AC - [2023] WASAT 120

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   AC [2023] WASAT 120
MEMBER:   MS F CHILD, MEMBER
HEARD:   21 DECEMBER 2022 AND 18 SEPTEMBER 2023
DELIVERED          :   6 DECEMBER 2023
FILE NO/S:   GAA 2943 of 2022
GAA 2944 of 2022
AC
Donor
S
Applicant
B
Donee

Catchwords:

Guardianship and Administration Act 1990 (WA) - Enduring power of attorney - Application for the production and audit of records and accounts kept by donee - Donor and donee in de facto relationship - Tribunal not satisfied a need established for an enquiry into the conduct of the EPA by the donee - Applications dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 102, s 107, s 107(1)(b), s 107(1)(c), s 109, s 109(1), s 109(1)(a), s 109(1)(b), s 109(1)(c), Pt 9

Result:

Applications dismissed

Representation:

Counsel:

Donor	:	In Person
Applicant	:	In Person
Donee	:	Ms A Christiansen (between 3 August 2022 and 27 June 2023)

Solicitors:

Donor	:	N/A
Applicant	:	N/A
Donee	:	Dwyer Durack

Cases referred to in decision(s):

BFO & Ors and KPW [2014] WASAT 68
EW [2010] WASAT 91
GA and EA and GS [2013] WASAT 175
IT and DN AND MN [2018] WASAT 117
KS [2008] WASAT 29
Re SS; Ex Parte RA [2008] WASAT 218

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Applications were made to the Tribunal on 6 July 2022 by S in respect of an enduring power of attorney (EPA) made by her father, AC, on 18 June 2008 by which he appointed AC's de facto spouse (and S's mother), B, as his sole attorney (2008 EPA).
The applications were made pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act) for the filing of records and accounts kept by the donee of dealings and transactions made in connection with the EPA, and an audit of the accounts filed pursuant to s 109(1)(b) of the GA Act.
B made her own application on 5 August 2022 seeking the revocation of the 2008 EPA, pursuant to s 109(1)(c) of the GA Act. B said that she had given notice to AC that she would no longer act under the 2008 EPA on 5 August 2022.[1] I revoked the 2008 EPA by order dated 14 September 2022.
[1] Counsel for B submitted that because of an historical dementia diagnosis made for AC in 2018/2019 there was an ambiguity as to whether he was capable. Therefore, B sought the order from the Tribunal to revoke the EPA rather than renounce the power because s 107(1)(c) of the GA Act provides that the donee of an EPA cannot renounce a power during any period of incapacity of the donor. It was argued for B that if the Tribunal found AC incapable, that the Public Trustee should be appointed administrator of his estate. However, B did not make an application for the appointment of an administrator of AC's estate as it was said that she did not have a good faith belief that AC was incapable.
Given the allegations of inappropriate financial decision-making for AC, and the conflict in the medical evidence[2] regarding AC's present capacity to manage his own affairs, I referred the applications to the Office of the Public Advocate (Public Advocate) for investigation of whether AC was in need of an administrator of his estate, or a guardian, to consider whether he was subject to chemical restraint.[3]
[2] Medical reports had been filed with the Tribunal which were in conflict as to AC's present capacity to manage his affairs. Historical reports indicated that AC had a dementia diagnosis.
[3] This second issue related to an allegation that AC sexually assaulted another resident in the nursing home in which he was then living. This allegation was not referred to police as AC was said to lack capacity to understand his actions due to his dementia. AC was then prescribed medications which might be considered chemical restraint. A denies the allegation.
Following that investigation, the Public Advocate's investigator attended the hearings before the Tribunal and made submissions.
As no application was made for the appointment of an administrator of AC's estate it was not open for the Tribunal to make any finding as to AC's present capacity or incapacity.

Evidence and material before the Tribunal

During the proceedings I heard from S, her carer MC,[4] and from AC by telephone, from B and AC and B's younger daughter, C, and their son, SA, in person. Submissions were also made on B's behalf by her legal representatives. The solicitors ceased to act prior to the final hearing. In the final hearing, C, who is a solicitor, made further submissions on B's behalf.
[4] S reports she has health problems from past trauma and MC is her carer and friend.
Extensive written material was submitted to the Tribunal including the following:
(a)applications by S and B;
(b)an EPA dated 18 June 2008 made by AC by which he appointed B as his sole attorney and, in substitution, his son M;
(c)detailed submissions by S including responsive submissions;
(d)a statutory declaration by B dated 8 December 2022;
(e)a copy of the will of B made in 2008 and a copy of the EPA of B (which is a mirror for AC's EPA);
(f)outline of submissions of B;
(g)statutory declaration of C dated 8 December 2022;
(h)statutory declaration of R, daughter-in-law of B and AC, dated 8 December 2022;
(i)transfer of land in respect of the property indicating AC and B's signatures on 14 August 2020;
(j)financial records of AC and B, including B's bank statements, showing the deposit of the proceeds of sale of the property on 14 August 2020, statements of the bank account of C and son‑in-law RB showing the deposit and re-transfer of funds;
(k)an 'authority to operate' dated 31 August 2005 on AC's bank account signed by B as nominee with the signature panel of the member (being AC) completed with his full name printed rather than signed – signed and apparently accepted by a bank officer;
(l)medical reports including:
(i)Dr T (physician) dated 24 July 2018;
(ii)Hospital discharge summary dated 13 July 2018;
(iii)Aged Care Assessment dated 3 July 2017 reporting on AC's cognitive and functional decline, including dependence for activities of daily living and personal hygiene with approvals for home care package level 4 and high level residential respite care and permanent residential care;
(iv)Medical notes of Dr AH (general practitioner) of various dates in 2011 and 2016;
(v)Letter of Dr P dated 24 July 2018 indicating the withdrawal in hospital of various medications prescribed for AC;
(vi)Report of Dr JM (general practitioner) dated 7 September 2022 reporting that AC had a 'normal mental state' and giving the opinion AC was 'able to make decisions for himself' with a Montréal cognitive assessment of 26/30;
(vii)Report of Dr PR (geriatrician) dated 12 September 2022 stating he had known AC between 2015 and 2018 reporting AC was incapable in all spheres of decisionmaking but noting he had not seen him in the previous 12 months. Attached to the report were letters to other doctors dated 10 February 2018 and 7 June 2016 referring to AC as having a moderate memory loss and a likely diagnosis of Alzheimer's with BPSD (behavioural and psychological symptoms in dementia) noting MMSE of 23/30;
(viii)Report of Dr SM (geriatrician) dated 7 November 2018 referring to a likely diagnosis of Lewy body dementia with letters addressed to Dr AO regarding this diagnosis and medications prescribed;
(ix)A Montréal cognitive assessment dated 21 September 2021 with a score of 18/30; and
(x)Report of Dr AO dated 22 September 2022 reporting a diagnosis of Lewy body dementia and that in her opinion AC was incapable in all spheres of decisionmaking.
(m)a report of a forensic document investigation dated 17 March 2023 reporting on questioned and sample signatures of AC's signatures between the dates 2005 and 2022 on a number of documents. The preliminary conclusion was that all but one of the questioned signatures (from 2005, 2009, 2014, 2016 and 2020) were not genuine. The conclusion was reported to be qualified by the degree of variation in the specimen signatures with the changes over time due to ageing and health of the writer. There were also limitations of the poor quality images of some of the signatures;
(n)a letter from the bank dated 23 December 2022 reporting that the EPA appointing B was 'put in place' as of 17 July 2018 and revoked at A's request as of 2 September 2022;
(o)statement of account on the mortgage held by AC and B for the period 25 July 2005 to 14 August 2020 annotated by S to identify the dates of drawdowns on the mortgage and the dishonour of periodical payments of the mortgage and other payments;
(p)home loan statement for the period 1 January 2018 to 30 June 2018;
(q)bank statement of B for the period 15 July 2019 - 14 October 2019 showing the deposit understood to be an inheritance of $110,936.60;
(r)Centrelink Relationship Details form dated 23 September 2014 signed by AC and reportedly completed by B referring to B as 'acting as a carer' and indicating that AC did not have a joint account, or the use of any account and that AC and B did not have access to each other's accounts. This final point was not correct as B had access through a banking authority on AC's account;
(s)Centrelink residential aged cost of care assessment dated 15 July 2018; and
(t)EPA and EPG dated 7 September 2022 by which AC appointed another attorney and enduring guardian witnessed by Dr JM and another person.

S's application

S states that she was estranged from her family for about 12 years until mid‑2021.[5] She says she reconciled with AC around June 2021 following a family member contacting her. S says she now has contact with AC by telephone and she and MC have been assisting him to manage his finances from August or November 2021.[6] S says that a new EPA and EPG have now been executed by AC in favour of other persons. AC left the nursing home in December 2022 and now lives with his brother in a country town.
[5] S says she was estranged for this period from the family apart from one brother, T. S gives a detailed explanation for the estrangement from both her parents and her other siblings, but the sequence of events is somewhat unclear to me and, in any event, not relevant to the proceedings other than to emphasise S's antagonism to B. S says she has not reconciled with other members of the family, including B, because they will not take the steps that S says are necessary for reconciliation, which she says AC has now done. T did not appear or give evidence in the hearings.
[6] Both dates have been given. S says she is not able to travel to the country town in which AC lives because of her own health issues but has had contact with him by telephone and by FaceTime.
S says that in respect of the 2008 EPA that '[AC] and I do not believe that [B] informed him of what he was signing at the time'. S states that 'Dad has clearly expressed that if he knew that the EPA gave B unlimited power over his financial affairs, he would never have signed it'. S says that the EPA was registered with Landgate, presented to AC and B's bank in 2017 and to the nursing home in 2018 when AC entered residential care there.
In support of her application, S alleges that over many years[7] that B has 'lied' to AC about his finances. S alleges B misappropriated AC's funds by transferring money from his account and by drawing down on the mortgage on their then jointly owned property. S further alleges that there has been 'forgery', 'stealing' and 'fraud' by B. These allegations are understood to be in relation to the drawdown on the couple's mortgage and the document submitted to Centrelink.
[7] The first matter, by date order, challenged in the application is the property settlement reached between AC and B in 1998.
In respect of the drawdowns on the mortgage, AC is said not to have known there was a redraw facility. It is alleged by S that at least 12 of the redraw applications over several years from 2005 were forgeries of AC's signature by B. S says that as lump sums were paid off the mortgage on 31 August 2005 ($70,000) and 25 March 2013 ($120,000), AC questions the balance owing on the mortgage.
There are also allegations regarding the use of funds by B from an inheritance AC is said to have received from his deceased brother's estate.
S says B has misrepresented her relationship with AC to the Tribunal and that B and AC separated in 2018 when B 'left AC in the nursing home'. S argues that the nature of AC and B's relationship is shown in a document submitted to Centrelink in 2014.[8] The document states that B was AC's carer and they had separate bank accounts and did not have access to each other's accounts. S says this was not correct as B has had authority to operate AC's account since 2005. The authenticity of the 2005 banking authority is questioned by S, but it seems clear from the copy submitted that the bank accepted that B operated AC's account.
[8] Reportedly prepared by B and signed by AC.
S argues that B exaggerated AC's dementia diagnosis and lack of cognitive capacity to 'family members' and neglected AC's health and delayed required medical treatment of AC, thereby endangering his life. S also asserts that B 'took part' in the inappropriate prescription by a specialist geriatrician of medications for AC. Conceding the medications were prescribed by a doctor, S goes on to say this 'does not imply that [B] did not participate in any other irresponsible or underhanded actions regarding [AC's] medications or medical treatments'.[9]
[9] Applicant's responsive submission filed 11 September 2023, page 19.
S asserts that B used the EPA to restrict AC's access to the community from the nursing home where he was resident from 2018 to 2022 and to limit his contact with his wider family. It is also alleged that B controlled the location of AC's mail at the nursing home which was said to be 'hidden in a drawer in his room'.[10]
[10] Applicant's submission; ts 22, 21 December 2022.
S questions the fairness of the property settlement reached between AC and B in 1998, the distribution and value of assets held, including a car purchased by B in 2019, and asks whether AC has any entitlement to B's superannuation.
Clearly some of the allegations made by S pre-date the execution of the 2008 EPA including some of the mortgage drawdowns.

B's response

B says she and AC have been in a relationship since the 1970s. They had their first child, M, in October 1972 and married in 1978 living in a house on AC's extended family's farming property. They have had five children in all: sons, M, now sadly deceased, SA and T, and daughters, S (the applicant), and C. B says AC worked on the family farm and she raised their children. B says that she and AC separated because of AC's drinking and aggression in 1996 and divorced in 1998 after which there was a property settlement. (The terms of this settlement are now challenged by S).
During the Family Court proceedings, B says it was disclosed that AC filed for bankruptcy in 1998 and his interest in his family business was transferred from his name. B says that AC went on a pension after he had filed for bankruptcy. B says that she commenced work as a carer in an aged care facility in 1999.
B says she and AC reconciled in 2001 and resumed living together. B says that during their marriage/de facto relationship she always managed their personal finances. She says that after their reconciliation in 2001 they had separate bank accounts but had joint family and household expenses.
B states that AC has never managed his own finances. During the period of their separation, she believes that his sister helped him.
B says that she and AC purchased a property together in 2005 (the property) with a deposit reportedly paid by AC (B says she believes this was from a contribution from his extended family) and a mortgage on the property of $540,000.
B says that during their relationship she applied both her and AC's incomes to their joint expenses at her discretion but with the agreement of AC. B says that AC expressed little interest in their day-to-day finances and expected her to manage all aspects of their financial affairs. B says he did not appear to have any interest in how living expenses or holiday costs were met.
In 2008, B says that she and AC went to lawyers to have wills and EPAs drafted. On 18 June 2008 they signed the documents at the lawyer's office appointing each other under their EPAs.[11] Both EPAs are unrestricted in the authority granted to the attorney and in force from execution and remaining in force, notwithstanding subsequent legal incapacity.
[11] B has filed copies of documents signed by her as her will and EPA. The EPA provided by B is a mirror for the copy of the EPA made by AC on the same date, 18 June 2008, also witnessed by the same solicitors.
B says that AC had a prostate cancer diagnosis in 2011 or 2012 and she gave up work to care for him, only returning to paid employment once AC had recovered from surgery. B says that between 2014 and 2016 she and AC holidayed together with other family members travelling overseas and interstate.
B says she used an early redemption of her superannuation to repay a business debt of AC's on the basis that she would later be reimbursed from the extended family business but she has not received reimbursement.
B says that in 2018, AC experienced significant health problems and was admitted to hospital and later discharged to an aged care facility.[12] B says it was unclear whether this would be permanent. In the following year AC had further hospitalisations and surgeries. Medical reports from the period which have been filed largely support B's version of AC's medical history and the account of his admission to the nursing home. B strongly rejects the allegations made by S related to AC's medical care and says she and AC relied on the medical advice received at the time regarding his treatment and care.[13]
[12] AC's admission to the aged care facility followed an Aged Care Assessment a copy of which has been submitted.
[13] In her statement during the final hearing, C indicated her view that the original diagnosis of AC as having dementia given in 2018 may not have been correct as it was her view that her father's functioning had not deteriorated further which was not consistent with a dementia diagnosis. Her view was it was more likely a depression after his sister's death in 2016. In her statement C says she questioned doctors about the medications AC was on and saw a recovery in him when some of these medications were withdrawn.
Following AC's admission to the nursing home in 2018, B says she visited him regularly and she was identified as his next of kin by the nursing home staff.[14] B says she regarded their relationship as ongoing and she continued to manage their finances in the same way she had done for the past 18 years. She says her funds were used to support AC and his funds were also applied to their joint expenses (which she identifies as health insurance and mobile phone accounts) and expenses associated with their property, including fire breaks. This sometimes included using the balance of AC's pension after the payment of his nursing home fees.
[14] A report from the nursing home Facility Manager submitted to the Tribunal confirms this.
In respect of the drawdowns from the mortgage B acknowledges that these were made by her and says that the drawdowns were to fund family holidays, to meet expenses including, at times, the regular mortgage repayment because they were 'short of money'.
In respect of an inheritance received from AC's brother who died intestate, B says that some of those funds were used to pay for a headstone on AC's sister's grave and the balance was used for their joint expenses.

B says that, following a deterioration in her own health in 2019 and 2020, she decided to sell the property and to move to Perth to live with her daughter C and son-in-law R. B says AC was offered to come to Perth to either live in a facility or to build a granny flat at their daughter's home and to have a carer, but AC refused. B says she moved to live with her daughter C on 8 August 2020 but continued to travel to the country town to visit AC in the nursing home and attended family functions with him.
B says that the property was sold without reliance on the 2008 EPA and that AC was kept informed in relation to the progress of the sale of the property and at no time did he express any concerns. This evidence is supported by C who says that she discussed the issue with AC who appeared to understand and agree with the reasons for the sale of the property (that B was living alone on the property and had health issues of her own). C says that AC was collected from the nursing home and attended the real estate agent together with her and B to complete documents.
B says that prior to the sale there were costs of a clean-up of the property which she paid from their funds, but she has not retained receipts or records of these expenses.
B said that she sold any saleable household items by auction but she had not kept any records.[15] B says the most valuable item sold was a vehicle which she says was in poor condition which was sold for $400.[16] (S disputes the number and value of vehicles sold but neither B nor S provides any evidence in support of the estimates of the valuations given).[17] B said most of the items had to be disposed of in skip bins. She says the net proceeds of sale (after payment of the auctioneer) was approximately $14,000 which was deposited into her bank account. B says other items were stored in a storage unit, the cost of which was to be met by their son-in-law.
[15] ts 43, 21 December 2022.
[16] ts 36, 21 December 2022.
[17] S states that AC gave away two vehicles to relatives (Applicant's responsive submission).
B says that the proceeds of sale of the property of $328,912.62 were initially paid into her bank account and of this $325,000 was deposited in their daughter C's (and son-in-law's) offset mortgage account on 24 August 2020. B says that AC was aware of this arrangement and agreed with it.
B's evidence of the date of the breakdown of her relationship with AC is somewhat uncertain. B's affidavit refers to an allegation made in early August 2021 that AC had sexually assaulted another resident at the nursing home. It was after this incident that B apparently gave notice to AC that she would no longer manage his affairs. Elsewhere B says that although she confronted AC about the allegation, she did not consider them separated. This evidence is supported by C who says that after she learnt of the allegation, she counselled her mother to separate their affairs, but that B continued to see AC in the nursing home, travelling down from Perth to do so. B says she went to AC's family birthday celebrations around this time.
In October 2021, B says she received a letter from Centrelink asking about the proceeds of the property sale. She believed that either S or AC had contacted Centrelink to 'try to cause trouble' but says she responded to Centrelink's questions. It was then she realised she needed to 'break free from being responsible for AC's finances'.
B says she arranged the transfer of AC's share of the proceeds of sale of the house (being $159,500) into his account on 2 November 2021. This followed the deduction by her of $5,000 to meet costs which she said were incurred with the move. B says she has not kept a record of those costs.
B says she separated their online banking, pharmacy, mobile phone account and their private health insurance and set up direct debits arranging the payment of three months of private health insurance for AC. B says these actions were intended to separate their finances only, but not to end their relationship. When discussing these matters with AC, together with their late son M and daughter in law, B says AC was happy to have the funds transferred to him as he wanted to invest in cryptocurrency.
B says that sometime before their son M died in April 2022, AC asked that $10,000 be brought to him in the nursing home. B says the facility staff were opposed to this and tried to talk AC out of it, but he was adamant. B says cash was taken to AC which B contends was from the proceeds of sale of their household items. S agrees that $10,000 was taken to the nursing home but says that AC believes that M provided the funds to AC. In the hearing, when B was questioned about the wisdom of taking $10,000 to AC in the nursing home against the advice of staff, and when she might reasonably have argued that half of that money was hers, B said.
… it wasn't that 'This is yours and this is mine.' We were together, you know. There was never anything, you know, 'This is your money. This is my money.' That didn't come into it.[18]
[18] ts 44, 21 December 2022.
B says that she and AC have never discussed separating, and it was not until she received the notice from the Tribunal listing S's application that she realised that the relationship may be at an end. B says that she was contacted by the nursing home staff during the proceedings to report a further allegation of an assault on another resident by AC and she had questioned the caller why they were contacting her. I infer from this that by this time she regarded the relationship as over. According to her submissions, S was also contacted about this alleged further incident.[19]
[19] S questions the veracity of the allegations made against AC and argues that they were made by staff of the nursing home to discredit AC as he had challenged the care being provided to other residents.

A's evidence

AC denied ever giving an EPA to B. When asked about the 2008 EPA[20] which showed the document being witnessed by a legal practitioner, AC denied seeing the lawyer.[21] Notably, AC initially denied ever giving an EPA to anyone despite contrary evidence from S and MC that he had made a new EPA in favour of other family members. With some prompting AC was able to recall making a new EPA only some weeks prior.
[20] ts 10, 14 September 2022.
[21] With prompting AC did recall meeting the solicitor but said it was about a property matter many years before.
When asked about a declaration made in 2014 for Centrelink about his living circumstances, which S asserts indicates AC and B were separated (and undermines B's argument of a joint household with joint expenses), AC said he could not make any comment, saying 'it's a fair while ago, I don't have any recollections of a lot of things [B] did'.[22]
[22] ts 45, 18 September 2023.
SA, a son of B and AC, gave evidence that the reason the document was signed in this way was not because his parents were separated, as he did not believe they were, but so that his father could get a full pension.[23]
[23] ts 44, 18 September 2023.
C said that her parents had had issues in their relationship especially around 2011 when there was police involvement (alluding to allegations of domestic violence from AC to B which AC denies) but says that they rebuilt their relationship and by 2018/2019 it was ongoing.[24]
[24] ts 37,18 September 2023
When asked whether he had advised anyone in the family of his earlier stated view that he been separated from B for 15 years, AC said, 'I might have done it was a long time ago I can't remember if I did'.[25] When asked whether he thought his children (C and SA) regarded their parents as separated AC said 'Not really. I have a tendency to keep things to myself'.[26] AC's evidence about the date of separation was inconsistent with the submissions filed on his behalf by S that AC and B separated when AC entered the nursing home in 2018.
[25] ts 48, 18 September 2023.
[26] ts 49, 18 September 2023.
AC did not appear to have recall of some recent matters. An example of this was illustrated by MC, S's carer, who said that AC had driven to his bank in the country town and obtained copies of printouts of bank statements some six weeks prior to the hearing. AC strongly denied this. MC suggested that AC may be confused about another visit to the bank to close his accounts which occurred some months before.
In respect of the proceeds of the sale of household items AC said B had given him three different figures of how much had been obtained from the sale. He said:
Initially she told me that they got $22,000.
…
Then she said six then it went to 14. So, I really don't know.[27]
[27] ts 40, 21 December 2022.
B denied this. AC later agreed that it was MC rather than B who had told him the figure of $14,000.[28]
[28] ts 42, 21 December 2022, B agreed it may have been $14,000 but she could not be certain.
At times in the hearings AC appeared confused. For example, when B was being questioned about the signing of the direct debit for AC's nursing home fees, which B said she believed had been signed by AC in his room at the nursing home, AC interposed and spoke about signing papers to give a block of land to his son. He confirmed that B had not been involved in this. When asked when he had given the land to his son, AC said, 'about six months ago'.[29] When asked to clarify which block of land, AC said, 'the one we inherited from my brother' later saying his brother had died seven years before but he 'was not 100% correct'.[30]
[29] ts 50, 21 December 2022.
[30] ts 51, 21 December 2022.
In respect of the allegation that B lied to AC about their finances and drew down on the mortgage without AC's authorisation, AC said he was relying on 'the documents' to indicate that 'almost a quarter of million dollars was drawn down by [B] from the mortgage'.[31] In contrast, in her detailed submissions, S provides a summary of the total drawdowns from the mortgage between 2005 and 2016 showing a total of $134,330.94.[32] (Notably the drawdowns on the mortgage occur both before and after the execution of the 2008 EPA).
[31] ts 45, 18 September 2023.
[32] Applicant's responsive submission, page 23.
As the allegations by S about B's conduct towards AC range over the period of their relationship, including their separation and divorce in 1996-1998, their reconciliation in 2001 and the subsequent period, the memories of both AC and B are likely to be incomplete. Because of the elapse of time, it is not surprising that AC has difficulty recalling particular matters. However, in relation to AC's evidence in the hearing of attending the bank and executing a new EPA, these events were said to have occurred only in the weeks prior to the hearing. From his presentation in the hearings AC was at times demonstrably confused. Even allowing that he attended by telephone and experiences a hearing impairment, AC's recall of past and current events appeared unreliable. AC himself acknowledged he could not remember what B had done in the past. From the medical evidence filed it appears that at least for some of the period up until his admission to the nursing home that AC had been assessed by geriatricians as experiencing 'Depression with BPSD' (Behavioural and Psychological Symptoms in Dementia)[33] or 'likely Lewy Body dementia'.[34] C described AC as depressed but challenges the dementia diagnosis.[35] Saying, in her view, AC had never been demented and that AC's health appeared to improve. This appears consistent with the comments of Dr SM in 2019 who reports seeing AC with B and C and described AC as 'settled in the nursing home' 'enjoying activities' and 'no longer having hallucinations or delusions'. Although the dementia diagnosis given by the geriatrician in 2016 is now disputed the medical evidence does indicate that AC suffered significant health problems over this time, and it is possible AC's poor health impacted on his recall of this period.
[33] Report of Dr R dated 10 February 2018.
[34] Report of Dr SM dated 13 March 2019 notes an improvement in AC's condition and his MMSE score.
[35] A medical report from 2019 notes that C sought further testing of AC to clarify his diagnosis.
There are serious allegations made by S of criminal conduct by B including forgery and fraud. The forgeries are said to have occurred both before and after the execution of the EPA to facilitate drawdown on the mortgage to, according to S, 'accommodate [B's] irresponsible spendthrift habits'.[36] The forgery allegations are said to be supported by the report of a handwriting expert but the expert himself cautions against reliance on what he described as his preliminary views. Since the documents appear with one signature (in the context it was a mortgage on a jointly held property) both AC and B's signatures use the same initial and there is a very wide range of variation in both the sample and the challenged signatures over time, I was not persuaded that S's contentions were made out. Since the expert was not called and therefore was not cross-examined, I was not able to reach a concluded view. Fundamentally, as B acknowledges she made the drawdowns it is unlikely that the signatures were forgeries as S alleges. If a document was forged, however, the execution of that document could not be said to be a transaction made under the EPA. This appears to be the position of S who states in her submission that the alleged forgeries were 'regardless of the EPA'.[37]
[36] Applicant's responsive submission filed 11 September 2023, page 21.
[37] Applicant's responsive submission filed 11 September 2023, page 21.
The fraud allegation refers to the alleged false declaration to Centrelink to support AC's claim to a pension entitlement. If in fact a false declaration was made to Centrelink (by AC or B), this may have implications for AC's eligibility to the rate of Centrelink income he received during the period. If AC's payment was not the correct entitlement in this period, then a reassessment might lead to an overpayment being raised and possible recovery and or more serious consequences, but these matters are not for the Tribunal to determine.
While S asserts that B had 'spendthrift habits', C describes AC as 'strong and very opinionated' and 'notoriously irresponsible with money;'[38] 'spending money on cars, jewellery and second-hand [items] even when they [AC and B] were struggling financially'.
[38] Statutory declaration of CC dated 8 December 2022.
C describes her contact with AC over the years including daily for a period in 2019 when B was recovering from surgery and could not drive. C relates driving B to visit AC daily in the nursing home and witnessing their discussions about their finances such as what bills needed to be paid'.[39]
[39] Statutory declaration of CC dated 8 December 2022.
S denies that AC and B had any arrangement or an understanding regarding the management of their financial affairs by B. Instead, she argues that B lied or hid all the financial dealings from AC over their relationship. S acknowledges she was estranged from both parents and had no contact with AC (or B) for over 10 years. She cannot therefore have any direct knowledge of the conduct of AC and B's finances, their relationship or many of the events to which she refers in her submissions. This being the case, S's assertions must either be based on AC's recollections as reported to her or on her own views and opinions about B, some of which S says are sourced from her own childhood. I note here that I have already found that AC's recent memory and likely his longer-term recollections are incomplete and unreliable based on his own evidence.
S refers to statements from 'family members' made to her in her submissions to support some of her assertions but she did not provide the names or any direct statements or evidence from any family members. S says she has agreed to 'maintaining their anonymity'. This is despite being invited to provide a list of witnesses at the first directions hearing to support her allegations.[40]
[40] The statement from a former employee of the nursing home filed in support of S's submissions regarding AC's alleged conduct in the nursing home is more in the nature of a character reference for AC rather than an account of the alleged incident since the former employee was not employed at the nursing home at the relevant time and was not present when the allegation was made.
B asserts AC expressed no interest in his financial affairs most of the time, and it may be the case that he was unaware of specific financial transactions including particular drawdowns on their mortgage. However, given the length of their relationship, I am satisfied that AC knew the general nature of the management of their financial affairs by B in as much as he was aware of their mortgage, the costs associated with the upkeep of their property and that the cost of their holidays, including overseas holidays, would have to be met.
S says B's assertion that AC was not interested in his finances is incorrect and that AC raised his concerns with his doctors.[41] The notes of the medical consultations when this is recorded[42] appear to have been made prior to AC's admission to the nursing home when AC was living in the community and driving and presumably could have undertaken his own enquiries. Equally, if he had concerns, he could have cancelled the banking authority which allowed access to his account by B or revoked the 2008 EPA. However, he did not do either and the banking authority and the 2008 EPA remained in place until 2022.
[41] Extracts of notes of Dr H submitted by S. Elsewhere in these notes AC is described as having 'paranoid thoughts about others'.
[42] The notes are somewhat unclear and refer to a visit on 23 February 2011 'recorded' on 15 July 2016.
S's assessment of B's conduct and the relationship and financial affairs of her parents contrasts starkly with the evidence given by her siblings, C and SA, regarding their parent's relationship.
Having regard to AC's lack of reliable recollection, where there is a conflict between AC's evidence about this period and B's, I prefer the evidence of B which is supported by the medical evidence of the time and that of C and SA, both of whom were in contact with both their parents during the relevant period, in contrast to S.
As noted, S's submissions refer to many matters which are outside the jurisdiction of the Tribunal under s 109 of the GA Act in that they do not relate to the EPA. The allegations relate to financial dealings which predate the execution of the EPA, the property settlement reached by AC and B in the late 1990's, and the division of their assets including the value of the vehicle purchased by B in 2019 and her superannuation (when S says the couple separated in 2018).
S's wide-ranging and unsubstantiated allegations about B's conduct in relation to AC's health and his medications are not directly relevant to the application for intervention in the EPA. Despite S's interpretation of events, I do not consider that her allegations are supported by the extensive medical information provided. However, as submitted by counsel for B, the nature of the allegations made by S create doubt about the reliability of her understanding of and subsequently her account of AC's circumstances and illustrates her strong antagonism to B.
Having regard to all of the evidence, I find that it is more likely than not that B and AC were in a marriage-like relationship from their reconciliation in 2001 at least up until early to mid-2022. Potentially there may have been a separation or separations in that period but I am satisfied that they reconciled, and their relationship was ongoing. It is clear from the evidence that, during their relationship, AC was reliant on B for the management of their finances either because of his lack of experience or interest. This dependence predated by many years the execution of the EPA. I am satisfied that this dependence on B for the management of their finances occurred either with the knowledge and agreement or acquiescence of AC over this lengthy period. In respect of the drawdowns on the mortgage, (bearing in mind that the last drawdown was in 2016), I accept B's evidence that these funds were more likely than not used to meet the couple's expenses including their travel and other costs; that is, applied to their joint household and not misappropriated by B as is alleged.

Jurisdiction

Although AC denies executing the 2008 EPA, I am satisfied that the EPA created by him is in compliance with the formalities of Part 9 of the GA Act and is therefore an EPA as defined under the GA Act.[43]
[43] GA Act, s 102.
In contrast to the initial submissions made by Counsel on behalf of B, Barker J, the then President of the Tribunal, in KS [2008] WASAT 29 (KS) recognised that the GA Act had vested in the Tribunal a general supervisory jurisdiction over the conduct of an attorney acting under an EPA. He found that the jurisdiction to intervene in an EPA does not rely on a finding of incapacity of the donor.[44]
[44]As was clarified at the first directions hearing EPA. That decision determined that the jurisdiction existed even where the donor had died or was of legal capacity.
I am satisfied that the applications, pursuant to s 109(1) of the GA Act, made by S are within the jurisdiction of the Tribunal even though no finding has been made regarding AC's capacity.

Does S have a proper interest to bring the applications?

A family relationship with the donor has been found in the past not sufficient without more to support a finding that an applicant has a proper interest.[45] However, given the supervisory role of the Tribunal in respect of the conduct of attorneys, the meaning of 'proper interest' should not be restrictively applied.[46] Further, 'it is likely any person raising a genuine, reasonably based, allegation that an attorney has misappropriated funds or otherwise failed to comply with his or her obligations as an attorney will have a proper interest for the purposes of making an application under s 109(1)(a) or (b).[47]
[45] Re SS; Ex Parte RA [2008] WASAT 218 at [59].
[46] EW [2010] WASAT 91 at [21].
[47] BFO & Ors and KPW [2014] WASAT 68 (BFO & Ors and KPW) at [28].
S has been, on her own evidence, out of contact with both parents (and most of her family for over a decade). As I have said, S has no direct knowledge of many of the matters which form part of the wideranging allegations made against B. From the material submitted it is clear that S has a manifest antipathy to B.[48] Counsel for B invited me to find, and I accept, that the clear animosity that S expresses towards B, which is of longstanding (and not related to the EPA), does undermine the reliability of S's account. It is argued that S should not be found to have a proper interest since the nature of some of the assertions she makes against B indicates her intention not to assist AC but to punish B.[49] There is some force in that argument. However, as S arranged for AC to obtain legal advice from Legal Aid to assist him in accessing his personal medical and financial records, and to assist him before the Tribunal, I am able to find that S has a proper interest acting as an agent of AC, (who has a direct interest as the donor in the conduct of his affairs pursuant to the 2008 EPA), but not otherwise. On this basis, I now must consider the question of whether an enquiry is necessary into the operation of the 2008 EPA.

Should the Tribunal exercise the discretion to make the order sought?

[48] Her assertions about B's conduct are very wide-ranging including referring to some matters from her childhood.

[49] Respondent's submissions. In that circumstance her application could be characterised as vexatious that is as brought for an improper purpose see GA and EA and GS [2013] WASAT 175 (GA and EA and GS).

Finding that the applicant has a proper interest, that being in the conduct of the affairs of the donor under the EPA, is not the end of the matter. [50] The Tribunal must determine whether there is some reason requiring or justifying an enquiry or scrutiny into the operation of the EPA before it can make the orders sought under s 109(1)(a) and (b).[51]
[50] GA and EA and GS at [25] and [27] citing an earlier decision of the Tribunal EW.
[51] EW at [94].
The jurisdiction of the Tribunal in respect of an EPA is a narrow one: once the Tribunal is satisfied that the applicant has a proper interest, the only order that can be made is for the filing of records kept by the attorney and, pursuant to s 109(1)(b), an audit of those records so filed and an order of the Tribunal 'has no other remedial effect'.[52]
[52] KS at [35].
The original submissions by S, and the request by AC made in the hearing that money allegedly misappropriated by B be paid back to him, cannot be ordered by the Tribunal (even if it was in fact found that funds had been misappropriated which I have not).
The original submissions filed by S that the division of AC and B's property and assets in 1998 should be investigated for fairness are also misconstrued. In the first instance, the period for which the Tribunal can make any order cannot be longer than the time from which the attorney began to operate under any EPA, which can only have been from 2008.[53] Further, any argument about the division of marital assets is not within the jurisdiction of the Tribunal. When it was submitted for B that through her application S was 'trying to do more that the Family Court would', S accepted and endorsed that proposition.[54]
[53] IT and DN AND MN [2018] WASAT 117at [69] citing KS at [22].
[54] Applicant's responsive submission filed 11 September 2023, page 7.
The case of EW, citing KS,[55] confirmed that the Tribunal should exercise a general supervisory jurisdiction in respect of the conduct of a donee of an EPA if circumstances require it.[56]
[55] EW at [17].
[56] EW at [94].
I do not consider the circumstances of this case require that I should exercise the discretion to order B to file accounts. In coming to that conclusion, I have considered the following.
The documents provided to the Tribunal with the application and in the course of the proceedings (which are numerous and have been largely gathered through the efforts of S and MC) are the type of records which might be produced by an attorney if an order was made under s 109(1)(a) of the GA Act. These and the other documents such as the settlement statement are already in the possession of AC (and S). These documents have enabled AC (with the assistance of S and MC) to analyse AC and B's finances over the time of AC and B's lengthy relationship and to come to their own conclusions about how those finances were managed. An order from the Tribunal would add little to the information already available to them.
B says she did not undertake any transactions using the 2008 EPA and therefore has no records. There are in fact no documents which show transactions undertaken by B as attorney for AC, including the most significant being the sale of their property.[57]
[57]Although the sale was initially to be conducted using the EPA this did not eventuate for reasons which are not necessary to relate here.
B says she did not use the 2008 EPA in the sale of vehicles or personal items which occurred in 2020 around the time of the sale of the property and has not kept any records as she says she did not understand that she would be required to do so.
Although, pursuant to s 107(1)(b) of the GA Act, an attorney is obliged to keep and preserve accurate records of all dealings made under the EPA, and consequently might be found to be in breach of that duty (if there was a transaction made under the power and the attorney had failed to keep a record of it), it is a relevant consideration for the Tribunal when exercising the discretion to order accounts to be filed under s 109(1)(a) if the attorney does not hold any records.[58] [59]
[58] BFO and Ors at [31].
[59] The Tribunal does not have jurisdiction to make findings or determinations regarding any allegation of a breach of the statutory duty imposed on an attorney to keep and preserve accurate records of transactions made under the EPA. Further if there is an allegation that an attorney has failed to act with reasonable diligence to protect the interests of the donor then that allegation too must be dealt with in another jurisdiction.
While it appears to be accepted by S that B does not hold any records, S argues that some records are held by others including the bank.
In EW, the Tribunal held that the words 'in connection with' found in s 109(1)(a) of the GA Act have a wider meaning than the words in s 107 of the GA Act which refer to transactions 'made under the power'.
It was held that 'in connection with' suggests a relationship but not necessarily a causal one and could include 'a temporal relationship between the execution of an EPA and the subsequent transactions made on behalf of the donor by the attorney'.[60] In that case, the Tribunal determined that 'once an EPA is executed in an unrestricted way then the dealings and transactions made for the donor by the person in whose favour the authority is given, are made in connection with the power' and must come 'within the supervisory ambit of the Tribunal by way of s 109 of the GA Act'.[61]
[60] EW at [81].
[61] EW at [86].
In EW, this had the effect of capturing all the transactions made by the granddaughter of EW from the date of execution of the EPA in the granddaughter's favour to EW's death. Those transactions included banking transactions which the attorney said were conducted pursuant to a banking authority which predated the EPA when the EPA had not been presented to the bank.
It was argued that EW remained capable until the time of her death, but the applicant asserted that her funds were misappropriated without her knowledge. That is essentially what is said here. It is not argued by S that AC is or was incapable, but that B 'lied' to AC about transactions she made and misappropriated his funds without his knowledge.
Since it is supported by the documents filed, I accept B's evidence that she operated AC's bank account pursuant to a banking authority made in 2005 and that the 2008 EPA was not presented to the bank until 2017.[62] The material before me shows that even after the presentation of the 2008 EPA to the bank, the pattern of transactions (and I infer the management of AC and B's financial affairs by B) was unchanged.
[62] When B says AC was gravely ill and in hospital and she says she was wrongly advised that the EPA would provide similar authority as an executor to operate his bank account if AC died.
In EW it was noted that in the case of a capable donor who does not lose capacity during the operation of an EPA, means that the control (and responsibility) of an attorney must be less than full control because the donor remains capable of undertaking transactions in his or her own right.[63] While the day-to-day management of their affairs was conducted by B, AC is reported (by both B and S) as buying motor vehicles over the period, and it seems he exercised control over his financial affairs at least to that extent. AC appeared to continue to direct the management of his affairs to some degree as is indicated by AC's demand that $10,000 be taken into him at the nursing home in 2021 and B's compliance with that request despite her own misgivings about the security of those funds.
[63] EW at [90].
Following EW, I find that the banking transactions conducted by B are captured as 'in connection with the power' particularly after the presentation of the 2008 EPA to AC's bank. However, in my judgment, this case can be distinguished from EW when determining whether to exercise the discretion to order accounts to be filed by the attorney due to the nature of the relationship which existed between AC and B. Despite AC's evidence to the contrary, I am satisfied that AC and B were in a de facto relationship with a joint household and joint expenses until 2018 and joint expenses including property expenses (for which both were liable) even after AC's entry into the nursing home. In contrast, in EW it was readily able to be identified that numerous bank withdrawals made by the granddaughter/attorney were likely not for the benefit of EW.[64]
[64] EW at [44].
I am not satisfied that in the circumstances of:
(a)a marriage like relationship between AC and B;
(b)AC's agreement with or acquiescence to the longstanding management of his affairs by B which predated the EPA; and
(c)no reliance on the 2008 EPA to conduct AC's affairs,
that further enquiry in respect of the operation of the 2008 EPA is required.
Therefore, I decline to exercise the discretion to make the order sought by S for the filing of records and accounts by B.
As I do not make the order on the application, pursuant to s 109(1)(a) of the GA Act, the application for the audit of the accounts so filed pursuant to s 109(1)(b) falls away.
For these reasons I make the following orders:

Orders

The Tribunal orders that:
GAA 2943 of 2022
1.The application is dismissed.
GAA 2944 of 2022
1.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
6 DECEMBER 2023