AP
[2020] WASAT 120
•9 OCTOBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AP [2020] WASAT 120
MEMBER: JUDGE T SHARP, DEPUTY PRESIDENT
DR E MARILLIER, MEMBER
MS N OWEN-CONWAY, MEMBER
HEARD: 6 AND 7 MAY 2020
DELIVERED : 9 OCTOBER 2020
FILE NO/S: GAA 4441 of 2019
GAA 4442 of 2019
AP
Represented Person
Catchwords:
Administration - Enduring power of attorney - Conflict between adult children of represented person
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 40(1), s 44(3), s 105, s 107, s 107(1), s 107(1)(a), s 109, s 109(1), s 109(1)(c), Pt 9
Result:
Applications refused
Category: B
Representation:
Counsel:
| Represented Person | : | No appearance |
| Applicant | : | Mr K de Kerloy & Mr A Hanna |
| Interested Party A | : | Mr S Cobbett |
| Interested Party C | : | Mr MN Solomon SC |
Solicitors:
| Represented Person | : | No appearance |
| Applicant | : | Herbert Smith Freehills |
| Interested Party A | : | King & Wood Mallesons |
| Interested Party C | : | Lavan |
Case(s) referred to in decision(s):
KS [2008] WASAT 29
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applications before the Tribunal concern AP, a woman in her late 80s who suffers from dementia.
AP has three adult sons, referred to in these reasons as, respectively, son C, son P and son A.
Son P has brought two applications to the Tribunal. The first application is made under s 40(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) for the appointment of an administrator of AP's estate. The second application is under s 109(1)(c) of the GA Act and seeks an order revoking an enduring power of attorney granted by AP in favour of son C.
We will set out the full background and details of the two applications later in these reasons, but for present purposes it is sufficient to say that son C, as attorney of AP, has commenced proceedings in the Supreme Court against son P (and those associated with him) for the recovery of money which, according to son C, was loaned by AP and her late husband to son P. Son P asserts that AP and her late husband gifted the money claimed or forgave any debt for any money loaned to him.
Son A supports the position taken by son C. Son A is also a plaintiff in these proceedings.
The purpose of son P's applications are, first, to set aside the enduring power of attorney and, second, to appoint son C instead as the administrator of all of AP's estate, except the Supreme Court proceedings which son P considers should be conducted by the Public Trustee.
Proceedings in the Tribunal
The two applications from son P were both filed with the Tribunal on 4 December 2019. The Tribunal on 17 December 2019 made certain programming orders including:
(1)Dr Roger Clarnette of Hollywood Specialist Centre in Nedlands must produce a medical report to the Tribunal, the Applicant and interested parties.
(2)The applications are to be referred to the Public Advocate for investigation and report to the Tribunal on the views and wishes of AP in relation to these proceedings and any other matters which the Public Advocate considers relevant.
(3)Son C is to produce a copy of his enduring power of attorney, along with a statement of AP's assets and liabilities and a statement of the expenses incurred, if any, by AP with respect to Supreme Court proceeding CIV 2740 of 2019 (Supreme Court Proceedings).
The matter was listed for a hearing of two days on 6 and 7 May 2020.
On 27 April 2020, son P filed written submissions (son P's submissions).
On 4 May 2020, son C filed written submissions (son C's submissions) and also on 4 May 2020 son A filed his written submissions.
Also on 4 May 2020, son P filed written submissions 'in response to the Public Advocate's submissions' (submissions in reply to PA).
Both applications were heard together.
Following the hearing, son P filed written closing submissions on 4 June 2020 (son P's closing submissions) and on 18 June 2020 son C filed his written closing submissions (son C's closing submissions).
Son A elected not to file any further submissions, relying instead on his earlier submissions.
On 25 June 2020, son P filed reply submissions (son P's reply submissions).
The Tribunal also has before it:
(1)a report from the Public Advocate dated 23 April 2020 in response to the Tribunal's order referred to above;
(2)a medical report concerning AP from Dr Roger Clarnette dated 7 February 2020 also referred to above;
(3)letters concerning AP from Dr Clarnette dated respectively 18 June 2015, 9 June 2016 and 13 April 2017; and
(4)an agreed bundle of documents (agreed bundle).
Legal framework
Guardianship and Administration Act
In dealing with proceedings commenced under the GA Act the Tribunal must observe the principles set out in s 4.
The primary concern of the Tribunal is the best interests of AP; s 4(2).
AP does not need to prove that she has capacity. AP is presumed to be capable of looking after her own health and safety, making reasonable judgments in respect of matters relating to her person, 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; s 4(3).
In considering any matter relating to a represented person or a person in respect of whom an application is made, the 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; s 4(7).
An order shall not be made if the needs of the person concerned could, in the Tribunal's opinion, be met by a less restrictive alternative; s 4(4).
Also, the Tribunal shall not appoint a plenary guardian if the needs of the person concerned could, in the Tribunal's opinion, be met instead by the appointment of a limited guardian; s 4(5). Even if the Tribunal appoints a limited guardian or an administrator, it must be in terms that, in the Tribunal's opinion, impose the least restrictions possible on the person's freedom of decision and action; s 4(6).
Part 9 of the GA Act provides for the creation of an enduring power of attorney, the statutory obligations of attorneys and the jurisdiction of the Tribunal to make certain orders concerning an enduring power of attorney.
Section 105 of the GA Act provides that an enduring power of attorney in force is not affected by the subsequent legal incapacity of the donor, and further that an act done by the donee during a period of incapacity of the donor is as effective as if the donor were of full legal capacity.
Section 107(1) of the GA Act provides:
(1)The donee of an enduring power of attorney -
(a)shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure;
(b)shall keep and preserve accurate records and accounts of all dealings and transactions made under the power;
(c)subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and
(d)shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal.
…
Section 109 of the GA Act relevantly provides:
(1)A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order -
(a)requiring the donee of an enduring power of attorney to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in connection with the power;
(b)requiring such records and accounts to be audited by an auditor appointed by the Tribunal and requiring a copy of the report of the auditor to be furnished to the Tribunal and the applicant for the order; or
(c)revoking or varying the terms of an enduring power of attorney, appointing a substitute donee of the power or confirming that a person appointed to be the substitute donee of the power has become the donee.
(2)The donee of an enduring power of attorney may apply to the State Administrative Tribunal -
(a)for an order referred to in subsection (1)(c); or
(b)for directions as to matters connected with the exercise of the power or the construction of its terms.
(3)The State Administrative Tribunal may, upon an application under this section or upon receiving a report of a donee's bankruptcy under section 107(1)(d) -
(a)make an order referred to in subsection (1) or (2); or
(b)make such other order as to the exercise of the power or the construction of its terms as the Tribunal thinks fit.
(4)An order under this section may be made subject to such terms and conditions as the State Administrative Tribunal thinks fit.
Fiduciary obligations on donees
In addition to the statutory obligations created in s 107 of the GA Act, the donee under an enduring power of attorney has fiduciary obligations to the donor as agent of the donor.
The objective of fiduciary duties is to 'preclude the fiduciary from being swayed by considerations of personal interest and from accordingly misusing the fiduciary position for personal advantage', and to ensure fiduciaries 'conduct themselves at a higher standard than the ordinary person'. The standard they impose is one of 'undivided loyalty by the fiduciary to the principal'. A fiduciary duty is a 'duty which impacts upon conscience by requiring the [agent] to treat the [principal's] interests as paramount' (Dal Pont GE, Law of Agency Lexis Nexis Butterworths, Australia 2014 at 206).
The author goes on to say that:
Donees of powers of attorney ('attorneys'), as fiduciary agents, must not exercise their authority in a way contrary to the interests of their principals. So, like other agents, a donee of a power of attorney is, in the absence of a clear power to do so, prohibited from utilising that authority to pay personal debts, or to make presents to himself or herself or to others of the principal's property.
Dal Pont at 208-209 (citations omitted)
In KS [2008] WASAT 29 Barker J considered the general law in respect of an enduring power of attorney made under the GA Act at [50] and [52]:
50In this regard, it should be noted that there is nothing in the usual Form 1 'Enduring Power of Attorney' or in the general law concerning general powers of attorney that immunises a donee against usual forms of action. A power of attorney is recognised as a formal agency relationship: Parkin v Williams [1986] 1 NZLR 294 at 299. The donor may grant the donee a general power to do any act, or may confine the donee's authority by only allowing authority to do certain acts. Where the donor grants a general power to act, the donee may do any act the donor could, excluding any act which requires personal skill or discretion which is imposed on the donor personally: R v Burchill and Salway; Ex parte Kretschmar [1947] S R Qld 249 at 253.
…
52It has long been recognised that a power of attorney, however widely expressed, will not authorise the donee to prefer their own interests over the donor. For example, in Tobin v Broadbent (1947) 75 CLR 378 at 401, Dixon J stated:
"Prima facie, a power, however widely its general words may be expressed, should not be construed as authorizing the attorney to deal with the property of his principal for the attorney's own benefit. Something more specific and quite unambiguous is needed to justify such an interpretation".
Background in detail
The applications
On 4 December 2019, son P, the applicant, filed an application made pursuant to s 109(1)(c) of the GA Act (GAA 4441/2019). He seeks an order revoking the enduring power of attorney granted by AP in favour of son C.
Also on 4 December 2019, son P filed a further application pursuant to s 40(1) of the GA Act (GAA 4442/2019). In that application, son P sought an order that the Public Trustee of Western Australia (Public Trustee) be appointed administrator of AP's estate because of:
[t]he applicant's principal concern with how [son C] is managing the estate of [AP] relates to the conduct of the Supreme Court Proceeding and this is reflected in the orders which are sought from the Tribunal.
Son P filed an attachment to GAA 4441/2019 and GAA 4442/2019 which specifically sets out the collective orders sought in both applications as follows:
(1)The enduring power of attorney dated 17 September 2015 by which [AP] appointed [son C] to be her attorney, is revoked.
(2)[Son C] is appointed limited administrator of [AP's] estate with plenary powers save and except for the functions given to the Public Trustee.
(3)[The Public Trustee] is appointed limited administrator of the estate of [AP] with respect to the conclusion, and if appropriate the settlement of [the Supreme Court Proceedings].
(4)[Son C] is to make the necessary funds available to the Public Trustee out of the estate of the represented person to enable the Public Trustee to undertake and complete the functions given to him under this order.
(5)Pursuant to s 16(4) of the [GA Act], the costs of the proceedings before the Tribunal shall be paid from the assets of [AP].
Son P sought an order pursuant to s 109(1)(c) of the GA Act that the enduring power of attorney executed by his mother, AP, in favour of son C on 17 September 2015 (EPA) be 'revoked'. In closing submissions however, son P sought for the EPA to be 'varied' in the alternative. Under the EPA, AP appointed her eldest son, son C, as her attorney to do anything that she 'can lawfully do by an Attorney' (EPA cls 1 and 2). The Tribunal notes that at the directions hearing on 17 December 2019, the legal representatives of both son P and son C indicated that there was no challenge to the validity of the EPA and that AP had the legal capacity to execute a valid enduring power of attorney; ts 5, 17 December 2019.
The represented person
AP
AP is now 88 years of age. She was born on 20 February 1932 in Pula, Italy.
AP was married to LP until he passed away on 26 February 2016. Together they raised and educated to a very high standard, son C, son A and son P, who have each forged careers, in the case of son C, in the field of medicine and, in the case of son A and son P, in general business enterprises.
It is asserted by son C and son A in the Supreme Court Proceedings that AP had limited command of the English language. This asserted fact is denied by son P in his defence in that proceeding. This has become a relevant issue in the Tribunal proceedings concerning the ability of the Tribunal to obtain AP's views and wishes for the purposes of s 4(7) of the GA Act.
The Tribunal finds, on the limited evidence adduced by the parties in this proceeding, that AP does have only a limited command of English and is reliant on others whom she trusted to assist her to understand more complex terms and concepts of the English language such as are found commonly in wills and legal documents.
Capacity of AP
It is uncontentious that as at the date of the hearing and from at least 2017, AP did not have the presumed capacity to manage her financial affairs and to make reasonable decisions in respect of her estate; s 4(3) of the GA Act. Her general practitioner, Dr Jeanne Nel states in her letter addressed to the Tribunal dated 4 February 2020 that AP 'suffers from Dementia and is incapable of managing her own affairs'. Also, AP's home care provider, Barbara Macleod RN, from Carealot Home Health Services Pty Ltd, notes in her letter of 6 February 2020, provided for these proceedings, that AP suffers from dementia and also that attendance at the hearing would cause AP great distress.
Specialist geriatrician Dr Clarnette, whom AP last consulted in 2017, provided a medical report to the Tribunal dated 7 February 2020, in which he stated that AP has Alzheimer's syndrome, clinically apparent since June 2015. He concluded that he considered AP to be incapable of all financial and legal decision-making, and stated that when he last saw her in April 2017 she had no understanding of her financial affairs. He attached three letters:
(1)A letter dated 18 June 2015 to son C (copied to Dr Nel) recording a diagnosis of altered mental state, mild cognitive impairment, and a deficit in episodic memory which most likely represents Alzheimer's disease. Dr Clarnette stated that AP had a history of deterioration over the last three years, with repetitive conversations and poor recall of recent events reported by family. AP requires the assistance of a weekly cleaner. AP no longer drives a car since an accident in 2012, but was buying groceries and using some currency independently. The report also notes history from family members that AP had become suspicious about financial matters but that the suspicions were directed at LP, her late husband. AP's Mini-Mental State Examination score is reported as 20/30. Dr Clarnette stated that AP 'lost most points on orientation and managed to score 4/5 on serial 7s and 2/3 on word recall'.
(2)A letter dated 13 April 2017 to Dr Nel describing ongoing deterioration with sundowning, delusions and compulsive behaviours, and AP having no recollection she had ever made a will and no knowledge of her home or assets.
(3)A letter dated 9 June 2017 to son C (copied to Dr Nel) describing visual hallucinations.
As to her financial abilities, there is no evidence that AP understands financial terms and dealings of any complexity. The evidence before the Tribunal is that her husband had some understanding of complex financial transactions including share trading with the aid of his sons. There is no evidence that AP has any understanding of her and her husband's then current financial situation and needs or their (and now her) future financial needs. The Tribunal considers that AP was reliant upon her husband for financial stability and security and her financial concerns were directed to more day to day matters. Once her husband had passed away, she was entirely reliant on her sons and other family members in respect of financial issues pertaining to her needs because of her lack of skills and, by 2017, her loss of capability to make reasonable decisions and judgments concerning her estate.
On the basis of the medical evidence, and particularly the recent medical evidence since April 2017, the Tribunal is satisfied that as at the hearing date of these proceedings, the presumption of capacity referred to in s 4 of the GA Act is rebutted in AP's case. The Tribunal concludes that it can declare that AP is unable, by reason of a mental disability, to make reasonable judgements in respect of matters relating to all of her estate and that AP is a person for whom an administration order can be made.
The Supreme Court Proceedings
Son A, and son C as AP's enduring attorney, assert in the Supreme Court Proceedings that son P, his wife S and an associated company owe and should pay to AP the sum of at least $537,500, and further owe a duty to account for other monies (including interest earned by him or them) and shares held by him or them on trust for AP. It is clear from the Supreme Court Proceedings that the plaintiffs seek payment of possibly more than $537,500 following a full account, should one be so ordered by that Court.
The means by which the amount specified and any other amounts are to be determined are set out in the writ of summons filed in the Supreme Court Proceedings specially endorsed with a statement of claim, dated 3 October 2019.
Son P's answer to that claim is that AP and her late husband LP, son P's father, executed a deed of acknowledgement of gifts (Deed) that discharged son P, his wife and all entities associated with him from any and all liabilities.
Son A, and son C as AP's enduring attorney, in the Supreme Court Proceedings have challenged the validity and enforceability of the Deed. They seek a declaration that the Deed is either unenforceable or in the alternative is ineffective in discharging any liabilities that son P, his wife or companies associated with him have towards AP.
The manner in which the alleged debt arose and the manner in which the alleged owed sums are calculated in the Supreme Court Proceedings are complex and the facts and circumstances relied upon by the plaintiffs in those proceedings date back to December 2000.
There is nothing more than this brief summary that the Tribunal needs to have before it in respect of the dispute and the Supreme Court Proceedings. The validity, enforceability, legal and equitable effect of the Deed is properly before that Court and there is nothing before this Tribunal that suggests that the Supreme Court has considered that the proceeding should be summarily dismissed. Further, on the face of the documents, son C has the power as AP's enduring attorney to take action to 'protect' AP's estate and do all things she is legally able to do by an attorney; s 107(1)(a) and s 105 of the GA Act. In light of an arguable basis to assert that the Deed is impugned and should be declared to be invalid, unenforceable or of no legal or equitable effect, the conduct in pursuing a sizable claim on behalf of a donor, falls within the very ambit of the role of an enduring attorney.
Given that there are proceedings on foot in a court of competent jurisdiction impugning the validity, enforceability and effect of the Deed, the Tribunal has no basis at this time to conclude that son C, as AP's enduring attorney, is somehow in breach of a direction by AP or that he is acting improperly. We do not understand the Supreme Court Proceeding to have been summarily dismissed and therefore the Tribunal must have regard to the fact that there is a proper dispute about the Deed. In addition, all parties are ably legally represented in that proceeding. To this end, the written material, including many emails and correspondence, oral evidence of son P, cross-examination, and submissions about how the disputed sums of money came to be paid to son P, whether he had been informed it was forgiven or whether it has been forgiven, is not information about which this Tribunal can make any findings.
The Tribunal notes that son C is not a party to the Supreme Court Proceedings in his personal capacity and no relief is sought by him in his personal capacity. He is a party to those proceedings only in his capacity as AP's enduring attorney.
The controversy around facts and circumstances giving rise to the dispute are all before the Court in the Supreme Court Proceedings. The Supreme Court has the jurisdiction to make findings, apply the law for the purposes of the causes of actions and suits that are brought in those proceedings against son P, his wife and the associated company. It is not for this Tribunal to make any findings about the validity and enforceability of the Deed or any of the transactions that are the subject of the dispute in the Supreme Court Proceedings.
The Tribunal acknowledges that son P, his wife and the associated company have filed a defence in the Supreme Court Proceedings and that son P asserts that they have a good defence to the claims.
The enduring power of guardianship and the cost of care for AP
Son P in his application to the Tribunal states that son C is also the enduring guardian of AP pursuant to an enduring power of guardianship deed dated 17 September 2015. We do not understand that there is any dispute concerning the manner in which son C, as the enduring guardian, has made any decisions for AP. Most significantly there is no evidence before the Tribunal that any family members including AP disagree with son C's decision as the enduring guardian that AP should reside in the home that she has lived in for many years and shared with LP during his lifetime, with services to facilitate her safe and dignified accommodation, as far as practically and medically possible, for the remainder of her life.
The provision of the services required to facilitate this objective comes at substantial cost. Nonetheless, that decision is not the subject of any disagreement, particularly from son P.
To this end son C, both as the enduring guardian and enduring attorney, has produced statements showing:
(a)assets and liabilities of AP as at 31/1/20, comprising liquid assets of $1,224,590 plus the value of the home that she occupies and it is intended that she continues to occupy; and
(b)income and expenditure for the period 1/7/19 to 31/1/20 (7 months) indicating her total expenditure exceeded her income by $233,133 for that seven month period.
Given that some expenses are not recurring within a 12 month period (for example tax of $17,942) it is not possible to ascertain AP's expenses over a 12 month period in order to determine the likely recurring annual expenditure. However, the carer fees alone amounted to $217,273 for seven months. This evidence is not challenged by son P.
The Tribunal also refers to and accepts the unchallenged evidence in the form of the letter from Carealot Home Health Services Pty Ltd referred to at [39] above, that 'we have been providing comprehensive 24 hour care since May 1, 2018' for AP to enable her to reside in her own home. This evidence is also not challenged by son P.
By the Tribunal's own calculations, at the rate of the cost of full time care for AP to reside in her own home, the liquid funds available to her for that purpose will be exhausted in approximately 3.3 years from 20 January 2020. At the expiration of that period of time, AP will not have funds to continue to pay for her care in her own home. The sums referred to in the documents before the Tribunal put the sum claimed in the Supreme Court Proceedings as high as in excess of $700,000. That sum equates to approximately two years of home care cost for AP and might allow her to reside in her own home with full care for a further two years.
Son C contends that the claim made in the Supreme Court Proceedings has real value to AP in her life.
Son P's position
In his closing submissions, son P asserts that the EPA should be revoked 'or varied' because:
(a)son C failed to follow the express wishes of AP and LP by commencing the Supreme Court Proceedings contrary to his duty as an enduring attorney;
(b)son C has an actual or potential conflict of interest; and
(c)there has been an irreparable breakdown in the relationship between son C and son P which renders son C unsuitable for the function of having carriage of the Supreme Court Proceedings and this is reflected in son C's conduct.
This is the essence of son P's applications in the Tribunal.
As to the first point (a)
Son P relies on the inclusion of a clause in a will drafted by lawyers in mid-2015, to forgive debts owed by family members (forgiveness clause). The terms of the clause and the circumstances surrounding how the instruction was given and whether son P surreptitiously arranged for its inclusions (as suggested in cross-examination) are unclear. Much of the examination, cross-examination and email exchanges between son P, son C and son A go to this issue. However, the Tribunal considers that, in respect of these proceedings, this debate is irrelevant.
It is common cause that the draft will including the forgiveness clause was not executed by AP. An almost identical will was drafted for LP and he did not execute the draft which included an identical forgiveness clause. In the Tribunal's view, the draft wills have no bearing on AP's actual express views and wishes because she did not adopt that draft will or the forgiveness clause by execution of that draft will.
It is also common cause that AP and LP each executed wills that are silent about debt forgiveness.
The reason why the Tribunal considers that the draft wills containing a forgiveness clause are irrelevant is because such a clause would only have operation upon and after the death of the creditor. It is not unusual for a will maker to provide for a forgiveness of debt after his or her death. However, if such a provision is included in a will, that does not necessarily mean that the debt is forgiven during the will maker's lifetime. In fact the existence of a forgiveness clause in a will might suggest that the debt was valid and recoverable until the death of the will maker. That is quite the contrary to son P's position.
Son P's assertions that both AP and LP orally and repeatedly informed him that neither wished for him to 'repay' the money they both seemed to agree that he owed them are not supported by any independent evidence.
Son P also relies on an incident where he says that he prepared a number of cheques in favour of AP as repayment instalments. Each cheque amounted to relatively small sums of money of about $20,000. Son P gave evidence that AP tore up the cheques and that son C was aware of this action. Son P says this incident, along with his evidence that AP refused repayment, shows that the 'debt' was forgiven. Again, that evidence goes to the heart of the Supreme Court Proceedings and we make no findings about this.
Most significantly, the Tribunal acknowledges that AP was suffering a degree of significant decline in her cognition at that stage, as evidenced by the medical reports before the Tribunal.
Son P also relies on a note written by AP in Italian on 6 May 2017; agreed bundle at p 139. It should be noted that as at that date, according to the medical evidence, AP had suffered substantial decline in her cognitive ability. A question for the Tribunal is whether that note and any statement contained therein can safely be relied upon as a true expression of AP's wishes. The second question is whether the note can be construed as a direction to son C not to proceed to recover any moneys from son P, which son C is refusing to comply with.
The note has been translated and there is no challenge to the accuracy or truth of the translation; agreed bundle at p 140 and 141. The Tribunal therefore relies on the translated English version of the note generally. The note recounts an incident when AP attended upon a 'man' who asked her to sign a document. AP's understanding is that the document she was asked to sign was 'take him [son P] to court'. The note records the fact that AP attended upon this 'man' with her sister Luisa. Luisa has not provided any evidence or statement of this event or of the discussion with AP or of the note. The note records that AP is deeply hurt and troubled about this situation and says the money was a gift and she will not take her son (son P) to court.
The note records that she told son C and son A the same. She notes:
Luisa, I could not stop crying, crying that the two brothers are so evil (or mean).
… the money was a gift and I don't want it back my wish is that when I dies everything will be divided into 3 parts and I don't want [son P] to return [illegible]
It is significant that AP's focus is upon what money will be divided between her sons upon and following her death. AP gives no indication that she understands that there may conceivably be a need for the money in her future life and also does not indicate that she has any understanding of how much money is involved. This note and the lack of circumstances surrounding the same and particularly AP's cognitive decline when she wrote the note makes it unsafe for the Tribunal to rely upon it as any form of instruction to son C that she forbade him from taking steps to recover any moneys from son P.
Son P also relies upon the Deed. For the reasons referred to above the Tribunal makes no finding about the Deed which is challenged in the Supreme Court Proceedings.
For these reasons the Tribunal concludes that there is no persuasive evidence adduced by son P that son C has taken and is prosecuting the Supreme Court Proceedings in breach of any instruction by AP. The Tribunal accepts that AP is distressed by the Supreme Court Proceedings and that her life's work as mother and home maker should end in such vociferous antagonism between her children. However, that does not mean, if she were apprised of the size of the claimed debt, the amount that son P admits had been paid to him by AP and the real possibility that AP will need that money to be paid to her in her lifetime, that if she was of sound mind she would forbid the proceedings being prosecuted on her behalf.
As to the second point (b)
It is important to note that son C is not alone in prosecuting the Supreme Court Proceedings. Son A is also a plaintiff in the Supreme Court Proceedings. Even if the EPA is revoked, this would be immaterial to son A's action and suit. Further, it is difficult to see how son C is conflicted, in circumstances where he maintains that AP will require funds to maintain her current standards of living for the rest of her life and there is unchallenged evidence supporting that view.
The fact that all three sons may ultimately receive a bequest under AP's will is not material. It is entirely speculative and the evidence suggests that there may be little of the estate left upon AP's death given her annual care costs.
The Tribunal notes that under s 44(3) of the GA Act, simply being a family member does not amount to a conflict in respect of an appointment of a guardian. There is no equivalent provision in respect of the appointment of a donee under an enduring power of attorney, but the Tribunal can see no reason to find that if a donee under an enduring power of attorney is also a family member of the donor then that in itself amounts to a conflict of interest.
Any offers of settlement made in the Supreme Court Proceedings cannot be considered by the Tribunal in the context of a claim that is before the Supreme Court. Those offers may be considered by the Supreme Court in due course. In the context of the matters before the Tribunal they are not relevant.
Equally, the Tribunal cannot comment on the legal costs of the Supreme Court proceedings, other than in the context of our assessment of whether son C as attorney under the EPA is exercising his powers to protect the interests of AP. That is a matter for the Supreme Court which has the power to order any party to pay costs of the proceedings and also has the power to order third parties to pay those costs should it be persuaded to do so.
As to the third point (c)
It is undoubtedly the case that there has been a breakdown in the relationships between AP's sons. However, son C has a duty as AP's enduring attorney to protect the interests of AP; s 107(1)(a) of the GA Act. Where that conflicts with his personal feelings he must either put his feelings aside and perform his duty or make an application to the Tribunal to be relieved of the duty; s 109(1) of the GA Act. The dispute no doubt has taken its toll on all members of the family. Commercial disputes and litigation of any kind can be gruelling for all concerned. However, there is no evidence that the breakdown in the fraternal relationship interferes with son C's decision making. Son C cannot be prevented from discharging his duty simply because of a family disagreement. As we have already stated, the Supreme Court has the power to summarily dismiss a proceeding in circumstances where it is satisfied there is not justiciable issue of fact or law. That has not occurred and there is no evidence that son C has conducted the Supreme Court Proceedings other than properly. The fact that son P has not at this point been able to achieve the outcome he is seeking does not equate to a conclusion that son C, as a plaintiff, is conducting the Supreme Court Proceedings irregularly or unreasonably.
Jones v Dunkel point
In son P's closing submissions he notes 'the failure to call [son C] to give evidence in these proceedings'; son P's closing submissions at para 11. Son P says that this 'failure to call him brings into operation the Jones v Dunkel principle in relation to the evidence before this Tribunal'. The Tribunal agrees entirely with the closing submissions of son C on this point; son C's closing submissions at paras 97 - 99. That principle has no application in this proceeding, as the Tribunal finds that son P has not adduced any evidence that persuades the Tribunal that the conduct of son C is contrary to his duty as the enduring attorney.
Conclusion
For these reasons, the Tribunal concludes that there is no evidence to justify the Tribunal interfering with AP's appointment of son C as her enduring attorney. The Tribunal finds that son C is not in breach of any fiduciary duty and has not permitted a personal interest to conflict with that of AP. The Tribunal also finds that there is no persuasive evidence that son C is conducting the Supreme Court Proceedings unreasonably and without proper regard to his duty as the enduring attorney for AP.
Accordingly, the application in GAA 4441/2019 to revoke or vary the EPA is refused.
As the Tribunal is not persuaded to revoke or vary the EPA as sought or at all, there is no utility in considering the appointment of the Public Trustee of Western Australia as the administrator of the estate of AP. The application in GAA 4442/2019 is therefore also refused.
Accordingly, both proceedings are dismissed.
Orders
1.The applications in GAA 4441/2019 and GAA 4442/2019 are refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
9 OCTOBER 2020
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