AI & Anor and Of - [2008] WASAT 87

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AI & ANOR and OF [2008] WASAT 87

MEMBER: MR J MANSVELD (MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)

HEARD: 20 DECEMBER 2007

DELIVERED : 18 APRIL 2008

FILE NO/S: GAA 2157 of 2007

BETWEEN: AI
OP
Applicants
AND
OF
Represented Person

Catchwords:

Guardianship and administration Administration The represented person's estate held jointly with her son, her attorney under an enduring power of attorney Attorney not to profit from a transaction unless a fully informed consent has been given by the donor Need for an administrator Administrator appointed Enduring power of attorney inconsistent with the functions of an appointed administrator Enduring power of attorney revoked

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64(1), s 68, s 69, s 84, s 108(1)(a)
State Administrative Tribunal Act 2004 (WA)

Result:

An administrator is appointed

Category: B

Representation:

Counsel:

Applicants:     Mr D Jones
Represented Person       :     N/A
Interested Party             :     Mr B Wheatley

Solicitors:

Applicants:     Vincent Partners
Represented Person       :     N/A
Interested Party             :     Mossensons

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

DW and JM [2006] WASAT 366
FS [2007] WASAT 202
KS [2008] WASAT 29
NCP and HJP [2005] WASAT 177
VJE [2005] WASAT 15

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An application for administration was made for an elderly woman who was residing in a nursing home. She suffered from dementia.
The application was made by two of the woman's grandchildren.
The woman's estate was currently being managed by her son under an enduring power of attorney.
The applicants submitted that the son was not managing the woman's estate in her best interests. In particular they said that he had sold the woman's property unnecessarily. They had offered to assist financially so that the property need not be sold but the son had refused their offer.
The property was bequeathed to the applicants under a will purportedly made by the represented person in 2004.
The son said that the property needed to be sold to provide for an accommodation bond to be paid by the woman to enable her to live in an aged care facility. He had refused the grandchildren's offer because he said they had not assisted previously and it was not culturally appropriate to accept help.
The son said he had not been made aware of the 2004 will when it was made. He submitted that the only reason the applicants had made the application was to protect their inheritance.
In the course of the hearing the son's evidence was that he had invested the net proceeds of the sale of the woman's property jointly in his name and the name of the woman. He said this was done under advice as the most practical way in which the funds could be managed. Other funds of the woman had been invested by the son in his name only and in the name of his company.
The son had also arranged for cash gifts to be made to him from the woman's estate, he said with her consent.
The son said his mother still made her own decisions.
The Tribunal found on the evidence that the woman was no longer capable of making reasonable judgments about her estate.
The Tribunal found that the conflict between the applicants and the son was mainly to do with who was (or deserved to be) the ultimate beneficiary of the woman's estate.
The Tribunal found that the conflict clouded the judgment of both the son and the applicants when they considered the woman's estate and how it should be managed in her best interests.
The Tribunal therefore decided to appoint the Public Trustee as the woman's administrator and to revoke the enduring power of attorney.

Background

These reasons relate to an application for an administration order for OF (represented person) an 87‑year‑old woman who has resided in a nursing home since March 2007.
The application has been made by the represented person's grandchildren, AI and OP (applicants).
The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
The hearing was attended by the applicants, who were represented by counsel, and the represented person's son, FF, who was also legally represented.
At the time of the hearing FF was the represented person's attorney under an enduring power of attorney executed by her on 27 January 2007.

Decision of the Tribunal

The Tribunal has decided to appoint the Public Trustee as the represented person's plenary administrator and to revoke the enduring power of attorney executed on 27 January 2007.
FF requested reasons for the decision on 14 January 2008.
These reasons are produced pursuant to the relevant provisions of the State Administrative Tribunal Act 2004 (WA).

Principles of the GA Act

The principles to be observed by the Tribunal in dealing with proceedings commenced under the GA Act are set out in s 4 of that Act.
"(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(2)(a)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b)Every person shall be presumed to be capable of ‑
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.
(d)A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of decision and action.
(f)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person’s previous actions."

The represented person's capacity (evidence and submissions)

The Tribunal has a report dated 3 November 2007 from the represented person's general practitioner of 12 months.
The general practitioner states that the represented person has a diagnosis of dementia and that the illness is progressive. He assesses her as not being able to make reasonable decisions in relation to her financial affairs or capable of executing an enduring power of attorney.
The general practitioner further assesses the represented person as likely not to be able to make a contribution to the hearing.
The Tribunal has a report from the administrator of the nursing home dated 5 November 2007.
In respect of the represented person's mental state, the assessment of the nursing home is that she is "very confused [and] often lost. Responds well to visitors[,] converses in Italian [and] is very difficult to understand. Loves visitors".
In terms of the represented person's ability to make financial decisions the administrator of the nursing home states, "cannot make any decisions due to advanced dementia".
The administrator of the nursing home further states that the represented person's son, FF, visits regularly and that her granddaughter also visits.
The applicants support the assessment of the general practitioner and nursing home. They say the represented person requires an administrator because of her "mental impairment". The applicants are of the view arising from their visits to the represented person that: "… her comprehension levels are not adequate." [T:16]
AI (granddaughter and applicant) states that the represented person still asks every week to be taken to her home. She is told that she no longer has her house which she does not believe. When told that her property has been sold (by FF in about the middle of 2007), she responds that FF had no right to sell her home because she is still alive.
Counsel for the applicants states:
"Of course, she talks about going home and they keep on telling her that there is no home but it just doesn't register." [T:9]
FF states that in respect of the sale of the represented person's home, that:
"She didn't have much input into that at all." [T:7]
The applicants say that the represented person entrusted them with her financial affairs until about five or six years ago when that was taken over by FF. AI states that she used to take the represented person shopping and banking and that she found out FF had taken control when the bank refused to accept the represented person's signature on a deposit and withdrawal slip. She says she was advised by bank staff that FF had removed the represented person's authority from the bank records.
FF says that before he took over the management of the represented person's finances a neighbour of hers would take her to the bank. He states:
"The next door neighbour used to take my mother to the bank every Friday to collect the money. Sometimes I used to see in the book, $400. I ask[ed] my mother, 'Where's the $400?' She couldn't tell me where the $400 went. It was then that I took over her management fund ..." [T:53]
The applicants also say that whilst in hospital undergoing rehabilitation (end of November 2006 to early March 2007), the represented person was always confused and frightened. She could recognise family but did not know where she was or why she was in hospital. She did not realise that she had had an operation. She would speak to the applicants about things in the past. She was always sedated.
FF does not accept that the represented person was in the state contended by the applicants when she was in hospital. It is submitted by FF that he explained the January 2007 enduring power of attorney to the represented person in Italian and that she knew exactly what she was signing. Counsel for FF states:
"Reluctantly she had to go into a nursing home [9 March 2007], but until the second fall, the second breaking her hip, until she went into [hospital] there was according to my instructions no real problem. She was assessed as at that date of having a problem. [FF]'s instructions are that she still understood what she was doing, she still understood concepts, even though she had a limited memory, short‑term memory." [T:51]
In respect of the need to move to a nursing home, counsel for FF states that the represented person was briefly discharged into the care of FF on 7 March 2007 but that could not be sustained given that FF and his wife both work and the represented person was in "… need [of] that constant supervision, or constant care." [T:46] Counsel submits that it is normal for a son not to accept that his parent is failing in some way and that at the time FF found it difficult to "accept the diagnosis even that his mother had some sort of dementia". [T:51]
FF does not support the current assessment of the general practitioner and nursing home. He says that he visits the represented person every day and converses with her in Italian. The general practitioner is said to come to the nursing home only once or twice a week, that he does not interview the represented person (he is said not to be able to speak Italian) and that he just goes "on notes of what the carers tell [him]." [T: 5]
FF puts it this way:
"… She has ‑ she has ‑ not has Alzheimer's disease, she has not got very, very bad dementia, she has got mild dementia, and also she has short[‑term] memory. This is the problem. I can converse with her like you and I can. She understands everything. Quarter of an hour later, 10 minutes later, she doesn't remember that, but one hour or two hours later she might come back to what I have said. So the situation right now is that I can converse with her, yes, and she has got short[‑term] memory.
…
My mother ‑ if I ask her a question, 'Do you want to do this, do you want to ‑ can I do this, can I do that?' she will say yes or no. She is capable of doing that." [T:5]
When asked whether the represented person can fully manage her own affairs, whether she understands the amount of funds she has in her bank account(s) and the cost of her nursing home fees, counsel for FF states: "She does need assistance." [T:6]
And FF states:
"She doesn't know that, because she can't remember that. I have been managing my mother's affairs for ‑ all her affairs for 15 years, and when my father was alive beyond that. So it's nothing new." [T:6]
FF refers to a mini mental test examination purportedly undertaken by the represented person during an assessment by the relevant aged care assessment team sometime after 25 November 2006 when the represented person was admitted to hospital after breaking her hip in a fall (when trying to get into a motor vehicle). He states that his mother scored 14 out of 30 on that test which in his view put her on the "borderline" of dementia. FF did not provide any documentary evidence of the test or the aged care assessment report to the Tribunal.
Counsel for the applicants submits that a score of 14 out of 30 on a mini mental state examination indicates more than the mild dementia asserted by FF.
FF refers to a number of assessments by the aged care assessment team, the first two which he did not accept because he was not present, the third conducted at the nursing home with him present and an interpreter, and a recent assessment at which the represented person was assessed as needing high level care.
The applicants say that the represented person is in a secure unit at the nursing home and that she is not allowed to leave the unit of her own accord. FF states that the area in which the represented person lives is secure but within the area people are free to move around. He says most of the residents are able to leave the unit because they have the code to the locked door.
FF submits that he can converse with the represented person and obtain reasoned decisions from her. He says that if she is asked a question as to what to do she understands what is being put to her, although he states that she will likely forget the question soon afterwards.
Counsel submits:
"Well, [the represented person] understands ‑ if she's asked a question as to what to do and it's put to her[,] she understands that, and that's as far as the submission goes, but she does need assistance. It's conceded that." [T:8]
FF submits that the question of the represented person's capacity should be settled by her being assessed either by an Italian speaking medical practitioner or by a medical practitioner with an interpreter.

The current management of the represented person's estate

FF states that the represented person's estate comprises the following: a bank deposit of approximately $379,000 held jointly by he and the represented person and which includes the net proceeds of the sale of her property after payment of the accommodation bond at the aged care facility of $128,500. Her other assets are a fund of at least $15,000 previously held as the "funeral money that she had saved" and which FF says he has partly invested in shares which are held in his name and his "company's name", and another bank account jointly held by he and the represented person with a balance of $5,000.
FF states that the represented person is in receipt of the Australian aged pension and the Italian pension and that the Australian pension has been reduced to half of the full payment because of the amount of the funds held on deposit from the sale of her property. The represented person earns interest on the invested funds which, together with the pension income, help meet her care and other personal needs.
In response to the question of why the deposit funds of $379,000 are held jointly with the represented person, FF states:
"The reason why it was suggested by the bank to have it in joint names was [that it was] easy for me to use the money in regards to the needs ‑ hairdresser, medication, every month, orthopaedic, dentist, physio, any of these things.
…
Just easy to get access." [T:20]
When it was put to FF that this was not necessary and that he could have used his authority as the represented person's attorney, under the enduring power of attorney, to manage her funds, he states:
"That's right, the enduring power ‑ without that you can't do it, but I had ‑ my mother 15 years go [sic], she had me in her bank book account when she was ‑ 15 years ago, so nothing changes. This is not a big deal for me, this enduring power of attorney and all this. It's nothing at all." [T:20]
Documents submitted to the Tribunal show that FF signed the contract of sale and transfer of land for the sale of the represented person's property as her attorney under the enduring power of attorney.
FF reports that the $379,000 bank deposit derives from the sale of the represented person's property for $530,000 less the agent's commission, the accommodation bond of $128,000 and two gifts of $10,000 each made to FF.
FF states that he was advised by Centrelink that the represented person can make gifts to him totalling $30,000 over a period of five years, to reduce her estate and to therefore increase her fortnightly pension. Gifts of $10,000 have been made to FF in June 2007 and July 2007.
In response to the question of the represented person's capacity to consent to the gifts, FF states:
"As I said to you, I can talk to my mum like you and I, but ‑ I can ask her, she said yes or no, that's it. It's her priority what she wants to do with it." [T:40]
Counsel for FF submits that as the represented person's attorney, FF is not prevented from making gifts from her estate and cites a decision of the Tribunal, DW and JM [2006] WASAT 366 as support for that contention.
In respect of the investment of the represented person's "funeral money", FF states that the represented person was only earning 1.76% per annum interest on that bank account and he therefore decided to invest those funds in shares and other investments. The investments are not held in the name of the represented person because:
"It cannot be in her name, because when you're doing transactions it's very difficult to do all these things." [T:35]
FF states that the amount invested is the "funeral money" of $15,000 plus what had accumulated in that bank account from the represented person's Italian pension and "[she] had other money in there".
FF states that the investment entities do not know that the represented person has an interest in the investments and that the evidence of her interest is:
"I invested a certain amount and on a chequebook it says, '$10,000, my mum's shares,' that's it." [T:36]
When FF was asked that if the represented person were to die how her interest in her estate would be determined, he states: "That will all come out with the ‑ in a court." [T:36]
FF says that it would be of no concern to him if the represented person's assets were in her name only.

The need for an administrator and who should be appointed (evidence and submissions of FF)

FF submits that the application for an administration order has been made not out of a concern for the financial circumstances of the represented person but rather because of the applicants' concern to ensure the security of their inheritance.

The applicants' mother is the deceased daughter of the represented person. On 2 November 2004, the represented person purportedly made a will (the represented person's spouse had died in 1995) leaving her entire estate to the applicants in equal shares. In a letter accompanying the application for administration, the applicant's solicitor states: "This was in recognition of what their late mother would have received had she survived our client's grandparents."
FF states that the will of 2 November 2004 was made without any notice to him, as the only son of the represented person, and he has never received a copy of it.
On 8 November 2004 the represented person was issued with a new title to the property originally owned by her and her late spouse as joint tenants. FF states that the application for survivorship was lodged by one of the applicants (OP) and that the represented person would not have understood what is was she was signing. It is FF's submission that the represented person would never have made such an application out of respect of her deceased husband.
FF submits that this is a demonstration of the applicants' real concern which was to make sure that the property was in the name of the represented person and then to ensure that the will could take effect (or now to ensure that the proceeds are secured).
FF contends that the intention of the applicants is further highlighted by them inappropriately lodging caveats against the represented person's property on 2 April 2007 in an attempt to prevent its sale (the caveats were allowed to lapse).
Just prior to the lodging of the caveats, on 25 March 2007, FF and OP had a discussion (confirmed in a letter by OP to FF dated 16 April 2007), at which the applicants offered to assist the represented person so that the property did not need to be sold. Apparently the discussion was heated and agreement was not reached. FF states that his position was clear; the property needed to be sold, his mother did not want assistance from outsiders, she could deal with her own affairs and the moneys from the sale of the property would fund her place in an aged care facility.
FF puts it this way:
"… The applicant has never come forward giving her anything, not even $1, right, before this, this selling of the house. Everything generated from the selling of the house. Now they all come forward. They all want to give me money. They all want to give my mother money. Never before they gave her any money [sic]. Why do they come out now? That's the question.
Before then, my mother being an Italian, as we are, we never take money from our friends, from our relations, if we have money, so that offer of the applicants giving to my mother, she would reject that, because she does not want [a] donation from anybody, not from me ‑ even if I told her that I would put the money she would say no [sic]. The applicant did come to me and say, 'Yes, I want to give you $128,000'. I said, 'Yeah, that's very good. Where have you been for the last 11 years? You want to give her money now. What happened before? Why you haven't come out before?' Why haven't they ever come out before, saying I was not looking after my mum properly five years ago? Why do they come out now and say five years ‑ now that they have concern? They are concerned because they think I'm going to take my mother's money. That is their concern. They are not concerned about my mother's wellbeing at all." [T:53]
FF states that it has never been the represented person's expressed wish to him that the property be left to the applicants or that it be left in perpetuity. She has never spoken to him about the will (the applicants say that their grandparents used to tell all their Italian friends and family that their house belonged to the applicants because FF received his share of their estate when he got married).
FF also states:
"… They took my mother to the little corner and they changed the will without my knowledge. Why did they do that? My mother was not going to go to them and say, 'I want to change my will because your father said I have got to give you the house.' No way in the world she would say that. No way in the world. I can swear on the Bible, she would never say that, because if my father put this there[,] she would not touch it. That is the custom of Italian …" [T:62]
FF states that the represented person first executed an enduring power of attorney in favour of him on 10 January 2006. She executed another enduring power of attorney appointing him as her sole attorney on 27 January 2007. FF says this was done because he had lost the original of the 2006 instrument.
The enduring power of attorney made on 27 January 2007 is signed by the represented person with her surname before her first name which is not, according to FF, her usual signature. Counsel for FF states that: "… She may have been a bit confused as to that." [T:48]
In documentation provided to the Tribunal by the applicants there is a copy of an enduring power of attorney dated 27 January 2007, lodged with Landgate, in which the represented person's signature appears with her surname after her first name. The witnesses are the same as on the enduring power of attorney signed on the same day and referred to above.
FF says that any dealings he has had with the represented person have been in Italian; he speaks the language fluently. It is submitted that there has been no misunderstanding of any documents that he has got the represented person to sign and that she knew what she was signing because he explained the documents to her.
FF submits that the enduring power of attorney executed by the represented person in January 2006 is evidence of her intention as at that time to place her financial affairs under his supervision and this was confirmed by the execution of the enduring power of attorney made in January 2007. He says that the enduring power of attorney is a clear expression of the represented person's wishes.
FF states that he is the only person who should look after the represented person's finances. He had looked after his mother and father since he was a child, always taking them to medical appointments and taking time from work to do so. When his father died in 1995 his responsibility for the represented person increased. He states:
"… Every morning I pick her up, every night I pick her up, take her to my house. She eats there, she sleeps there, sometimes she showers there, and I take her back to her home, every day, seven days a week. After that I took care of her finances …" [T:53]
FF states that caring for the represented person for 11 years in this way meant that he could not go on outings with his family because his mother did not want to be left alone. He has a daughter who lives in Melbourne and he and his wife would need to visit her separately because of the care needs of his mother.
FF submits that he could not have done any more for the represented person and that he is the only person she can talk to. He submits that the applicants speak only a little Italian (AO disputes this saying that she speaks fluent Italian and can write in that language).
FF states that he is a Justice of the Peace and has provided the Tribunal with references as to his good character and the care and support he provides the represented person.
FF submits that the funeral funds will be used for the represented person's funeral, the funds invested jointly are for the benefit of the represented person solely and that the gifting to him was done with the consent of the represented person. FF states that he will maintain separate records and will separate out the represented person's funds.
Counsel for FF cites two decisions of the Tribunal, VJE [2005] WASAT 15 and NCP and HJP [2005] WASAT 177 as supporting FF's contention that the need for protection of an order for the represented estate is not required. The enduring power of attorney (the one of 27 January 2007) is available, it is a less restrictive alternative to the making of an order for administration and it is an expression of the represented person's wishes.

The need for an administrator and who should be appointed (evidence and submissions of the applicants)

The applicants state that they have been like children to the represented person and her late spouse. OP states:
"… My mother, my uncle's sister, died when I was born in 1969 and we resided with my grandparents for quite a number of years, and so we were always in a parent relationship. So that's why there's ‑ it's probably a little bit unusual, but whilst we're [sic] grandparents, to us they're our parents, and my grandparents entrusted us with all their financial affairs and we know quite a bit about their financial affairs." [T:24]
The applicants submit that the represented person is no longer capable of managing her estate and make particular reference to the sale of her home, about which they say she lacks awareness. The home is willed to the applicants and they say it was (and remains) the wish of the represented person that the property not be sold.
The applicants question the validity of the enduring power of attorney executed by the represented person on 27 January 2007, as they contend she was in hospital and not capable at the relevant time, and also that she could not have understood the document as it was not translated into the Italian language.
AI says that upon her advice the represented person made FF a signatory on her account in case she became unwell. This was subsequent to the represented person asking AI to be that signatory. AI states:
"… So that's why maybe he has been signatory for maybe 10 years. That was on my insistence, but for the last six years he has run her affairs without giving her any money." [T:24]
OP states:
"… Up until probably only five or six years ago my grandparents entrusted us with their financial affairs and we know quite a bit of their financial affairs. In fact, we often did their banking for them as well, and it wasn't until recently, five, six years, perhaps, that we found out that the account changed from my nanna into both my uncle and my nanna's name, and that's the last time we know anything about their ‑ or her financial affairs …" [T:23]
The applicants state they approached FF at the time the represented person's home was being sold in about the middle of June 2007 (OP says he only found out about the sale from a newspaper advertisement), and offered to assist FF with a loan to cover the accommodation bond payable by the represented person for her placement in an aged care facility (the requirement to pay the bond of $128,500 was purportedly the reason for the need to sell the property).
OP says after he found out about the represented person's property being placed for sale he noticed that:
"…the next week the price had dropped significantly, which was a seller's market, and [the property] was sold." [T:29]
The applicants say that FF did not accept their offer of assistance and submits that he unnecessarily disposed of the family home, which was of considerable value to the represented person.
They submit that the sale of the represented person's property by FF led to the represented person's pension being reduced by half. In addition the funds from the sale were placed in a bank account earning interest but producing no capital appreciation.
AI says that FF purchased the represented person an LCD television after she moved into the nursing home which she cannot use and which AI says she has never seen switched on (FF says he purchased the television because the represented person deserved it and he turns it on for her every day. He says he has also purchased a $2,000 lounge chair for her comfort).
The applicants state that AI has assisted the represented person financially over the years by providing funds for shopping when she did not have any money available to her by FF and on occasion paying the represented person's water rates and other accounts.
The applicants state that FF is aware of the 2004 will made by the represented person - in fact, he had discussion with his father about it. FF allegedly objected to the applicants being beneficiaries and it is submitted that a question needs to be raised as to why FF is neither a beneficiary under the will nor is he the executor of the will.
In respect of the gifting, the applicants dispute FF's rationale that the reason for the gifts is to increase the represented person's pension but rather: "… the real point is he is gifting himself from his mother's estate $20,000". [Counsel for applicants at T:57]
Counsel for the applicants submits that the placing of the represented person's assets in joint names with FF is "disturbing" [T:57] and states:
"In the overall scheme of things [FF]'s attitude towards what is in his mother's financial interests I would suggest is not to be encouraged. [FF]'s approach to his mother's assets is as if they are his assets, and he is not the appropriate person to be appointed as administrator." [T:58]
It is the applicants' submission that the Public Trustee should be appointed the administrator of the represented person's estate.

The represented person's capacity (the Tribunal's findings)

Before the Tribunal considers whether the represented person is in need of an administrator it must be satisfied that she 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 (s 64(1)(a) of the GA Act).
A mental disability is defined to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia (s 3 of the GA Act).
A person is presumed to be capable of making reasonable judgments in respect of matters relating to his or her estate until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b) ‑ see above).
The represented person suffers from dementia. There is no dispute in the evidence either to this primary diagnosis or to the prognosis stated by the general practitioner that the condition is progressive.
The Tribunal is therefore satisfied that the represented person suffers from a mental disability as defined in the GA Act.
The meaning of s 64(1)(a) of the GA Act was considered by the Full Tribunal in FS [2007] WASAT 202 at [99] to [110]. It was found that the operation of s 64(1)(a) requires the Tribunal to:
"… consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances." (at [110])
It is common ground that as a consequence of her dementia, the represented person suffers from an impairment of her memory, in particular her short‑term memory and this is accepted by the Tribunal.
FF's evidence indicates that the problem the represented person has with her memory is not a recent development given he took control of her funds five or six years ago when she could not tell him to what use certain withdrawals from her bank account had been put.
In making its finding the Tribunal gives weight to the admission by FF that the represented person does not understand or know the amount of funds she has in her bank accounts or the cost of her nursing home fees. Although FF states that this is not a new phenomenon in the context of him managing her affairs for many years, he also states she does not know because "… she can't remember that"; the context here is one of the represented person not being able to remember this information.
FF's reference to the mini mental state examination test undertaken by the represented person sometime after November 2006 cannot be given any weight because that assessment is not available to the Tribunal.
FF submits that the Tribunal should not rely upon the report of the represented person's general practitioner as he does not speak Italian and is said to base his assessment on what the nursing home staff tell him.
Whilst there is some merit in the argument that a problem of communication due to language differences is a barrier to assessment, the nursing home report makes reference to the represented person being very confused and that she often gets lost within the facility. The latter is at least an observable activity not dependent on language and which the Tribunal takes account of in its finding.
The Tribunal also relies upon the fact that the represented person resides in the secure part of the nursing home and on FF's evidence that she is in need of constant supervision and care (the reason given why FF could no longer look after her at home).
The Tribunal is satisfied on all the evidence that the represented person's dementia and consequent memory impairment affect her ability to retain and process information.
In the context of the represented person's estate of which she appears to have little knowledge (she does not know the extent of her funds and she believes she still owns her property), the Tribunal is satisfied that her mental disability prevents her from making reasonable judgments about it.

The need for an administrator and who should be appointed

It is clear to the Tribunal that the applicants and FF are in conflict and have been for some time and the underlying reason appears to be about who is (or deserves to be) the ultimate beneficiary of the represented person's estate.
The Tribunal finds that the conflict clouds the judgment of both FF and the applicants when they consider the represented person's estate and how it should be managed in her best interests.
The Tribunal does not accept FF's evidence that the way in which the represented person's estate is currently structured has to do only with ease of management of the estate.
Despite that finding the Tribunal accepts that FF is devoted to the represented person and that the applicants have a relationship with her that is like a parent and child.
The evidence is that the majority of the represented person's estate as represented by cash funds is held jointly with FF in a bank account. This includes the balance of the sale proceeds of the represented person's property. That property is bequeathed to the applicants by a will purportedly executed by the represented person on 2 November 2004.
The general position at law is that on the death of one of the joint parties to a joint account, the legal interest in that party's share of the funds in the account vests in the survivors (Butterworths Australian Legal Dictionary 1997:643). In the current circumstances that would be FF.
The remainder of the represented person's estate (the so called "funeral money") is held solely in FF's name or that of his company. The Tribunal finds this highly inappropriate.
At the time of these transactions, FF was the represented person's attorney under an enduring power of attorney she executed on 27 January 2007 (or previous to that instrument, the one executed on 10 January 2006).
FF used his authority as attorney to sign the contract of sale (20 April 2007) and the transfer of land (12 June 2007) for the sale of the represented person's property. It was therefore open to him to use his authority as attorney to invest the net sale proceeds in the name of the represented person and to manage the funds as her attorney. It was not necessary or appropriate to invest the funds jointly with the represented person given the meaning of the ownership of a joint bank account (see above).
In any case, in acting as the represented person's attorney in the sale of her property it was not open to FF, as her agent, to profit from the transaction (by investing the funds jointly) without her fully informed consent (DW and JM [2006] WASAT 366 at [29] and more recently, KS [2008] WASAT 29 at [52]).
In this regard, FF says in his evidence that the represented person did not have much input at all into the sale and the Tribunal finds that it was unlikely that the represented person was able to give her fully informed consent to that transaction and how the funds were then used, given her cognitive impairment and her likely inability to navigate the conflict between FF and the applicants.

The same can be said for the gifts totalling $20,000 made to FF. The represented person would have to have given her fully informed consent; otherwise, as attorney, it was likely not open to FF to make those gifts to himself under that authority.
In proposing that he be allowed to continue to manage the represented person's estate, FF says that he will disentangle the represented person's assets from his own.
This does not assist FF in his submission to the Tribunal but instead adds weight to the finding that it has been FF rather than the represented person who has made the decisions about her estate.
For all the above reasons, the Tribunal is satisfied that the represented person requires someone with the formal authority to manage her estate but that the existing enduring power of attorney in favour of FF is not a suitable instrument for doing so.
The Tribunal is therefore satisfied that the represented person is in need of an administrator (s 4(2)(c) and s 64(1)(b) of the GA Act).
The need for an administrator for the estate of the represented person has been decided on its own facts, as were the two cases cited by FF in his submission that the represented person is not in need of the protection of an order (see above). The cases cited by FF therefore are of no particular benefit to this Tribunal in its determination.
Section 68 of the GA Act guides the Tribunal in the determination of who should be appointed administrator of the represented person's estate. The person must consent to the appointment, act in the best interests of the represented person and otherwise be suitable to act as administrator.
In deciding the suitability of a person, the Tribunal shall take into account, as far as possible, the compatibility of the person with the represented person and her guardian (if any), the wishes of the represented person and whether the person will be able to perform the functions of administrator (s 68(3)).
FF has proposed himself as administrator; the applicants are not proposing themselves but submit that the Public Trustee should be appointed.
The GA Act provides that the wishes of the represented person must be considered in the determinations of the Tribunal but that the primary concern of the Tribunal is her best interests (s 4(2)(a), s 4(2)(f) and s 68(3)(b)).
The evidence before the Tribunal, which is accepted, is that the applicants have, in the past, played a role in the management of the represented person's financial affairs and that in recent years this role has been entirely undertaken by FF.
It is accepted by the Tribunal that the execution of an enduring power of attorney by a capable person is an expression of that person's wishes in respect of who should manage his or her estate if and when capacity is lost.
As already mentioned in these reasons, the Tribunal is not satisfied that either FF or the applicants can sufficiently divorce themselves from the conflict between them as regards the question of the ultimate beneficiary of the represented person's estate, so as to be able to deal with her estate in her current best interests.
The management of the represented person's estate by FF raises sufficient doubt for it not to be in her best interests to continue.
For these reasons the Tribunal finds that FF is not suitable to be the represented person's administrator and nor would be the applicants, were they proposing themselves for that role.
However, the represented person might have expressed her wish, the Tribunal's view of her best interests must prevail.
The Tribunal has therefore decided to appoint the Public Trustee as the administrator of the represented person's estate.
The administrator is to be given plenary powers as this, in the Tribunal's view, reflects the needs of the represented person (s 69 of the GA Act).
The enduring power of attorney dated 27 January 2008 by which the represented person appointed FF to be her attorney is, the Tribunal finds, inconsistent with the plenary authority given to the administrator and is therefore revoked (s 108(1)(a) of the GA Act).
The Tribunal has decided to review the order for administration after five years, the maximum period available to it under the GA Act (s 84).

Order

1.The Public Trustee of 565 Hay Street, Perth, Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The enduring power of attorney dated 27 January 2007 by which [the represented person] appointed [FF] to be her attorney be revoked.
3.This order is to be reviewed by 20 December 2012.

I certify that this and the preceding [146] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER