be the best interests of the proposed represented person.

   (2)The proposed represented person is presumed to be capable of looking after their own health and safety, making reasonable judgments in respect of matters relating to their person, managing their own affairs and making reasonable judgments in respect of matters relating to their estate until the contrary is proven to the satisfaction of the Tribunal.

   (3)A guardianship/administration order must not be made if the needs of the proposed represented person could be met by other means less restrictive of their freedom of decision and action.

   (4)Where an order is made, it must be in terms that impose the least restrictions on the proposed represented person's freedom of decision and action.

   (5)I must seek to ascertain the views and wishes of the proposed represented person.

The issues

1. The issues I must determine are:

   Issue 1:      Is AA capable of making reasonable judgments in respect of her estate and her person?

   Issue 2: If the answer to Issue 1 is no, does AA need an administrator or is there a less restrictive alternative to the appointment of an Administrator? Specifically does the EPA exist as a less restrictive alternative to the making of an administration order? If not, should the EPA be revoked or varied under s 109(1)(c).

   Issue 3:      If AA needs an administrator who should be appointed?

   Issue 4: If the answer to Issue 1 is no, does AA need a guardian or is there a less restrictive alternative to the appointment of a guardian? Specifically does the EPG exist as a less restrictive alternative to the making of a guardianship order? And if not, should the EPG be revoked or varied under s 110N?

   Issue 5:      If AA needs a guardian who should be appointed?

   Issue 6:      If guardianship and administration orders are made, how long should the orders run before they must be reviewed by the Tribunal?

Issue 1:  Is AA capable of making reasonable judgments in respect of her estate and her person?

1. Before appointing a guardian I must be satisfied that AA has attained the age of 18 years[22] and is:

   (a)incapable of looking after her own health and safety; or

   (b)unable to make reasonable judgments in respect of matters relating to her person; or

   (c)in need of oversight, care or control in the interests of her own health and safety or for the protection of others.[23]

   [22] GA Act, s 43(1)(a).

   [23] GA Act, s 43(1)(b).

2. Before appointing an administrator, I must be satisfied that AA is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all or any part of her estate.[24]

   [24] GA Act, s 64(1)(a).

3. Whilst the issue of AA's capacity was in dispute at the commencement of these proceedings, following a review by geriatrician 1 in June 2024, the parties are in agreement that AA does not have capacity to make decisions regarding her estate or personal welfare.  AA had earlier expressed the view to the OPA investigator that she does have capacity to make her own decisions.[25]  However the weight of the evidence is to the contrary.

   [25] HB, pages 47 - 60.

4. In the circumstances I will not dwell on what is not contentious.

5. In so far as there is capacity evidence at earlier points in time (for example at the time AA executed her EPA/EPG and made the property transfers in April 2023) I will deal with that evidence later in my decision.

Geriatrician 1 (consultant physician in rehabilitation and aged care)

1. Geriatrician 1 provided a report dated 20 June 2024[26] following a consultation with AA on 13 June 2024, indicating that AA was accompanied to the appointment by S2 and S3 who provided her with support, assisted in communications between him and AA (interpretation and explanation), provided information on behalf of AA and acted as substitute decision-makers giving informed consent to proposed treatment.

   [26] HB, pages 316 - 321.

2. On the basis of geriatrician 1's report, I am satisfied and I find that AA has a mental disability likely Alzheimers dementia and that it is progressive. 

3. In his report geriatrician 1 has expressed the view, which I accept, that AA is incapable of making reasonable decisions in relation to simple financial matters (such as managing a budget, paying accounts, purchasing essential items) and complex financial matters (such as managing property or large sums of money, purchasing or selling  significant assets, pursuing entitlements including income and superannuation, advocating for her own interests with financial institutions), and legal matters and I make those findings. 

4. Further, geriatrician 1 has expressed the view, which I accept, that AA is incapable of making reasonable decisions in relation to medical treatment and procedures, accommodation, and services and I find accordingly.  Further geriatrician 1 has expressed the view, which I accept, that AA does not have the cognitive capacity to execute an EPA, an EPG or an advanced health directive and I find accordingly.  In geriatrician 1's opinion, which I accept, AA does not have the capacity to vote and I so find. 

5. In his report geriatrician 1 refers to his letter to general practitioner 1 (GP1) dated 13 June 2024.[27]  In his letter to GP1, geriatrician 1 states that AA has a cognitive impairment, likely emerging dementia and I make that finding.  Geriatrician 1 states that on 13 June 2024 AA scored 19/30 on her Mini Mental State Examination (MMSE) and 15/30 on the Rowland Universal Dementia Assessment Scale (RUDAS), commenting that the latter is a more appropriate test for her.  In his letter he stated that AA 'did seem to have a broad understanding of her ownership of the house, which bank her finances are in and that S2 pays her bills mostly by direct debit.  She knows S3 pays his own bill separately.  She has no pension or superannuation and is self­funded and has a broad understanding of what her bills are'.  He stated that 'obviously, it is complicated by cultural factors and the fact the Public Trustee is now managing her accounts'.  He concluded by saying that in his assessment AA has a chronic cognitive impairment most likely on the basis of the dementia and I make that finding.

Conclusions on capacity

[27] HB, pages 323 - 325.

1. On the basis of geriatrician 1's report, I find that AA has a chronic cognitive impairment most likely Alzheimer's dementia.

2. Further, on the basis of geriatrician 1's report I am satisfied and I find that AA is incapable of looking after her own health and safety; unable to make reasonable judgments in respect of matters relating to her person; and in need of oversight care or control in the interests of her own health and safety.  I find that AA is a person for whom I can appoint a guardian as the presumption of capacity is rebutted and she is over the age of 18, now being 92 years of age.

3. Further, I am satisfied and I find that by reason of this mental disability AA is unable to make reasonable judgments in respect of matters relating to all of her estate.  I find that AA is a person for whom I can appoint an administrator as the presumption of capacity is rebutted.

Issue 2: Does AA need an administrator or is there a less restrictive alternative to the appointment of an administrator? Specifically does the EPA exist as a less restrictive alternative to the making of an administration order? If not, should the EPA be revoked or varied under s 109(1)(c)

1. Before appointing an administrator, I must be satisfied that AA is in need of an administrator of her estate.[28]

   [28] GA Act, s 64(1)(b).

2. I turn firstly to consider the nature of AA's estate.

Nature of AA's estate

1. AA's estate is complex, the details of which are set out in the Public Trustee's report,[29] the contents of which I accept.  For privacy reasons I now provide only an outline of her estate to convey something of its complexity.

   [29] HB, pages 36 - 46.

2. According to the Public Trustee's report AA does not receive a pension.  In addition to holding a number of accounts including a business transaction account which manages rental income and the expenses of a partnership, she also has substantial shareholdings, and owns a vehicle.  The Public Trustee has noted that in respect of the partnership, there appear to be some intermingling of personal and business funds as rental income is paid to AA's personal account.  The Public Trustee in their report assumed that AA is the sole remaining partner of this partnership, and that legal advice would need to be taken in respect of the dissolution of the partnership, if she is found to be incapable.  It is submitted on behalf of S2 and S3 that there is no partnership, and that AA is a sole trader.[30]  This submission appears at odds with the profit and loss statements of the partnership submitted to the Tribunal by S2 and S3.[31]

   [30] ts 197, 1 November 2024.

   [31] For the years 2022, 2023 and 2024.

3. AA currently owns eight properties comprising residential and commercial properties all of which, excepting the property where she resides with S3, are rented out.  The properties are leased and managed by a real estate agent.[32]

   [32] Public Trustee report, HB, pages 36 - 46.

4. S2 and S3 have advised the Public Trustee that the rental income and associated property outgoings and expenses belong to AA and there is no proportional share despite proportional property ownership.[33]

   [33] Public Trustee report, HB, pages 36 - 46.

5. Given the complexity of AA's estate, there is a need for a substitute decision-maker. 

6. The key question is whether the EPA is a less restrictive alternative to the appointment of an administrator.

The EPA

1. AA executed an EPA on 4 October 2021 appointing S2 and S3 as her joint and several attorneys.  The EPA was prepared by Lawyer 1.[34]

   [34] HB, pages 919 - 920.

2. At clause 4 AA has chosen, by striking out the alternative clause 4(b), that her EPA will continue in force notwithstanding her subsequent legal incapacity.  By this election, the EPA is in force and according to its terms is an unrestricted power and authorises the attorneys to do anything AA could do by an attorney.  The EPA was witnessed by Lawyer 1 and S2's partner and accepted by S2 and S3.  It states that it was interpreted to AA in [language] by Lawyer 1.

3. The EPA was lodged at Landgate, but S2 and S3 say it has not been used.[35]

AA's capacity at time of execution of the EPA/EPG

[35] HB, page 652; HB, page 47.

1. In this section I will deal with AA's capacity in so far as it relates to both the EPA and the EPG, those two documents having been executed on the same day.

2. GP1 assessed AA's capacity on 12 April 2021, for the purposes of her executing an EPA and an EPG.[36]  On a MMSE undertaken on 12 April 2021 AA scored 29/30, which I understand is within the normal range of cognitive functioning.  GP1 provided a medical certificate dated 12 April 2021 stating that AA had mental capacity.[37]

   [36] HB, pages 341 - 350.

   [37] HB, page 624.

3. There was a lapse of approximately six months prior to the EPA/EPG being executed.  There is no medical or other evidence that AA's capacity diminished between 12 April 2021 and the execution of the EPA/EPG on 4 October 2021.  Nor does it appear to be contended by the parties that AA lacked capacity at the time she executed the EPA/EPG.

4. Lawyer 1 gave evidence, which I accept, that on the day of execution of the EPA/EPG AA appeared to be just as capable as she was when he met with her and took instructions from her on 30 March 2021, that is, he did not have any concerns about her capacity.[38]  The email exchange between Lawyer 1 and S2 on 30 and 31 March 2021[39] references the meeting on 30 March 2021 with the subject line 'EPA/EPG/life estate' and I infer from that email and Lawyer 1's affidavit that he took instructions from AA in respect of, inter alia, the EPA and EPG, those documents having been ultimately prepared and executed approximately six months later. 

   [38] Lawyer 1's Affidavit dated 29 October 2024, paragraphs 15 and 30.

   [39] HB, pages 622 - 623.

5. I reject S1W's evidence that AA's cognition was declining from 2007[40] (that being the year AB died).  Her evidence is at odds with the other witnesses and the documentary evidence, where cognitive decline was first observed in 2022.  I accept S1W's evidence that she only had one visit with AA in 2021, in March 2021, and she did not observe any difficulties with AA's cognition at that time.[41]

Conclusions about the execution of the EPA

[40] Witness statement of S1W dated 1 December 2023, HB, pages 680 - 706.

[41] ts 64 - 65, 30 October 2024.

1. On the basis of the evidence, I am satisfied and I find that AA had capacity to execute the EPA/EPG on 4 October 2021. 

2. Further I am satisfied, and I find that the EPA meets the formalities of form and witnessing in s 104 of the GA Act.

3. In considering whether the EPA is a less restrictive alternative to the appointment of an administrator I have had regard to the nature of AA's estate (outlined above), the circumstances of the 2023 property transfers, and the use of AA's credit card by S2 and S3.

The circumstances of the 2023 transfers

1. On the basis of the Public Trustee's report, and the transfers of land,[42] I find that AA transferred her interest in eight of her properties into the current ownership proportions on 28 April 2023 for no consideration but for 'natural love and affection' meaning that AA received no monetary gain for her reduction of ownership in the properties.  According to duty certificates her interest transferred was 65 to 66%.

   [42] HB, pages 831 - 911.

2. AA transferred the properties to S2 and S3, signing the transfer paperwork herself and that is not in dispute.

3. The Public Trustee only has copies of seven of the Certificates of Duty totalling $X and thus the true figure of the transfer of all eight properties will be higher.  AA's bank statement shows a withdrawal of approximately $Y, which corresponds with the registration date of the transfers and was according to the Public Trustee, likely withdrawn to make payment of stamp duty incurred to transfer the properties.  There is no dispute about the fact that AA paid the stamp duty on all eight properties, and I make that finding.

4. The Public Trustee's report records[43] that when the Public Trustee queried with S2 and S3 why the properties were transferred into proportional ownership, they advised that in 2003 the properties were jointly owned by their parents and a decision was made to transfer 1% of each property to either S2, S3 or their related entities.  S2 and S3 have told the Public Trustee that this was done for estate planning purposes and in an attempt to reinforce their parents' wishes outlined in their wills.

(a)  The role of S2 and S3 in managing AA's financial affairs

[43] And this is consistent with S2's Witness Statement dated 4 December 2023, see paragraphs 23 - 24.

1. On the evidence before me I am satisfied, and I find that AA was very dependent on S2 and S3 to manage her financial affairs including the 2023 property transfers. 

2. On the basis of evidence, which is not contested, I am satisfied and I find that for many years AA has been assisted in the management of her estate by S3, whose professional background makes him ideally suited to do so,[44] and also S2.

   [44] S3's witness statement dated 4 December 2023, HB, page 647.

3. S2 gave evidence, which I accept, that he has always had his mother's authority to act on her behalf for many years, helping her with her banking, insurance and utility accounts.  He has passwords to all her banking and share market accounts and performs transactions on her behalf at her request.[45] 

(b)  Advice by S2's lawyer/accountant

[45] S2's Amended Affidavit dated 28 October 2024, HB, pages 613 - 614.

1. S2 gave evidence that their mother was concerned about challenges to her will.[46]  S2 gave evidence that his mother asked him to work out how to prevent a challenge.

   [46] ts 103, 30 October 2024.

2. On the basis of S2's evidence, which is consistent with the email from his accountant I find that in or about May 2020, S2 and AA met with S2's lawyer and also S2's accountant to discuss the different options which were to either become joint tenants (with S2 and S3) in the properties, or set up a trust.[47]  

   [47] ts 103 - 105, 30 October 2024.

3. S2 has given evidence that AA's preferred option was the former, and whilst I am cautious about accepting S2's evidence as it serves his self-interest, in my view it can be inferred that this was AA's preferred option for two reasons.

4. Firstly, because the subject of her subsequent meeting with Lawyer 1 on 30 March 2021 was the transfer of seven of her properties.

5. Secondly in the email dated 12 February 2024 from S2's accountant, it states that from his notes of the meeting (with AA and S2's lawyer on 22 May 2020) he could confirm inter alia 'she agreed that dealing with/transferring assets whilst she was alive made perfect sense and would allow her to carry out hers and her late husband's wishes'.  S2's accountant noted that 'the lawyer agreed that he would investigate and action the above strategy'.[48]

(c)  Involvement of Lawyer 1

[48] HB, page 628.

1. I note here that Lawyer 1 is regarded as the family's lawyer, acting variously for AA, S2 and S3 over time. 

2. It is submitted on behalf of S2 and S3 that AA had independent legal advice from Lawyer 1 in respect of the 2023 property transfers.[49]

   [49] ts 194, 1 November 2024.

3. S3 gave evidence, which I accept, that in late 2012, his mother asked him to attend a meeting with her and her lawyer (Lawyer 4) to update her will, and that when they explained the split in the family Lawyer 4 advised them to form a trust or own property as joint tenants to avoid the will being challenged by S1.[50]  However the transfer of the properties did not take place until April 2023.  I consider this to be significant as AA had capacity for most of this time yet did not transfer the properties until April 2023.

   [50] S3's Amended Affidavit dated 28 October 2024, paragraphs 69 - 70, HB, pages 400 - 401.

4. S2's evidence is that in March 2021 his mother asked him to instruct Lawyer 1 to transfer her properties to him and S3 as joint tenants, and I accept that as it is corroborated by the contemporaneous communications between S2 and Lawyer 1.[51]

   [51] S2's Amended Affidavit dated 28 October 2024, HB, page 618.

5. On the basis of the email exchanges between Lawyer 1 and S2 on 30 and 31 March 2021[52] I find that on 30 March 2021 AA met with Lawyer 1 and the subject of that meeting was not only the EPA/EPG but also her 'life estate'.  Those email exchanges refer to the transfer of 'all of the properties with regard to [AA's] interest', and that Lawyer 1 would need to do title searches for seven properties.  On the basis of those email exchanges, I am satisfied and I find that the transfer of at least seven of AA's properties was discussed at the 30 March 2021 meeting.

   [52] HB, pages 622 - 623.

6. On the basis of S2 and S3's evidence and Lawyer 1's evidence I am satisfied and I find that in respect of the property transfers, Lawyer 1 in his capacity as AA's lawyer, liaised with S2 in respect of those transfers.

7. In his affidavit Lawyer 1 has, quite properly, declined to give evidence of AA's instructions, or his advice to her at the 30 March 2021 meeting.  He gave evidence that after the meeting he commenced acting on the instructions he had been given and I accept that evidence. 

8. S2 gave evidence, which I accept, that there were no other lawyers, other than Lawyer 1, involved in the property transfers,[53] and that Lawyer 1 suggested to him that they did not need a lawyer to process the transfers and that this could be done by a settlement agent.[54]  S2's evidence is consistent with the contemporaneous documentary evidence.

   [53] ts 108, 30 October 2024.

   [54] S2's Amended Affidavit dated 28 October 2024, HB, page 619, ts 105 - 106, 108, 30 October 2024.

9. Lawyer 1 gave evidence, which I accept, that for the period from 4 October 2021 (the day the EPA/EPG were executed) to 9 May 2022 he did not receive instructions from AA, and I so find.  Further he gave evidence, which I accept, that for the period between 9 May 2022 to 15 July 2022 he received instructions from AA on a further separate matter, which also involved liaising with S2 and S3.  After July 2022 I accept that Lawyer 1 did not have any further involvement with AA until these proceedings commenced in August 2023, and this is when he became aware of the April 2023 property transfers.

10. In conclusion, on the evidence before me, I am satisfied and I find, that in 2021 AA obtained independent legal advice in relation to the transfers, that is, she obtained legal advice from Lawyer 1 about the transfer of her interest in at least seven of her properties to S2 and S3.  There is no evidence before me as to what that advice was.

11. Notably there is no evidence that AA obtained independent financial advice in respect of the transfers, the only financial advice having been provided to her by S2's accountant. 

(d)  Capacity at the time of the property transactions in April 2023

1. S3, in his affidavit, gave evidence that he observed his mother maintaining good cognition until August 2023, and that as of December 2023 he had 'no doubt' about his mother's cognitive capacity.[55] S2, in his affidavit agreed with this,[56] and in his oral evidence maintained that his mother's cognition began declining in 2023.[57] 

   [55] S3's Amended Affidavit dated 28 October 2024, HB pages 393 - 394.

   [56] S2's Amended Affidavit dated 28 October 2024, HB, page 610.

   [57] ts 101, 30 October 2024.

2. At the hearing S3 changed his evidence.  When I asked S3 when he first observed a decline in his mother's cognitive capacity, he responded that it was around two years ago, in October 2022,[58] which evidence I accept for the following reasons. 

   [58] ts 76 - 78, 30 October 2024.

3. Firstly, and importantly, it is consistent with his reporting during the My Aged Care Assessment on 6 September 2022, that his mother was experiencing short-term memory loss.[59]

   [59] HB, pages 269 - 273.

4. Secondly, it is consistent with S1W and S1's observations of AA's declining cognition when they reconnected in mid-2022.[60]

   [60] Witness statement of S1W dated 1 December 2023 pages 680 - 706, ts 65, and S1's oral evidence that he had doubts about his mother's cognition in 2022; ts 25, 5 December 2023.

5. At the hearing S3 gave credible evidence that he spoke with S2 constantly about their mother's health[61] and that he discussed his concerns about his mother's memory loss with S2 and I make those findings.[62]

   [61] ts 78, 30 October 2024.

   [62] ts 78, 30 October 2024.

6. S2 gave evidence at the hearing that he first observed his mother's declining cognition in late 2023 (short-term memory loss),[63] and that S3 did not share with him any concerns about his mother's cognition, because there were no concerns.[64]  I find S2's evidence to be implausible as he was in almost daily contact with their mother, driving her to appointments and supporting S3 who is their mother's primary carer.[65]

   [63] ts 101, 30 October 2024.

   [64] ts 102 - 103, 30 October 2024.

   [65] S2's Amended affidavit of 28 October 2024, HB page 611.

7. On the basis of the evidence, I am satisfied, and I find that AA's cognition began declining at least by September 2022.

8. Around the time of the property transfers in April 2023, the evidence of AA's cognition is as follows.

25 March 2023

1. GP2 made two referrals to geriatrician 2 on 13 April 2023, one slightly more fulsome than the other, but I will refer to them collectively as the referral.  In the referral GP2 refers to AA's attendance with S3 on 25 March 2023 where issues canvassed included acute confusional state.  He noted recent issues with her capacity and cognitive function.  One example cited details that AA had left home to visit her sister 20 houses away where normally she does not leave home, and concerns that her money and/or jewellery had been stolen.[66]  There is a notation in the medical notes dated 25 March 2023 'A Crisis?', although there is nothing further about what that may mean.[67]

   [66] HB, page 217, 220.

   [67] HB, page 112.

2. I accept S3's compelling oral evidence that at that time (25 March 2023) his mother was confused, distressed, and had not been herself for a few months prior to that date, and was like that for several months afterwards and I make those findings.  When I asked what her memory was like at that time S3 said she had her good days and her bad days, and that her memory had been like that for a few months and was like that for a few months after and I make those findings.  I accept S3's evidence that some days she would be very clear in her memory and on other days she had mood swings and I make those findings.[68]

   [68] ts 80 - 81, 30 October 2024.

3. Given my finding that S3 spoke with S2 constantly about their mother's health I am satisfied, and I find S2 would have known about AA's confused, distressed state and that she was experiencing difficulties with her memory for a few months prior and subsequent to 25 March 2023.

30 March 2023

1. GP2 in his referral also notes AA's MMSE score 25/30 on 30 March 2023.[69]  I understand that a score of 25/30 is indicative of normal cognition.  I accept geriatrician 1's view that a RUDAS assessment rather than a MMSE assessment would be a more reliable indicator of AA's cognition, but there is no RUDAS assessment at this time.  In my view AA's MMSE's results must be seen in the context of her cognition in the preceding months and the months after the assessment.  The results may be reconciled with this evidence as they may simply be indicative of her cognition on a good rather than a bad day.  They are simply a snapshot of her cognition on 30 March 2023.

   [69] HB, page 217.

2. In his referral GP2 mentions a meeting with S1 on 12 March 2023 in which S1 discussed his concerns about his mother's mental state and capacity.  GP2 states 'I also advised that it would be in the best interest for all parties that [AA] be reassessed …'.[70]

   [70] HB, page 220.

3. S1 gave oral evidence that the meeting with GP2 occurred on 12 April 2023 not 12 March 2023 (which he pointed out was a Sunday), and this seems to be consistent with the referral being written the day after the meeting rather than a whole month after the meeting.  S1 says his attendance on GP2 occurred after he went to the police on 6 April 2023, to report his concerns of elder abuse.[71]  In any event, whatever the date of S1's attendance on GP2, the referral provides contemporaneous evidence of S1's concerns about his mother's cognition in the lead up to the property transfers on 28 April 2023.  Importantly S1's concerns and the referral to a geriatrician preceded the 28 April 2023 property transfers. 

   [71] ts 29, 5 December 2023.

4. The scant medical notes on 14 April 2023 refer to functional issues, cognitive decline, capacity, and the EPA/EPG, although there is no more information in the notes about these matters and it is not possible to interpret what is meant by these notations, nor which doctor made the notes (GP2 who she saw periodically or GP1 who was her usual general practitioner (GP)).[72]

Conclusion re capacity 28 April 2023

[72] HB, page 112.

1. It was submitted on behalf of S2 and S3 that there was a continuity of capacity between 12 April 2021 (when AA's capacity was assessed by GP1 and she scored 29/30 on her MMSE and she was certified as having mental capacity)[73] and the MMSE on 30 March 2023 and that the inference arises that AA had capacity on 28 April 2023. [74]

   [73] HB pages 124, 198.

   [74] ts 189, 1 November 2024.

1. I reject that submission.

2. Given that AA had been experiencing confusion for several months prior to the transfers, and had been experiencing difficulties with her memory from September 2022, I am not satisfied that she had the cognitive capacity to understand the long-term consequences of the gifting of such a substantial share in her estate to S2 and S3, and the impact this may have on her own ability to fund her ongoing care.  On the basis of the medical evidence and S3 and S1's evidence I find that the transfers were made at a time when AA was vulnerable.  I am not satisfied that she had the capacity to understand the complexity of those transfers.  Further I am not satisfied that at the time of the transfers, and in the months leading up to the transfers on 28 April 2023, she had the capacity to recall any advice she had been given by Lawyer 1 about the transfers in 2021, nor the capacity to act on it.

3. The magnitude of the transfers made in April 2023 (65-66%) far exceed the modest scale of the transfers that were made in 2003 (1%).  I am not satisfied that AA had capacity at this time to understand the extent to which transfers of this magnitude may impact her ability to financially provide for her ongoing care.

Consideration of the 2023 property transfers

1. In summation AA's reliance on her sons in respect of the 2023 property transfers entailed S2 taking her to see his own lawyer and accountant (in 2020) to give her advice about the transfers, S2 securing the services of Lawyer 1 (in 2021) to provide her with legal advice about the transfers, and S2 liaising with Lawyer 1 in 2021 on her behalf. 

2. It is notable that the property transfers did not take place until April 2023, some two years after the 30 March 2021 meeting with Lawyer 1.

3. On the basis of S3's evidence, I am satisfied, and I find that in early 2023 S2 engaged a settlement agent to prepare the property settlements, and that S2 did so with S3's concurrence.[75]  The engagement of the settlement agent for this purpose is corroborated by the documentary evidence. [76]

   [75] Amended Affidavit of S3 dated 28 October 2024, HB, page 390, ts 83 - 85, 30 October 2024.

   [76] HB, page 831 - 911.

4. However, I am not satisfied that AA asked S2 and S3 to engage someone to do this because of the caution I have already expressed about accepting their evidence in the absence of any contemporaneous documentary corroboration of it. 

5. Even if AA did ask S2 and S3 to engage a settlement agent to transfer the properties, I am not satisfied that she had capacity in 2023, to make reasonable decisions about her estate.  When asked by the investigator on 16 October 2023 whose idea it was to transfer the properties AA said she did not remember, then she said it was her idea.[77]

   [77] OPA report; HB, page 54.

6. My concerns about AA's lack of capacity in 2023 are underscored by the evidence of the investigator, which I accept, that when he interviewed AA on 16 October 2023 AA 'appear[ed] to have little or no memory or understanding of these transactions', and she did not recall signing multiple documents in April 2023.[78]  The investigator reported, and I accept, that AA 'had no memory of signing transfer documents in April 2023 or what the documents she signed were when admitting it was her signature on them'.[79]  When shown the transfers she thought they were something to do with her taxes or water.[80]  When asked why she made the transfers she said she did not know.[81]  I note here that the investigator's interview was carried out in the presence of  Lawyer 1, an interpreter and under surveillance cameras installed in her home.[82] 

The EPA

[78] HB, pages 48, 53.

[79] HB, page 50.

[80] OPA report, HB, page 53.

[81] OPA report, HB, page 53.

[82] HB, page 51, I will address the matter of the surveillance cameras later in my decision.

1. S2 and S3 say that the EPA has not been utilised by them.  In so far as the 2023 property transfers are concerned, I accept their evidence that they did not utilise the EPA as it is self-evident on the face of the transfers.  Notwithstanding that the EPA was not used to transfer the properties in 2023, the relationship between the donor (in this case AA) and donees (in this case S2 and S3) is an agency relationship which is fiduciary in nature.[83]  That fiduciary relationship commenced on 4 October 2021 when the EPA came into force.  The fiduciary is defined as:

   A person who is under an obligation to act in another's best interests to the exclusion of the fiduciary's own interests.  A fiduciary cannot use his or her position, knowledge or opportunity to the fiduciary's own advantage, or have a personal interest in, or inconsistent engagement with, a third party unless fully informed and free consent is given.[84]

   [83] Dal Pont, Powers of Attorney (Third edition), 2020 chapter 1.

   [84] Butterworth's Australian Legal Dictionary (1997) at 471.

2. This means that an attorney cannot make decisions in their own interests unless fully informed consent is given.  In matters where the donor has lost capacity it follows that they have lost the ability to give fully informed consent as they are unable to engage in the cognitive processes required to understand what they are being asked to consent to, weigh up the risks and benefits, and make a good decision for themselves.

3. At the time of the property transfers on 28 April 2023 S2 and S3, who were her enduring attorneys in a fiduciary relationship with their mother, were cognisant of her impaired cognition.  And yet S2 (with S3's concurrence) proceeded to instruct the settlement agent to make the transfers, benefitting themselves to the financial detriment of their mother.  They facilitated the transfer of her substantial interest in her properties cognisant of her impaired cognition.  Further I am satisfied, and I find that AA could not have made these transfers on her own, and that the transfers were to her financial detriment. 

4. On the evidence before me I am satisfied and I find that S2 and S3 did not act with reasonable diligence to protect their mother's financial interests because they facilitated the property transfers, by engaging a settlement agent to effect the transfers.

5. I am satisfied and I find that the motivation for their actions in facilitating these transfers, was to prevent any challenge to AA's will and ensure that S1 does not inherit any part of their mother's estate.[85]  S3 gave evidence that he saw nothing wrong with the property transfers because they were fulfilling their mother's wishes in this regard.  In doing so, they have lost sight of what is in AA's best financial interests while she is living.  Their actions, in facilitating the transfers have been at the cost of AA's own financial security, and to their own benefit. 

Use of credit card by S2 and S3

[85] ts 96 - 97, 103, 30 October 2024.

1. I accept the Public Trustee's observations that several of the transactions on AA's credit card do not appear to them to be for AA's benefit.  When the Public Trustee queried this with S2 and S3, they explained that some expenses were inadvertently charged to their mother's credit card and that they subsequently reimbursed her.  As at the date of the Public Trustee's report they had yet to investigate this to ensure that this reimbursement did indeed occur.

2. The observations of the Public Trustee in relation to S2 and S3's use of their mother's credit card confirm S1's concerns that they use her credit card (relayed to him by AA's sister).[86]  

   [86] HB, page 752.

3. I accept S3's evidence that since the Public Trustee was appointed as AA's administrator on 5 December 2023, he and S2 have opened an account in their name, for their mother's use.[87]  However, this does not allay my significant concerns outlined above, which reflect adversely on their suitability as enduring attorneys for their mother.

Conclusions

[87] S3's Amended Affidavit dated 28 October 2024, paragraph 22.

1. It is proposed on behalf of S2 and S3 that the Public Trustee be appointed as limited administrator to commence or defend litigation, to dispose of any interest in real property and to grant a mortgage or any security over AA's interest in any real property and that the EPA be otherwise varied to exclude those powers.[88]

   [88] ts 121, 1 November 2024; HB, page 426 - 449.

2. It is submitted on behalf of S2 and S3's representative that they understand the need for the Public Trustee to look at the 2023 property transfers and make a decision about what is to happen in respect of those transfers.  They acknowledge that there is a clear conflict between them and AA and that the Public Trustee ought to be appointed with powers to commence litigation in that regard.[89]

   [89] ts 198, 1 November 2024.

3. I reject their proposal for the following reason.

4. Pursuant to s 107 of the GA Act the donees of an EPA shall exercise the EPA with reasonable diligence to protect the interests of the donor, and if they fail to do so, they are liable for any loss occasioned by the failure.

5. Given my findings I do not consider that in respect of the entirety of AA's estate, S2 and S3 will exercise their enduring powers with reasonable diligence to protect the interests of AA.  I am satisfied and I find that they will not act in their mother's best financial interest.

6. For these reasons I am satisfied, and I find that the EPA is not a less restrictive alternative to the appointment of an administrator, and I will therefore revoke it.  This is consistent with the recommendation of the  investigator, and I am satisfied it is in the best interests of AA.

7. Given that AA does not have the capacity to sign a new EPA, and informal assistance is not sufficient, she requires someone to have the legal authority to manage her estate.  I consider that it is AA's best interests for the entirety of her estate to be managed pursuant to an administration order.

8. I am satisfied and I find that there is no less restrictive way for financial and legal decisions to be made in AA's best interests other than by the appointment of an administrator.

Gifting

1. I accept the evidence that AA has been gifting to her grandchildren, and great grandchildren,[90] and consider that a modest gifting provision ought to be made, to enable her to continue with this, should she wish.

Issue 3:  If AA needs an administrator who should be appointed?

[90] ts 31, 5 December 2023.

1. Given my reasons for concluding that the EPA is not a less restrictive alternative to the appointment of an administrator it follows that in the circumstances I do not consider that S2 and S3 are suitable for appointment as their mother's administrator.

2. There are no other nominations.

3. The only alternative is to appoint the Public Trustee as the plenary administrator of AA's estate, to deal with all aspects of AA's estate, in her best interests.

4. A plenary administration order will also give the Public Trustee the power to carry out investigations, and take any legal actions it considers necessary, in respect of the 2023 property transfers. 

Issue 4: Does AA need a guardian or is there a less restrictive alternative to the appointment of a guardian? Specifically does the EPG exist as a less restrictive alternative to the making of a guardianship order? And if not, should the EPG be revoked or varied under s 110N.

1. Before appointing a guardian, I must be satisfied that AA is in need of a guardian.[91]

   [91] GA Act, s 43(1)(c).

2. The key question is whether the EPG is a less restrictive alternative to the appointment of a guardian.

The EPG

1. AA executed an EPG on 4 October 2021 which was drafted by Lawyer 1.[92]  AA appointed S2 and S3 as her joint enduring guardians, authorising them to perform all the functions of an enduring guardian including making all decisions about her healthcare and lifestyle.  The EPG states that they may act in all circumstances unfettered and at their absolute discretion. It was witnessed by Lawyer 1 and by S2's partner and accepted by S2 and S3.  In contrast to the EPA, which was in effect upon execution, the EPG is stated to be in effect when AA is unable to make reasonable judgments in relation to her person.

Conclusions about the validity of the EPG

[92] HB, pages 913 - 918.

1. I am satisfied and I find that the EPG meets the formalities of form and witnessing in s 110E of the GA Act. Further, as I have already found, AA had capacity to execute the EPG on 4 October 2021.

2. Section 110N of the GA Act empowers the Tribunal to revoke or vary an enduring power of guardianship and S1 has made an application for revocation of the EPG.

S1's allegations

1. I turn now to consider the allegations that form the basis of S1's application for revocation of the EPG and the appointment of a guardian.

2. As I have already stated I have been cautious in accepting the evidence of the three brothers, and S1W.

3. In respect of S1's evidence, I do not consider him to be a reliable witness for the following reason.  When questioned whether he was in financial difficulty in July - August 2022, he denied it, and said that his  company was operating well.[93]  The documentary evidence clearly indicates that the family company of which he and his wife were directors, was in discussion with liquidators from April 2022.[94]  S1 also denied contributing his own funds, or the funds of another of his companies, to keep the family company afloat.[95]  S1W gave evidence that in 2022 both she and S1 were contributing their own personal funds to support their family company, and that they refinanced so that they could support their family company.[96]  On the basis of the documentary evidence and S1W's evidence I find that S1 was in financial difficulty in mid-late 2022, being the period during which his relationship with his mother was rekindled.  S1's denial leads me to doubt the reliability of his evidence overall.

Physical abuse

[93] ts 56, 30 October 2024.

[94] HB, page 546.

[95] ts 58, 30 October 2024.

[96] ts 70 -71, 30 October 2024.

1. S1 alleges that he was told by his aunt (his mother's sister) in early 2023, that AA had complained to her that she had a sore arm, where S3 had grabbed her.  On being informed of this by his aunt, S1 reported it to the police.[97]

   [97] HB, page 721; S1's witness statement dated 1 December 2023, HB, page 707 at paragraph 60.

2. S3 denies this allegation.[98]

   [98] Amended Affidavit of S3 dated 28 October 2024, para 93.

3. There is no contemporaneous or independent evidence regarding this alleged incident. Given the caution with which I view S1's evidence, which in this case is hearsay in any event,[99] and on the evidence before me, I am not satisfied that this allegation is made out.

Medicating her for compliance

[99] The Tribunal is not bound by the rules of evidence (State Administrative Tribunal Act 2004 (WA), s 32(2)) although it is guided by them.

1. S1 has alleged that his mother is being medicated (in particular with Valium, being the trade name for Diazepam) for compliance.  The allegations are levelled at S2, who I accept has supervised his mother's medication for many years, being well placed to do so given his professional background.

2. S2 refutes the allegations.[100]  Further S2 gave evidence that their mother has never taken Valium.[101]

   [100] Amended Affidavit of S2 dated 28 October 2024, paragraph 17.

   [101] ts 113, 30 October 2024.

3. In support of his allegations, S1 gave evidence that in his view his mother was sedated when he and S1W saw her several hours after they responded to her distressed phone call on 25 March 2023 asking for their help.[102] 

   [102] S1's witness statement dated 1 December 2023, HB, page 725.

4. S1 gave evidence that he has seen his mother take Valium some of which was prescribed for her and some of which was prescribed for her sister, who had been a consumer of Valium for many years.[103]  In his oral evidence he said that it was 'conceivable that that was used and encouraged'.[104]  When asked whether he ever saw S2 give their mother prescription Valium that was not her own, he said that he had not.[105]

   [103] HB, page 820, ts 33, 5 December 2023.

   [104] ts 32, 5 December 2023.

   [105] ts 34, 5 December 2023.

5. When I asked S1 whether he had any evidence that the medications that his mother was taking were not prescription medication S1 responded that it was 'just a suspicion'.[106]  S1 agreed that he was not sure whether his mother ever took medications that were not prescribed.[107]

   [106] ts 22 - 23, 5 December 2023.

   [107] ts 24, 5 December 2023.

6. S1's own evidence falls well short of establishing the allegations, which at their highest are suspicions, in part on account of his mother's changing moods.[108]

   [108] ts 23, 5 December 2023.

7. S1W alleges that AA is vulnerable to being exploited or manipulated regarding the medicine she is given.[109]  When I asked S1W whether she had any evidence that AA had been given medicine that she was not supposed to have, she said no.  Further, when I asked S1W whether she had any evidence that AA is being exploited or manipulated regarding the medicine she is given, S1W said no.[110]

   [109] S1W's witness statement dated 1 December 2023, HB, page 680 - 706.

   [110] ts 67 and 68, 30 October 2024.

8. On the evidence before me I am not satisfied that any of the medications taken by AA were taken otherwise than in accordance with her doctor's instructions.  Further, on the evidence before me I am not satisfied that AA is being medicated for compliance as alleged by S1. 

Lack of access to a geriatrician

1. S1 complains about his mother's lack of access to a geriatrician.[111]

   [111] Application, pages 1 - 6.

2. Whilst GP2 referred AA to geriatrician 2 on 13 April 2023, following S1's attendance on him to discuss his concerns about his mother's mental state and capacity[112] there is no evidence that AA was assessed by geriatrician 2.

   [112] HB, page 220.

3. When I asked S1 whether he relayed GP2's view that their mother be assessed to his brothers, he responded that he did not as the relationship with them had completely broken down by this time.[113]  Further he gave oral evidence that he did not convey any of his concerns regarding his mother's cognition to his brothers, for the same reason.[114]  Before the relationship with his brothers broke down he said he may have texted or emailed them about his concerns about his mother's cognition in late 2022/early 2023, and that he got zero response (emphasis added).[115] 

   [113] ts 29, 5 December 2023.

   [114] ts 30, 5 December 2023.

   [115] ts 30, 5 December 2023.

4. When S3 was asked why he did not appoint a geriatrician for AA at the time he first noticed a change in his mother's cognition (in October 2022) he said he was sure there had been a geriatrician involved in his mother's care.[116]  However there is nothing in the medical notes about AA having been reviewed by a geriatrician between October 2022 and the commencement of these Tribunal proceedings.  As I have earlier stated, following the commencement of these proceedings AA's capacity was assessed by geriatrician 1 in June 2024, and that is the first time AA's capacity was assessed by a geriatrician and I so find. 

   [116] ts 99, 30 October 2024.

5. AA also saw geriatrician 3 during her admission to hospital for COVID­19 in December 2023 although there is no evidence that any capacity assessment was undertaken by geriatrician 3.[117] 

Restricted access to AA

[117] HB, page 100.

1. S1 alleges that from October 2022 he (and his family) have been prevented from interacting with his mother in any way, despite his frequent attempts.[118]  I accept that if given the opportunity, S1's family would like to visit AA.

Phone calls

[118] Witness statement of S1 dated 1 December 2023 at HB, page 723.

1. There is no dispute that AA's phone calls are being diverted to S3's phone and I so find.

2. S3 says that his mother agreed to her calls being diverted to his phone, and that he nevertheless informs his mother of any incoming calls.[119]

   [119] Amended Affidavit of S3 dated 28 October 2024, paragraph 99.

3. S3 says that this is because S1 and S1W were persistently contacting AA and she told him she was stressed by her interactions with S1, and fearful of him.[120]

   [120] Amended Affidavit of S3 dated 28 October 2024; HB, page 404.

1. S2 and S3 contend this is because of S1 repeatedly raising his financial difficulties with their mother and also because he raised with her the 2003 transfers of a share in their parents' properties to S2 and S3.[121]

   [121] Amended Affidavit of S3 dated 28 October 2024; HB, pages 402 and 403.

2. On the basis of S3's evidence and S1W's evidence I am satisfied, and I find that during the period of the rekindling of their relationship there were discussions between S1 and S1W and AA about their challenges in the [relevant] industry at that time.[122]  This led S2 and S3 to the view that S1 and S1W's motivations were for financial gain.[123]

   [122] ts 70, 30 October 2024.

   [123] Amended Affidavit of S3 dated 28 October 2024; HB, page 404.

3. On the basis of S1's evidence, I am satisfied and I find that in late 2022 S1 also raised the matter of the 2003 property transfers with his mother at a family gathering.[124]

   [124] ts, 52 - 55, 30 October 2024.

4. S1 says that his mother was not distressed when he raised this matter with her[125] whereas S2 and S3 say that she was distressed after that discussion.[126]  

   [125] ts, 55, 30 October 2024.

   [126] OPA report, HB, page 54.

5. Given the conflicting evidence and the caution with which I treat the evidence of the parties I am unable to make any findings as to whether AA was fearful or stressed by her interactions with S1. 

Visits

1. It is not in dispute that S1 and S1W are being prevented from visiting AA at her home and I so find.

2. Further I am satisfied, and I find that S2 and S3 did not inform S1 and his family of AA's hospitalisations in late 2023 and 2024, thereby preventing S1 and his family from having the opportunity to visit AA in hospital.[127]

   [127] ts 164, 1 November 2024.

3. S2 and S3 say that their mother's contact with S1 and S1W should cease because of the stress and anxiety it is causing their mother, and because S1 and S1W were harassing AA.[128] 

   [128] S2's Amended Affidavit dated 28 October 2024; page 616; Amended Affidavit of S3 dated 28 October 2024.

4. On the other hand, S1 contends that it is S3 and S2's behaviour, the details of which are set out in his evidence but which it is not necessary for me to outline here, that is distressing their mother.[129]  He has given evidence that his mother has complained about S2 and S3's behaviour, and reached out to him and his wife for help.[130]

   [129] HB, pages 747 -748, 752.

   [130] Witness statement of S1 dated 1 December 2023, Timeline HB, page 808.

5. Given the conflicting evidence and the caution with which I treat the evidence of the parties, I am unable to make any findings as to whether S1 and S1W are harassing AA and causing her distress, or whether it is S2 and S3's behaviour that is causing AA stress.

Conclusions re contact

1. On the evidence before me I am satisfied and I find that S2 and S3 have prevented S1 and his family from interacting with AA by phone, and in person and that they will continue to do so in the future. 

AA's views/wishes re phone calls/visits

1. There is conflicting evidence about whether AA welcomes contact with S1 and his family.

2. S1W's evidence is that AA welcomes contact from them.[131]  This is consistent with S1's evidence.

   [131] S1W's witness statement dated 1 December 2024, paragraphs 37, 40 and 46.

3. On the other hand, S3 says that his mother expressed to him that she did not want to see S1 anymore.[132]

   [132] Amended Affidavit of S3 dated 28 October 2024, paragraph 91.

4. When interviewed by the investigator 'despite explanation she could not grasp that S1, or his family could not just visit because of being blocked or that they could not call her as her phone was blocked. She did not seem to understand they were prevented from coming to the house'.[133]  She said that if they came, she would let them in.[134]  She enquired of the investigator why S1 did not call her anymore.[135]

   [133] HB, page 50.

   [134] OPA report, HB, page 52.

   [135] OPA report, HB, page 52.

5. AA has conveyed differing views to the investigator, on the one hand being open to visits from S1 and his family,[136] and on the other, that she wanted S1 to stay away (that sentiment does not extend to S1W and the children).[137]

   [136] OPA report, HB, page 52.

   [137] ts 163, 1 November 2024.

6. Given the conflicting evidence and the caution with which I treat the evidence of the parties, I am unable to make any findings that the 'gatekeeping' of AA by way of phone calls or visits is at her request. 

7. Further, given the conflicting evidence and the caution with which I treat the evidence of the parties, I am unable to make any findings as to whether AA welcomes contact with S1 and his family, or whether she does not.  I am unable to make any findings as to whether AA is distressed by her interactions with S1 and his family.

8. It follows that I am unable to make any findings as to whether this 'gatekeeping' of visits and phone calls by S3 and S2 is in AA's best interests or not.

9. As an aside, but importantly, AA's ability to receive visits from S1 and his family in her home is complicated by the fact that since the April 2023 property transfers, AA's place of residence (which was previously in her sole name) is now substantially owned by S2 and S3.  Accordingly, they would need to grant permission to S1 and his family to visit their mother in her home, which on the evidence before me I find they would not allow.  Any face-to-face interaction between S1 and his family and AA would have to take place at another location.

The Family Violence Restraining Order (FVRO) Application

1. S2 and S3 say that the EPG has only been utilised on one occasion and that is to seek a FVRO against both S1 and S1W. 

2. S1 says that the FVRO has been sought in bad faith to further control, intimidate and isolate his mother.[138] 

   [138] Witness statement of S1 dated 1 December 2023, HB, page 730.

3. The application for a FVRO was made in late September 2023 by S3 who instructed Lawyer 1 to appear on his behalf.[139]

   [139] ts 151, 1 November 2024.

4. S3 made the application following an incident on 16 September 2023 when S1W, and the grandchildren of S1 and S1W visited AA at her home.  The incident occurred after S3's arrival at the house.  Notably S1 was not visiting his mother at that time.

5. There are different accounts of what occurred on 16 September 2023 and the magistrates court hearing of the application has been adjourned until the outcome of the Tribunal application is known.

6. There are a number of curious features about the application for a FVRO.

7. Firstly, S2 is not a co-applicant for the FVRO (notwithstanding that he is a joint enduring guardian, and joint enduring guardians are required to act unanimously).  S2 was however in attendance at some of the magistrates' court hearings and I find that he supports S3's FVRO application.[140]

   [140] ts 110 - 112, 30 October 2024.

8. Secondly, notwithstanding that the EPG is stated to be in effect only when AA is unable to make reasonable judgments in relation to her person, S3 expressed the view that AA had cognitive capacity at that time, and yet he used the EPG to apply for the FVRO.[141]  S3 says that this was on Lawyer 1's recommendation.[142]

   [141] ts 89, 30 October 2024.

   [142] S3's Amended affidavit dated 28 October 2024, HB, page 409.

9. Lawyer 1's evidence is that 'she's [also] not going to understand what a family violence restraining order is and why she would probably want to have one'.[143]  This appears to contradict his view that as at the 16 October 2023 meeting with the investigator, AA had capacity at that time.[144]  Notably the first hearing date for the FVRO was the following day.  Lawyer 1 was unable to satisfactorily explain the basis for using the EPG at this time.[145]

   [143] ts 152, 1 November 2024.

   [144] Lawyer 1's affidavit dated 29 October 2024, paragraph 46.

   [145] ts 152 - 154, 1 November 2024.

10. The investigator observed in his report that at his meeting with AA on 16 October 2023, AA 'had no memory of the incident on 16 September 2023 despite this being subject to FVRO proceedings when she was a supposed victim'.[146]

    [146] ts 163, OPA report, HB, pages 47 - 60.

11. S3 agreed that if he retains the EPG, he will pursue the application for the FVRO, in order to prevent S1 and S1W from coming to the house, and I accept his evidence and make this finding.[147] 

    [147] ts 99, 30 October 2024.

12. For the reasons I have already set out, given the conflicting evidence and the caution with which I treat the evidence of the parties, I am unable to make any findings as to whether S3's application for a FVRO is in accordance with AA's views and wishes, particularly in light of AA's conflicting evidence about whether she wants to see S1.

Security cameras/surveillance

1. S1 complains about the installation of the surveillance devices at his mother's home to monitor her movements and conversations.[148]

   [148] HB, Application at page 3.

2. S3 agrees that after S1 and S1W's visit on 25 March 2023 he had security cameras installed both inside and outside the house, which is supported by the documentary evidence[149] and I make this finding. 

   [149] Amended Affidavit of S3 dated 28 October 2024, paragraph 108, HB, page 405.

3. S3 says that the reason for this is to protect his mother against 'unfounded allegations'.[150]  There is no evidence that AA was consulted by S2 or S3 regarding the installation of the surveillance.

   [150] Amended Affidavit of S3 dated 28 October 2024, paragraph 108.

4. I accept the investigator's evidence that when he interviewed AA at her home (which was conducted under surveillance), she had no recollection of consenting to the surveillance in her home and did not know why the surveillance was installed.[151]

   [151] ts 162 - 163, 1 November 2024; HB, pages 47 - 60.

5. On the evidence before me I am not satisfied that the installation of the surveillance was done with AA's consent.

Cutting off her care provider in May 2023

1. S1 alleges that AA used to have carers from service provider 1, and that after he told S3 that he had once served on the board, S3 dispensed with their services in May 2023.[152]

   [152] Timeline, Folio 12, HB, page 746.

2. S3 in his oral evidence agreed that one of the reasons for dispensing with the services of service provider 1 was because S1 had been on the board, but that it was also because the quality of their services had dropped, and they wanted to try someone else, although his mother was fine with their services.[153]

   [153] ts 99, 30 October 2024.

3. On the evidence before me I am satisfied, and I find that S3 dispensed with the services of service provider 1 in May 2023 and that one of the reasons was because S1 had been on the board. 

4. Notwithstanding that this was one of the reasons for S3 ceasing their services I am not satisfied that the cessation of the services of service provider 1 has been adverse to AA's best interests.  I make this finding because soon after the cessation of their services service provider 2 took over providing services having commenced in July 2023.[154] 

My conclusions about whether the EPG is a less restrictive alternative to appointing a Guardian

[154] Amended Affidavit of S3 dated 28 October 2024, paragraph 6.

1. Having dealt with the allegations that form the basis of S1's application for revocation of the EPG and the appointment of a guardian, I turn to whether the EPG is a less restrictive alternative to the appointment of a Guardian. 

2. Section 51 of the GA Act sets out that a guardian must act in the best interests of the represented person and it includes acting as an advocate for them, in such a way as to encourage them to live in the community and participate as much as possible in the life of the community, in such a way as to encourage and assist them to become capable of caring for themselves and of making reasonable judgments about their person. The guardian must protect the represented person from neglect, abuse or exploitation. They need to consult with the represented person, taking into account as far as possible their wishes in a way that is least restrictive of their rights but still consistent with their proper protection. Further the guardian has to act in such a way as to maintain any supportive relationships that the represented person has and to maintain their familiar cultural, linguistic and religious environment where those things are relevant.

3. These obligations apply to enduring guardians.[155]

S2 and S3's care of their mother

[155] GA Act, s 110H(a).

1. I turn to consider S2 and S3's care of their mother.

2. S3's evidence at the hearing about his care and commitment to his mother was heartfelt and poignant and I accept his evidence.  His words are supported by his actions over decades.  I accept that S3 has been taking care of his mother since his father died to honour his commitment to his late father to look after her, including residing with her.  I accept that he resigned from his job in early 2024 to devote himself to his mother's care 24/7, and also increased her home care package to a level 4, being the highest level of in-home care.  It is evident that this is taking a toll on him.  I accept that S3 routinely accompanies his mother to medical appointments, and this is documented in the medical notes.  I accept S3's evidence that he hopes to return to work at some stage.  It was evident at the commencement of the hearing that his mother was distressed that S3 was not beside her (she was appearing by phone from home, with a carer alongside her), and that she is very reliant on him.

3. I do not doubt S3's devotion and commitment to his mother.

4. Nor do I doubt S2's devotion and commitment to his mother.  On the evidence before me I am satisfied and I find that he has been involved in his mother's care, supervising her medication regime, taking her to medical appointments and visiting her almost daily since at least 2007.

5. In respect of the prospect of AA going into a nursing home, S2 and S3 expressed differing views.  S3 says there is no plan for their mother to move into a nursing home and that this was out of the question.[156]

   [156] ts 97, 30 October 2024.

6. When S2 was asked whether it was his intention for their mother to move into a nursing home when the time comes, he responded that 'if the time comes, she will be assessed by a geriatrician and if that's the best course of treatment for her, then that's what will happen'.[157]  He gave evidence that he and S3 would discuss the geriatrician's assessment and make a decision then.[158]

   [157] ts 113, 30 October 2024.

   [158] ts 113, 30 October 2024.

7. I do not consider that the differing views expressed by S2 and S3 in respect of nursing home care, necessarily mean that they would not work together as joint guardians in AA's best interest, if this issue arises in the future.  In my view their differing views may be attributed to the fact that they have not yet considered the prospect of AA's entry into residential aged care.

8. Whilst I accept that both S2 and S3 have been actively involved in their mother's care over an extended period of time, particularly since the death of their father, I consider that they are not suitable to remain as their mother's enduring guardians for the following reasons. 

9. Firstly, in allowing the transfer of a substantial interest in their mother's estate to themselves, they have diminished their mother's ability to pay for her ongoing care including residential aged care should that be required if her care needs can no longer be met at home.  When S2 was asked what assets his mother will have to pay the Refundable Accommodation Deposit, S2 said he will pay that.[159]  It is submitted on behalf of S2 and S3 that 'given the level of care and the cost of care [S2] and [S3] are going to need to be putting money in to top it up … because the rent is not going to pay for the amount of care that she needs'.[160]

   [159] ts 113, 30 October 2024.

   [160] ts 199, 1 November 2024.

10. Secondly, the acrimonious relationship between the brothers compromises S2 and S3's ability to act in such a way as to maintain any supportive relationships that their mother has, or foster their mother's relationship with S1 and his family.

11. S3's application for a FVRO will, if successful have the effect of removing S1 from their mother's life, in circumstances where she has expressed that she would like to see S1 (albeit she also expressed a contrary view).  In making the FVRO application S3 (with S2's concurrence) has not acted in such a way as to encourage and assist AA to become capable of caring for herself and of making reasonable judgments about her person.  The effect of any FVRO is that it is restrictive of AA's rights to freely associate with S1 and S1W, in circumstances were there was a rekindling of the relationship between AA and S1 and his family in 2022.  On the evidence before me I am not satisfied that the FVRO is required for AA's proper protection.

12. The instigation of defamation proceedings against S1W is a further example of the acrimonious relationship between S2 and S3 and S1's family. 

13. Thirdly, I am persuaded by the submission that S2 and S3 are not suitable to be their mother's enduring guardians as 'people who don't know how an EPG operates, and who go and apply for a VRO using it, and don't do it jointly, they're just not appropriate people to be continuing to hold that EPG' and that it also indicates their lack of suitability for appointment as guardians.[161]

    [161] ts, 175, 1 November 2024.

14. Fourthly, I consider that being under surveillance is a restriction of AA's rights.  On the evidence before me I am unable to make a finding as to whether the installation of the surveillance is required for her proper protection. 

15. For these reasons I find that the EPG is not a less restrictive alternative to the appointment of a Guardian.

16. The investigator also expressed the view that the EPG is not a less restrictive alternative to the appointment of a Guardian.[162]

    [162] OPA's report, HB, page 57.

17. In my view the EPG ought to be revoked for these reasons.

Issue 5:  If AA needs a guardian who should be appointed?

1. The guardian must be a person over the age of 18 who is willing to undertake the role, and who the Tribunal finds will act in the best interests of the represented person (including as set out in s 51 of the GA Act) and is otherwise suitable.[163]

   [163] GA Act, s 44.

2. The guardian's interests must not conflict with those of the represented person and the Tribunal must take into account in assessing suitability as far as possible:[164]

   (a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;

   (b)the compatibility of the proposed appointee with that person and with the administrator/guardian (if any) of that person's estate;

   (c)the wishes of the person in respect of whom the application is made; and

   (d)whether the proposed appointee will be able to perform the functions vested in them.

   [164] GA Act, s 44(2).

3. The Public Advocate shall not be appointed as guardian or administrator unless there is no other person the Tribunal finds suitable who is willing to act.[165]

   [165] GA Act, s 44(5).

4. AA has conveyed to the investigator that if she had to choose people to help her it would be S2 and S3, as she trusts them.[166]

   [166] OPA report, HB, page 53.

5. However, I do not consider that they will act in their mother's best interest for the following reasons.

6. Firstly, I do not consider they will preserve the existing relationships within the family, given the acrimonious relationship they have with S1.

7. Secondly, I do not consider that S2 and S3 would be able to perform the functions of the guardian.

8. The relevant functions for AA's guardian that have been recommended by the investigator and with which I agree are accommodation, treatment, services, contact, and legal next friend.

Accommodation

1. In respect of who makes decisions about where and with whom AA resides, whilst this is presently settled, should her care needs be unable to be met at home, a decision may need to be made about residential aged care.  Given the family conflict, I consider that this function needs to be held by an independent guardian, so that the differing views of each of the sons can be heard, and a decision made in AA's best interest.  Further given that AA's estate is greatly diminished and her ability to pay a Refundable Accommodation Deposit may require her to rely on S2's offer to pay, S2 and S3 are not able to perform that function as accommodation decision-makers because the financial implications for them may interfere with making a decision in her best interests.  Alternatively, a decision may need to be made to sell one of her assets, potentially her current residence where she lives with S3.  S3 has a potential conflict of interest in acting as his mother's accommodation guardian for this reason. 

Treatment

1. In respect of who makes decisions about treatment, given AA's age she requires ongoing decisions to be made about her medical treatment.  Given the conflicting views about her treatment, I consider that these functions cannot be performed by S2 and S3, as the views of S1 will not be heard, as they were not in April 2023 when S1 went to see his mother's GP in April 2023, and the GP recommended she be assessed.  S1 did not convey that recommendation to his brothers because of the breakdown in their relationship.  This function would also enable the guardian to share medical information about AA with all three of her sons, and to inform them, particularly S1 about any hospitalisations, or deteriorations in her health.  It is conceded by S2 and S3's legal representative that there are issues around the hospital visits and the communication about medical care.[167]

   [167] ts, 197, 1 November 2024.

2. Further, given AA's declining cognition from at least September 2022, and S2 and S3's failure to get her assessed by a geriatrician on a timely basis I am not satisfied that they would make treatment decisions in their mother's best interests.  

Services

1. In respect of services, given that AA is the recipient of services pursuant to a level 4 home care package, and given that one of the reasons for S3 dispensing with the services of service provider 1 because of S1's previous involvement in that organisation I consider that it is prudent to include this function, so that the differing views of the brothers may be heard by an independent guardian as to the most appropriate service provider.

Contact

1. In respect of who makes decisions about the contact AA has with others and the extent of that contact, given the fractured family relationships these decisions cannot be made by S2 and S3.  S3 (with S2's support) has applied for a FVRO, which puts them in a conflicted position to make any contact decisions on behalf of their mother.  I accept the investigator's view that there will need to be a contact plan for S1's family.[168]  This function needs to be held by an independent guardian.

Legal next friend

[168] ts 166, 1 November 2024.

1. I accept the investigator's view that the guardian will also have to make a decision about whether pursuit of the FVRO is in AA's best interests, and therefore require the guardian to have a next friend legal function.[169]  This function cannot be performed by S2 and S3 and will need to be held by an independent guardian.

Conclusion

[169] ts 166, 1 November 2024.

1. Given that there are no suitable guardian(s) the Office of the Public Advocate must be appointed as AA's guardian, and I so find.

Issue 6:  If guardianship and administration orders are made, how long should the orders run before they must be reviewed by the Tribunal?

1. The medical evidence is clear that AA has a diagnosis of a progressive illness and she will have an ongoing need for someone to have the legal authority to manage her finances and make decisions in relation to her personal circumstances.

2. Therefore, these orders ought to be reviewed within five years, which is the maximum term possible.  This is consistent with the recommendation of the investigator.[170]

Further orders

Voting

[170] ts 167, 1 November 2024.

1. I will also make orders declaring AA incapable of voting as the medical evidence supports this.[171]

   [171] Geriatrician 1, HB, page 321.

2. For the reasons set out above, I make the following orders.

Orders

The Tribunal declares that the represented person, [AA] is:

(a)unable, by reason of a mental disability, to make 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 guardian.

Administration

The Tribunal orders:

1.The order made on 5 December 2023 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.

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 $1,000 per annum on gifts on behalf of the represented person.

4.The Enduring Power of Attorney dated 4 October 2021 made by the represented person appointing [S3] and [S2] as her joint and several attorneys is revoked.

5.The administration order is to be reviewed by 3 January 2030.

Guardianship

6.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, either 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 the Guardianship and Administration Act 1990 (WA);

(d)to determine the services to which the represented person should have access;

(e)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf the represented person, except proceedings relating to the estate of the represented person; and

(f)to determine what contact, if any, the represented person should have with others and the extent of that contact.

7.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.

8.The enduring power of guardianship dated 4 October 2021 made by the represented person appointing [S2] and [S3] as her joint guardians is revoked.

9.The guardianship order is to be reviewed by 3 January 2030.

10.It is declared that the represented person is not capable of making judgments for the purpose of complying with the provisions of the Electoral Act 1907 (WA) relating to compulsory voting.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS V Haigh, MEMBER

3 JANUARY 2025