AM - [2020] WASAT 162

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   AM [2020] WASAT 162
MEMBER:   MR J MANSVELD, MEMBER
HEARD:   26 AUGUST 2020 AND 21 SEPTEMBER 2020
DELIVERED          :   23 DECEMBER 2020
FILE NO/S:   GAA 2202 of 2020
GAA 2208 of 2020
GAA 2209 of 2020
AM
Represented Person

Catchwords:

Guardianship and administration - Enduring power of attorney - Capacity - Mental disability - Dementia - Paranoia - Ability to make reasonable judgments - Conflict - Conflict of interest - Whether to use enduring power of attorney or administration order - Administration order made

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A, Pt 6, s 68, s 80, s 86, s 97(1)(b)(iii), s 108, s 109(1)(a), s 109(1)(b)

Result:

Administration order made and enduring power of attorney revoked

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

History

AM is 86 years of age. She lives in a retirement village complex (retirement village) and receives weekly domestic assistance and social support visits from a home care agency in addition to visits and support from family members.
AM has three children, RM (son), TW (daughter) and MM (daughter). She has a daughter-in-law, KM (spouse of RM), soninlaw, GW (spouse of TW) and grandson, JM (son of RM and KM) who take an active interest in her welfare.
AM's husband (Mr M) is deceased.
AM first came to the attention of the Tribunal in 2010 when TW and MM were appointed the joint plenary administrators of her estate and her joint limited guardians (2010 orders).
The administration and guardianship orders were made under the Guardianship and Administration Act 1990 (WA) (GA Act).
Upon periodic review of the 2010 orders in February 2016, the administration order was revoked and the guardianship order confirmed (2016 orders).
On 3 March 2016, AM made an enduring power of attorney appointing RM and JM (attorneys) as her joint and several attorneys (EPA). The authority of the attorneys was not subject to any conditions or restrictions. The EPA was able to be used from the date of execution and acceptance and was witnessed by a general practitioner.
TW sought review of the 2016 orders by the Tribunal under s 17A of the GA Act but subsequently withdrew the application.
Upon periodic review of the 2016 orders, on 3 November 2017 the Public Advocate was appointed AM's limited guardian (Public Advocate or delegated guardian) to make decisions concerning where and with whom she was to live and to determine the services to which she should have access. TW and MM were appointed joint limited guardians (medical guardians) to make AM's treatment decisions (2017 orders).
The 2017 orders were set to be reviewed by 3 November 2022.

Current applications

In June 2020 TW and MM made the following applications under the GA Act:
(a)an application under s 86 for review of the 2017 orders;
(b)an application for the appointment of an administrator of AM's estate;
(c)an application under s 109(1)(a) concerning the EPA; and
(d)an application under s 109(1)(b) concerning the EPA.
At a directions hearing on 1 July 2020, leave was granted to TW and MM to withdraw the application for review of the 2017 orders.
At the hearing on 21 September 2020 leave was granted to TW and MM to withdraw the applications under s 109(1)(a) and s 109(1)(b) of the GA Act on the undertaking by the attorneys to provide them with certain documents.
The remaining application for determination was for the appointment of an administrator of AM's estate and for the Tribunal to revoke the EPA pursuant to s 108 of the GA Act (administration application).
The administration application was referred to the Public Advocate for investigation and report pursuant to s 97(1)(b)(iii) of the GA Act.
The administration application was heard over two days on 26 August 2020 and 21 September 2020.
The decision was reserved.

Relevant legislation

Administration applications are considered under Pt 6 of the GA Act, estate administration.
The principles to be observed by the Tribunal are set out in s 4 of the GA Act.
Relevantly:
The primary concern of the Tribunal is the best interests of AM.
In considering the administration application the Tribunal shall, as far as possible, seek to ascertain the views and wishes of AM as expressed, in whatever manner at the time, or as gathered from her previous actions.
AM is presumed to be capable of managing her own affairs and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.
The Tribunal cannot consider appointing an administrator of AM's estate unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
Mental disability is defined in the GA Act to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to AM the Tribunal must further determine whether she is in need of an administrator. If the needs of AM can be met in a manner less restrictive of her freedom of decision and action then orders should not be made.
If the Tribunal decides that AM is in need of an administrator of her estate it must then decide what authority should be given to the administrator, who the administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years.
If a limited administration order is made, the order must place the least restriction necessary on AM.
Under s 108 of the GA Act, The Tribunal can revoke an EPA on the making of an administration order. Where an administration order is made and the operation of an EPA would be inconsistent with the functions of the administrator, the Tribunal must revoke the EPA or vary it to remove the inconsistency.
In deciding who may be appointed administrator, s 68 of the GA Act requires the Tribunal to find that the proposed administrator (an individual over 18 years of age or a corporate trustee which includes the Public Trustee), will act in the person's best interests and be otherwise suitable to act. The Tribunal is to take into account as far as is possible, the compatibility of the proposed administrator with the person and appointed guardian, the wishes of the person and whether the proposed administrator will be able to perform the functions vested in them.

The 2017 orders

To the extent that the proceedings in 2017 are relevant to the matters raised in these proceedings, it is instructive to refer to some of the findings made by the learned member.
In particular:
(a)the Tribunal was satisfied that AM suffered from a delusional disorder which could (and had) become acute from time to time but at June 2017 the medical evidence was that she was not suffering any psychosis and the disorder was not impacting on her ability to exercise full and proper judgment (ts 15, 3 November 2017);
(b)there was no evidence that the attorneys had done anything other than pay her accounts and act under her direction (ts 16, 3 November 2017); and
(c)AM's retirement from the business partnership established by Mr M and her, her retirement as director of various companies and the disposition of the partnership interest to RM were capable decisions consistent with her and Mr M's intentions (ts 17, 3 November 2017).

Documents before the Tribunal

The following documents have been filed with the Tribunal in addition to the application:
•the EPA;
•hospital discharge summary 18 June 2018 to 17 July 2018 (Discharge Summary);
•November 2019 Dr DJ, Senior Medical Officer and Dr KW, Consultant Psychiatrist to Dr TM, AM's general practitioner;
•22 January 2020 letter from Dr DJ to Dr TM;
•14 April 2020 letter from Dr KW to Dr TM;
•11 June 2020 Dr TM's medical report;
•25 June 2020 service provider report by a registered nurse/case manager at the retirement village;
•3 October 2019 Centrelink form detailing AM's income, assets and debts signed by RM;
•statement of assets and liabilities and the income and expenditure of AM submitted by the attorneys pursuant to an order of the Tribunal dated 1 July 2020;
•18 August 2020 submission by GW;
•21 August 2020 report of the Public Advocate;
•23 August 2020 letter from AM (AM letter).

AM's estate

The attorneys state that AM's estate comprises:

The unit at the retirement village (retirement village unit) $420,000

Half-share in a suburban property (suburban property) $350,000

Third share in a block in a rural town $23,000

Third share in a property in a rural town $83,000

Third share in a unit in a rural town (collectively the rural properties) $100,000

Bank funds $110,000

AM receives the full rental income on the suburban property. She has not received any rental income on the rural properties since late 2017.
AM does not have any liabilities.
The bulk of AM's income is derived from the suburban property and her expenditure is largely related to the retirement village unit and property costs of the suburban property. For the year ending 30 June 2020, AM's income exceeded her expenses by about $6,000.

AM's capacity, evidence and submissions

In November 2019, Dr DJ and Dr KW wrote to Dr TM. In 2015 AM had been reviewed by a psychiatrist and there was the suggestion of patchy executive dysfunction. In 2016 AM had scored 23/30 on a Mini Mental State Examination (MMSE). She believed at the time that people were stealing from her home.
AM was seen at her retirement village unit. AM focused on her belief that the retirement village had stolen $70,000 from her. She gave a coherent account of her childhood and time in her country of birth. There was no obvious psychosis. Cognitive testing did not take place in the belief AM would not be compliant.
The impression was of a likely diagnosis of dementia primarily with executive dysfunction, poor judgment and limited insight.
Dr DJ confirmed this diagnosis to Dr TM in January 2020.
On 14 April 2020, Dr KW wrote to Dr TM. He had assessed AM on 7 April 2020. The assessment had been difficult because of AM's significant hearing impairment. The impression formed by Dr KW was of a vascular dementia on a history of persecutory ideas, cognitive impairment and vascular changes on a CT scan. AM was not insightful into her current care needs and was actively refusing most assistance.
In his medical report Dr TM stated that he has been AM's attending general practitioner for 3.5 years and that he had last seen her on 28 May 2020. Dr TM referenced Dr DJ and Dr KW and stated a diagnosis of dementia with executive dysfunction, poor judgment, limited insight and paranoia. Dr TM assessed AM as incapable in personal and financial decisionmaking and noted that she seemed to refuse input from her medical guardians. He stated he had required a thirty minute conversation to convince her of the need for a urine sample and that she had refused a blood test and treatment for her high blood pressure.
In her service provider report, the registered nurse at the retirement village noted that AM refuses to spend money on services and basic needs. She is able to understand medical advice given to her but does not comply due to her paranoia. The registered nurse states that AM disputes her medical diagnosis and is in complete denial of her support needs.
RM accepts the diagnosis of dementia but is of the view that AM continues to have capacity to make her own decisions. He submits that AM's ability to make financial decisions has not diminished since the 2017 orders were made. What has changed is that her hearing has continued to decline.
RM states there have been two occasions where he has had to act contrary to AM's wishes. The first concerned her move to the retirement village which she initially opposed. At the time AM was in residential aged care under sufferance and a decision had to be made quickly. She wanted to return to her family home but that was not possible. The decision was made to accept the retirement village unit and he, as attorney, signed the relevant documents.
The second occasion was the creation of a bank account without AM's knowledge from which AM's care fees would be paid. A situation had arisen where AM had discovered from bank statements that care fees were being paid to the retirement village. She did not believe she needed care and accused the retirement village of stealing her money. The situation escalated and RM states he sought the advice of the Public Advocate who suggested the creation of a separate bank account from which the care fees would be paid and which would not be disclosed to AM.
Except for those two occasions RM states that any decision to deal with AM's assets could and would be made by AM. For example, if AM wanted to sell the suburban property, he would act on her decision. He would not make that decision solely as attorney.
With regards to AM's daytoday expenditure, her accounts continue to be directed to the family business from where they are paid. This has always been the case and although AM does not see every account before payment, RM states that if an account was out of the ordinary, he would discuss it with AM before payment.
RM states that AM is unhappy she is not receiving rental income from the rural properties. These properties are managed by TW and MM.
JM states that he speaks with AM at least once a week and visits once or twice a month. They talk about the farm, for example the price of wool which is currently low.
JM states that apart from the decline in her hearing, which he says is significant, he has not noticed any changes in AM. Because of the hearing difficulties JM says he will on occasion write things down for AM and she too will write, which she is good at doing.
JM states that he sees his role as attorney to oversee AM's finances but ultimately he sees it as up to her as to how she deals with her money and assets.
JM states that AM is unhappy that she does not receive rental income from the rural properties. He says that TW and MM have advised the rental income has been used to effect repairs and maintenance on the properties although he has not observed those repairs when he has driven past. He believes that if AM had a say in the management of the rural properties she would not want them repaired.
JM states that he has used his authority as attorney from time to time to access bank statements concerning the rural properties. He says that the communication between the attorneys and TW and MM is not good.
On questioning, JM confirmed that AM had 'signed over' a half share in the suburban property to RM sometime in 2018. He states that AM was at the time 'very switched on' and aware of the value of the property (ts 40, 26 August 2020).
KM states that her role is bookkeeper for the family business. The role includes paying AM's accounts once RM has authorised her to do so. AM has never paid her own bills.
KM states that from time to time she will reimburse TW and MM if they have paid for something on AM's behalf.
TW says that as AM's medical guardians, she and MM engage with AM and medical professionals on a regular basis. She states that she therefore experiences what she considers to be AM's incapacity on a daily basis.
TW refers to the Discharge Summary which mentions a review of AM by a consultant medical practitioner expressing concerns about her capacity in the context of her paranoia.
TW says that further evidence of AM's lack of capacity arises from the fact that from 2016 she was approved for a level 4 home care package with a dementia supplement.
TW states that AM cannot do her own shopping. She does not understand what essentials she needs. She is also prone to shoplifting of which TW says she has direct experience, for example putting some chocolates into her bag. TW states that AM does not seem to understand that shoplifting is wrong and at one time AM tried to explain her actions by saying that she wanted to show TW that she could do her own shopping.
TW refers to AM's ongoing belief that the retirement village has stolen from her. AM won't let anyone into her retirement village unit because she is suspicious. She won't allow her clothes and linen to be washed in the retirement village unit, and when TW returns the washed clothes, there are times AM will accuse her of stealing items.
TW states that it is difficult to get AM to follow medical advice and she will try and avoid payment for medical consultations.
TW says that AM cannot be left unattended when out of her retirement village unit. She will cross the road without looking.
TW states that AM refuses to follow rules and fails to understand when her behaviour is inappropriate. This happens in the retirement village such that the management has tried to have AM enter into a contract to regulate her behaviour.
MM concurs with the evidence of TW. She states that paying for things or services is a big issue for AM because of her paranoia and distrust of people and authority.
MM states that AM has an inability to filter her language or behaviour when in public.
MM submits that AM's lack of capacity is demonstrated in the decisions she made to sign over her share of the farming business and a half share in the suburban property which MM contends was not undertaken in AM's best interests.
MM states that she is not always reimbursed by the attorneys when she has paid for something on behalf of AM.
GW submits that one of the principle reasons AM's situation is currently before the Tribunal is because a crisis occurred in which AM was being threatened with eviction from the retirement village due to her dysfunctional behaviour.
GW accepts that the threat of eviction was not as a consequence of any unpaid fees due to the retirement village.
GW contends that AM's decisionmaking is informed by her reluctance to pay for anything, an inability to engage in logical discussion and her lack of understanding of complex financial matters such as the disposal of her interest in the business partnership. GW submits that AM has been informed by incorrect assumptions such as believing that RM does not have anything.

The views and wishes of AM

The current views and wishes of AM are contained in the report by the Public Advocate investigator (investigator) and in the AM letter dated 23 August 2020.
The investigator interviewed AM at the retirement village on 6 August 2020.
AM told the investigator that she had not been permitted to make her own choices by the Tribunal and she wanted to correct that situation.
The investigator states that AM is clearly proud of her achievements throughout her life and has fond memories of her sixty or more years on the farm. She gave detailed information on the export business for the farm produce. She said that her daughters were not really interested in living and working on the farm and in contrast RM and his children were always involved in the farm.
The investigator says that in the course of the meeting AM demonstrated a good memory and recall of her childhood and the events of her life. This included her arrival in Australia, growing the farming business which was started by her father-in-law, the business partnership, raising her children on the farm, obtaining four university degrees and other matters. These things AM said were detailed in the book she is writing about the story of the family farm business.
Throughout the meeting AM pointed out her generous nature which included multiple gifts of funds she had provided her family and her daughters in particular.

AM said that she was kept informed by RM and JM about her finances stating that she could look after the finances herself.
AM was unsure why the rural properties were not solely in her name.
AM was happy for the ownership of the farm and business to transfer to RM and this had been organised through the accountant to make sure it was done properly.
AM could not recall the specifics of the EPA but said it would have been organised by the accountant. She was clear that she wanted the EPA to remain in operation.
AM said that TW and MM had been given lots of assistance and help over the years including house deposits, cars, payment of expenses plus other gifts. She believed that they have been adequately provided financially throughout their lives.
As for the suburban property AM said that it was her idea that she own the property together with RM. She said she had wanted to do something for RM as her daughters had been given money all their lives.
Regarding her accommodation in the retirement village AM was not sure who put her there and noted that she had not wanted to live in the retirement village.
The impression gained by the investigator was that AM wants RM to be involved in looking after her financial affairs.
In the letter filed with the Tribunal AM said that she is tired of the situation of the Tribunal proceedings. She says that she is very happy with the current EPA. She says she has always been included in all decisions concerning her financial affairs and she would like the arrangement where her bills are paid from the business office to continue.
AM says that she has never asked for TW and MM to be her medical guardians. She wants TW and MM to leave the attorneys alone.
AM believes she can manage her own finances with the help of the attorneys.
AM states that under no circumstances does she want TW and MM to take care of her financial, medical or any other matters.
AM states that she is in her 86^th year and would like to spend the rest of her years in peace and tranquillity and not to be bothered by the Tribunal.

The need for an administration order, evidence and submissions

TW states that AM's account of her life as given to the investigator represents what AM wanted her life to be rather than how it actually unfolded.
TW states that when she and MM were the administrators of AM's estate, it represented the best protection for AM and provided what TW calls a wrap-around service (they were also guardians at the time).
She submits that the EPA is not working in AM's best interests. She states that the guardians and attorneys are not working together, for example the guardians realise that AM has major deficits in her cognition whilst the attorneys do not accept that to be the case.
TW states that there is constant conflict between she, MM and the attorneys and she has decided that she can no longer work with the attorneys.
TW states that the retirement village has been seeking solutions from the family to the problems of AM's behaviour and the impact on her tenure, however despite emails and other attempts to discuss issues with the attorneys this has not occurred. TW says that she has felt undermined by the attorneys.
TW states that a point has been reached where AM needs to be waitlisted for residential aged care, however she and MM have not been sufficiently knowledgeable of AM's financial situation to know what residential accommodation AM can afford.
Despite this TW states that she and MM wish for AM to be able to live independently for as long as possible.
In attempting to discover AM's financial situation, TW found out about the transfer of half of the suburban property to RM and states her ongoing concern with the transfer of a farming block to RM in the course of winding up Mr M's estate.
TW contends that the way in which RM received 50% of the suburban property was dealt with inappropriately. TW says that at one time RM told her that she would not get her 'sticky hands' on the suburban property and a copy of that exchange was before the Tribunal in 2017 (2017 orders). TW says that she has problems with RM being on the title of the suburban property and the reasoning behind AM allowing that to occur.
TW confirms that upon the death of Mr M she, MM and AM became equal owners of the rural properties. She states that AM has not received any rental income from those properties and says that the management of the properties occurs through a bank account set up for that purpose. Rental income has been used to maintain the properties which has been extensive.
TW states that she and MM are out of pocket about $460 for payments they made on medical consultations for AM, however they have found it too difficult to seek reimbursement because of the relationship with the attorneys and have given up trying.
TW confirms that the attorneys do not interfere or oppose her and MM dealing with AM's medical appointments.
When questioned about her relationship with AM, TW said that she believes she has a strong relationship with AM but the undermining and the lies she says RM has told AM, has destroyed a lot of AM's belief in her and MM. TW states that she now has a different relationship with AM because of those circumstances but that she still sees AM every second day and they go shopping and do other things together.
TW accepts that AM is not happy about the current Tribunal proceedings but states that in her view AM is not happy about anything.
TW says that she proposes herself and MM to again take on the role of joint administrators.

MM also says that AM's account of her life is not the reality. She does not have any university degrees. It was Mr M who arranged for the transfer of the business to RM and JM not AM.
MM concurs with TW in that she is also of the view that the members of the team supporting AM are not working together and are in constant conflict. She refers to the team as the attorneys, the guardians, doctors and care staff at the retirement village.
MM's main concern is that requests by her and TW to the attorneys are not followed through in a timely manner and when responses are eventually received they are not necessarily supportive and can be followed by statements by the attorneys indicating that the particular concern is none of their business (particularly when it relates to AM's financial affairs).
MM states that she looked after AM both in her own home and in AM's home for as long as she can remember prior to AM living in the retirement village. Like TW she would like AM to remain living as independently as possible.
MM says that AM's relationship with others has deteriorated as a result of her paranoia. AM has a very difficult personality and will, for example, accuse her of taking things.
MM is also concerned as is TW that AM is allegedly being given information detrimental to their relationship and that is not helping maintain the support system that is required to keep AM in the retirement village.
MM accepts that the attorneys do not interfere in medical matters which is left to her and TW as AM's medical guardians. The attorneys have more often expressed disinterest in that area of AM's life.
MM states that she found it an unusual decision for AM to give a half share in the suburban property to RM. It happened quickly and in a situation where MM believes AM lacked capacity. MM wonders whether some coercion might have taken place or that it happened without the appropriate information provided to AM.
MM consents to her proposed appointment with TW as the joint administrators of AM's estate.

GW states that the account of her life that AM gave to the investigator is not correct and reflects a delusional outlook. He says that she did not live on the farm for 60 years. AM and Mr M moved to an outer suburban area, however AM's mental health became so difficult that Mr M moved to a rural town.
GM states that AM's delusions are influenced by her view that RM has got nothing and that the daughters have been well catered for. He submits that some of AM's decisions are based on this falsehood as he sees it.
GW is of the view that the EPA is not working in AM's best interests. He submits that AM is vulnerable financially given the attorneys position that she retains her capacity when clearly that is not the case.
GW contends that AM is punishing TW and MM financially because of their association with the Tribunal proceedings in their attempt to manage her mental health issues. Despite this TW and MM take their roles very seriously.
GW believes that AM's financial position has deteriorated markedly since TW and MM were removed as her administrators. When questioned what he meant by this GW referred to the transfer of her share in the business partnership and the transfer of her half share in the suburban property.
GW states that he had many discussions with Mr M and his plans to ensure AM was secured financially. She was to receive Mr M's share of the business partnership. GW contends that a Deed of Family Arrangement (Deed) was prepared but not signed because AM had already disposed of her share in the business partnership.
GW expresses concern that with the reduction in AM's assets, there may be a shortfall in her finances when she requires high care. This should not be the case as he submits that the plan was for AM to be financially secure and have sufficient income.
GW states that it had been the longterm plan that RM and JM would take over the farming business. He has no issue with that outcome.
GW also makes reference to the payment that AM was receiving from the partnership of $3,000 a month which has been stopped.

RM states that his relationship with TW is not good. He is able to communicate with MM by way of telephone but is really not able to have contact with TW at all.
RM sees his principal role as paying AM's accounts. The accounts to be paid are handled by KM as the business bookkeeper.
As to the relationship with the Public Advocate, RM says that the delegated guardian seems to think that the attorneys are not disclosing all necessary information. He references the assets and income declaration required by Centrelink in order to establish the level of nursing home fees AM will need to pay if she becomes a resident in a nursing home. RM states that the Centrelink form was sent in March 2020 and has been held up pending independent valuation of AM's properties.
AM accepted that the form lodged with Centrelink may need to be revised to take account of gifting that has taken place in the relevant period, in particular the disposal of the interest in the business partnership and the suburban property. He says that he may have misunderstood the relevant question on the form.
RM states that if the delegated guardian requests information it will be provided however she tends not to return his calls.
RM says that he speaks to AM weekly by telephone and visits her about once every fortnight. They discuss TW and MM regularly and AM is reported to have said that it would be better if TW were not involved in her affairs. RM states that AM and TW often clash.
RM states that AM is resentful of the Tribunal proceedings and is of the view that she is quite capable of dealing with her matters within the family.
RM states that AM did not appear to have received independent financial advice when she disposed of her share in the business partnership. She did however speak with the family accountant. The disposal of the interest in the business partnership was to have been recorded in the Deed and although prepared was not signed principally because of the death of Mr M.
Part of the arrangement was that AM would be paid $3,000 per month from the business and this continued until a time when AM said she no longer required those funds.
RM states that in regard to the disposal of her half share in the suburban property, AM consulted a lawyer and received independent advice with regard to that transaction. He understands that she also altered her will at the time.
RM submits that the transactions by AM represented her position that TW and MM had received more than enough throughout their lives by way of gifts.
RM submits that the EPA should be allowed to operate as it is meeting AM's needs and it is her wish that it continue. If the Tribunal determines that an administration order should be made then he and JM are the appropriate choice. He would question whether TW and MM are in a position of a conflict of interest given their view concerning the disposal of the business partnership and the 50% share of the suburban property.
RM submits that if there is a question about the compatibility between the attorneys and TW and MM as guardians then perhaps he and JM could take over the guardianship role for AM.
RM states that AM's accommodation at the retirement village is not currently at risk and that her behaviours have moderated.

JM states that his relationship with MM and TW has deteriorated over the years. When asked why this had occurred JM says that it is as a consequence of TW and MM pursuing applications to the Tribunal which have been against the wishes of AM.
JM states that AM is very happy with the operation of the EPA.
JM says that he has never obstructed or disagreed with medical decisions made by TW and MM as medical guardians. It is his understanding that medical bills are paid. He accepts that he is kept informed of AM's medical appointments by TW or MM.
JM says that he is aware that the delegated guardian has criticised the attorneys of holding things up in respect to the need for reports such as an Aged Care Assessment.
JM states that he sees AM every two to three weeks and she contacts him by phone quite often. They speak about, amongst other things, MM and TW. JM says that AM does not hold TW in very high regard. She is said to worry about MM.
In relation to the 2017 orders, JM states that AM asked why people kept interfering into her affairs. She wanted to do something about that and attended a lawyer, JM believes because she wanted to change her will. He says that about the same time she also transferred half of the suburban property to RM. JM says that it was his understanding that she wanted RM to have the suburban property because she wanted it protected and was concerned about TW and MM.
JM says that he was in the room when the AM letter was written but that he did not tell AM what to write.
JM considers his relationship with AM to be very good. He remembers purchasing a property from AM and Mr M for $400,000. He paid $200,000 as deposit and made regular yearly payments of $20,000 over the next 10 years. The balance has been fully paid.
In respect to the $3,000 that was paid to AM from the business partnership, JM said that the amount varied from year to year depending on the business (farm) profits. The payments stopped after AM signed herself out of the partnership. AM said that she did not want any further funds.

KM states that she completed the Centrelink assets and income declaration which was signed by RM. The declaration was given to the family accountant and was at that office for quite a while for checking. KM says she is still waiting for the Centrelink assessment. She has called Centrelink and has been advised that a valuation of AM's properties is yet to be completed and that the agency had been extremely busy since the COVID-19 pandemic.
KM states that the delegated guardian has sent the occasional email to follow-up on the Centrelink declaration which she says she has always replied to.
KM confirmed that it is her role to reimburse TW and MM for out-ofpocket expenses in respect of AM once approval has been given by the attorneys.
When TW and MM asked for access to an account for groceries for AM, KM says that the attorneys did not approve such an arrangement but rather decided to provide MM with $500 or $1,000 which could be used and added to when MM advised the funds were depleted.
KM says that she gets on really well with AM whom she says is an eccentric person and very frugal.

The Public Advocate, investigator

The investigator provided a written report (report) and gave oral evidence.
In the report the investigator gives an overview of AM's involvement with the Tribunal and it is useful to have the investigator's perspective on that history.
In the proceedings that led to the 2010 orders the investigator refers to the Public Advocate report for that matter and states there was support for the appointment of TW and MM as joint administrators consistent with an EPA that AM made on 12 June 2010 whereby AM had appointed MM as her sole attorney. TW and MM had also been appointed joint guardians.
The investigator notes that subsequent to the 2016 orders and prior to the death of Mr M on 26 June 2016, a number of things happened which altered the relationship between AM and her children and which resulted in substantial changes to AM's personal and business holdings.
AM executed the EPA on 3 March 2016 and the ultimately unexecuted Deed was negotiated by AM, Mr M and their children.
The investigator states that while the Deed remained incomplete, action was taken to adhere to its various components. These included AM and Mr M retiring from the business partnership (signed prior to the death of Mr M) and transferring shares held in businessrelated companies to RM and KM. Any equity held by AM and Mr M in various trusts were to be forgiven and they were to retire from the family trust. The farming block was to be transferred to RM and KM. The balance of loans made to TW and MM were to be forgiven and a payment of $3,000 per month was to be paid to AM and Mr M for the remainder of their lives from the farming business.
The investigator notes that AM retains a 50% share of the farming block otherwise the attorneys appear to have completed the objectives of the Deed other than continuing to pay a monthly allocation of $3,000 to AM.
The investigator questions whether RM was in a position of conflict when the 50% share of the farming block was transferred to him.
In respect to the disposal of a share in the suburban property, the investigator states that he made contact with the lawyer who advised AM on that matter.
The lawyer told the investigator that she had originally met with AM with regard to her will. AM had been taken to the lawyers office by RM however he was not present for the discussion. At the initial visit in early 2018 AM spoke to the lawyer about her wishes regarding the suburban property. She was given advice. Subsequent meetings with the lawyer led to AM giving half of her ownership of the suburban property to RM.
The investigator states that the lawyer advised that she never had any indication that the transfer was anything other than AM's idea. RM is reported to have said to the investigator that he had cautioned AM against the disposal of the suburban property and encouraged her to obtain independent legal advice. He only had confirmation of the property transaction when AM's lawyer asked that he sign the transfer papers.
In respect to the rural properties, the investigator states these were inherited by AM jointly with TW and MM in accordance with the will of Mr M. The buildings on two of the properties are tenanted and all rental income and expenses are paid into and from a jointly held bank account. The investigator confirms the evidence of TW that no net rental income has been paid to AM because of the level of repairs required.
The investigator states that in his view the current day-to-day financial records seen by him appear to be in order. Bank accounts for the past six months have been perused by him along with property rental statements.
The investigator states that the major point of contention between the TW and MM and the attorneys is an apparent lack of cooperation in the reimbursement of expenses and the ongoing differing views on AM's capacity. These things cause conflict.
The investigator notes that the delegated guardian has advised of the difficulties in dealing with the attorneys particularly in relation to the Centrelink declaration which took almost six months to be complete.

The investigator submits that the point seems to have been reached that neither the attorneys nor TW and MM as medical guardians feel comfortable to continue to work with each other due to their differing views. This is particularly pertinent to AM's increasing care needs and to what extent and for how long she can continue to reside at the retirement village.
The investigator submits that it is open to the Tribunal on the evidence to make an administration order and to revoke the EPA.
The investigator submits that should some resolution of the difficulties between TW, MM and the attorneys not occur then it is open for the Tribunal to appoint the Public Trustee as a neutral party to manage AM's estate.

Discussion of the issues

Capacity

I am satisfied on the evidence that AM is a person for whom an administration order can be made; that by reason of a mental disability she is unable to make reasonable judgments concerning her estate.
I do so for the following reasons.
It is common ground that AM has been diagnosed with dementia. In that regard I prefer the most recent assessment by the consultant psychiatrist, Dr KW in April 2020 (supported by Dr TM). Dr KW had the benefit of having assessed AM on an earlier occasion in late 2019 and having available previous reports, for example referring to a psychiatric review in 2015 and a MMSE in 2016.
According to Dr KW the dementia is vascular in origin.
In addition AM has a history of persecutory ideas and lacks insight into her cognitive deficits and care needs.
I am persuaded by the evidence that AM is a variable historian whose paranoia when faced with monetary issues is much more than an expression of frugality.
The lack of insight into her care needs, for which a guardianship order has been made, has led to an equivalent lack of insight into the need to pay for services that are provided to her.
It is not a reasonable judgment to consistently accuse the retirement village of stealing to the extent that an account has needed to be established from which fees are paid and which has been hidden from AM.
A person able to make reasonable judgments about their estate does not need to have parts of that estate removed from their view.
It is not sufficient for RM to say for example that AM is capable in respect of her financial affairs but that from time to time as has occurred in the financial costs of the move to the retirement village, her decision had to be overridden by the attorneys (and in relation to her accommodation by her guardian appointed with that authority).
A person able to make reasonable judgments about how his or her funds are to be expended does not need his or her attorneys to make that decision for him or her contrary to his or her instructions.
In my view the attorneys are under a misapprehension that a forceful personality, which AM certainly has, indicates capacity rather than in the case of AM, strongly held beliefs not always grounded in reality, given her sense of victimisation.
The evidence shows that AM is not able to manage the financial aspects of her daily shopping.
Although wanting things to remain as they are, AM was unable to recall the specifics of the EPA when interviewed by the investigator.
AM could not say why the rural properties were not in her sole name.
In considering all of the evidence of which the above are compelling examples, I am satisfied that AM has reached a stage when in combination of the effects of her vascular dementia and her long standing paranoia, she lacks capacity to make decisions about the management of her estate.

Need

The attorneys take the view that the management of AM's current estate is relatively straightforward largely to do with the collection of her income (principally the rent on the suburban property) and payment of her accounts for the retirement village unit, the costs of the suburban property and her personal needs.
AM's income is in a large part dependant on RM continuing to allow her to collect the whole of the net rent from the suburban property although there is no indication RM intends to change this practice.
A concern is the supervision of AM's interest in the rural properties which is affected by the difficult communications between TW, MM and the attorneys. There is nothing to suggest that TW and MM are managing those properties inappropriately, however it is far from ideal that the relationship between the owners of the properties (and the attorneys for AM), do not have a shared view of how the properties should best be managed and whether any income or capital return can be generated for AM.
TW and MM express that they can no longer work with the attorneys in a situation where AM's care needs are under regular review and aged care facilities are being explored.
I note that whilst the input of TW and MM in the future accommodation and care needs of AM is critical because of their intimate knowledge of their mother, they are not the guardians for those particular aspects of AM's life; that role sits with the Public Advocate.
It is with the Public Advocate that the discussion about future needs of AM should be addressed and the Public Advocate needs to liaise with the managers of AM's estate as to the financial implications of any guardianship decision.
I am not convinced on the evidence that the treatment decision authority held by TW and MM in their guardianship appointment is unduly affected by the communication difficulties with the attorneys.
The matter of the disposal of AM of her interest in the business partnership and related entities continues to vex TW, MM and GW. However this issue was dealt with in the proceedings that produced the 2017 orders and there is nothing before the Tribunal in these proceedings which in my view warrant revisiting that transaction.
The disposal by AM of a half share of the suburban property to RM in 2018 raises the potential of a conflict of interest for RM. However the evidence of the investigator which I accept is that AM obtained independent legal advice in respect to the transfer. In addition, unless there is persuasive evidence to the contrary which there is not in this case, AM has the right to a presumption of capacity in the decision she made at the time.
The wish of AM is that RM and JM continue to manage her financial affairs. She appears to have held this view consistently since she executed the EPA in 2016.
There is an ongoing aggravation in the communication between AM's children. There is mistrust.
Despite this AM's financial affairs are being managed so that her expenses are being met and she is not currently in debt.
There are financial implications should AM need residential aged care which might require decisions regarding the disposal of some of her assets.
The rural properties and how AM's interest in them should be managed remains, as already stated, a difficult issue given that she is not currently earing a return on that investment.
It is not the wish of AM that TW and MM be appointed as the administrators of her estate. In addition the rural properties are jointly held by them and AM which raises the prospect of interests conflicting in the event that a consideration of disposal of the properties need to be entertained.
The same concern applies to the suburban property (and potentially the farming block although this is not clear in the evidence) in which RM and AM have joint interests. There is also the fact that currently RM is effectively gifting his share of the net rent to AM which remains at his discretion.
In both these instances, the conflict if it arises in practice, can be dealt with by way of an application for directions to the Tribunal.
I am persuaded on balance that RM and JM should be retained as the managers of AM's estate but under an administration order rather than the EPA.
Although I am satisfied that RM and JM are diligent in their dealings with AM and her financial needs, I have raised some areas of concern that could do well to have scrutiny of the Public Trustee as a measure of security for AM. This will be by way of the administrators having to file annual accounts with the Public Trustee which will be examined subject to the power given to the Public Trustee under s 80 of the GA Act.
The legal representative of RM and JM foreshadowed the possibility of such an appointment in her submissions. In so doing there is the commensurate need for RM and JM to accept that AM is no longer capable of making reasonable judgments about her estate, which will now be in the hands of the administrators.
I will take that to be the case.
In making the administration order, I will revoke the EPA so that the administration order stands alone as the authority that dictates what financial decisions are to be made in AM's best interests.
The administration order will be reviewed in five years.

Orders

GAA 2202/2020 and GAA 2209/2020
The Tribunal notes:
AM made an enduring power of attorney on 3 March 2016 appointing RM and JM.
The Tribunal orders:
1.On the undertaking of the attorneys of the enduring power of attorney made by AM on 3 March 2016 to provide the applicants with copies of the following documents in a timely manner, the applicants seek leave to withdraw the applications the subject of GAA/2202/2020 and GAA/2209/2020 and the applications are withdrawn:
(a)the current rental agreement for the tenancy at the suburban property; and
(b)any amended Income and Assets assessment filed with Centrelink subsequent to the assessment dated 3 October 2019.

GAA 2208/2020
The Tribunal declares that the represented person, AM is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of estate.

The Tribunal orders:
Administration
1.The enduring power of attorney dated 3 March 2016 by which the represented person appointed RM and JM to be her attorneys, is revoked.
2.RM and JM are appointed joint plenary administrators of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administration order is to be reviewed by 23 December 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (MEMBER)
23 DECEMBER 2020

The unit at the retirement village (retirement village unit)	$420,000
Half-share in a suburban property (suburban property)	$350,000
Third share in a block in a rural town	$23,000
Third share in a property in a rural town	$83,000
Third share in a unit in a rural town (collectively the rural properties)	$100,000
Bank funds	$110,000