AQ

Case •

[2015] WASAT 139

•

25 SEPTEMBER 2015

No judgment structure available for this case.

AQ [2015] WASAT 139



STATE ADMINISTRATIVE TRIBUNALCitation No:[2015] WASAT 139
09/12/2015
GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:GAA:3042/201511, 12 AUGUST AND 25 SEPTEMBER 2015
Coram:MR J MANSVELD (SENIOR MEMBER)25/09/15
30Judgment Part:1 of 1
Result: Applications dismissed
B
PDF Version
Parties:AQ

Catchwords:
Guardianship and administration ­ Dementia ­ Capacity to make reasonable judgments about personal and financial matters ­ Briginshaw approach ­ Allegations of influence not on their own determinative of capacity ­ Planning for future care when faced with progressive cognitive decline in an environment of fractured family relationships ­ Enduring power of attorney

Legislation:
Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 43, s 64, s 65, s 72(1), s 82, s 82(1), s 106, Sch 2 Pt B(e)

Case References:
Briginshaw v Briginshaw (1938) 60 CLR 336
Dalle-Molle v Manos (2004) 88 SASR 193
GC and PC [2014] WASAT 10
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37
Medical Board of Australia and Bowles [2014] WASAT 115
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161

Summary
Applications for guardianship and administration orders were made for a 78­year­old man by his son.  The man had previously been diagnosed with dementia.,The son was alleging that one of the man's daughters had, for her own interests, influenced the man to sell his property and purchase a new property (rural property) solely with his funds but which would be owned jointly by the man and the daughter.,The son alleged that the man, because of the effect of his dementia, could no longer protect his financial interests.  The son also alleged that the rural property, in which it was intended that the man live with his daughter and her family, was inappropriate for his care needs and would result in him becoming socially isolated.,The son was supported in his applications by the man's other daughters.,The evidence of the man and his daughter was that they had been discussing his care needs for some time in the knowledge of his progressive dementia without any assistance from the man's other children.,In his evidence the man said that he had cared for his mother in her home when she was diagnosed with dementia and that he did not want to move to a nursing home.  There was also evidence that when the man had agreed to care for his mother a family agreement had been made in which the mother's property was transferred to him.,The medical evidence was supportive of the view that the man had made a rational or reasonable judgment in the planning for his intermediate and longer term care given the diagnosis of dementia.,The Tribunal found that the context in which the man made the decision to purchase the rural property was a desire not to have to move to a nursing home; the assistance he received and was promised in the future by the daughter; no clear alternative accommodation that he was willing to accept; the often fractured relationship he had with his other children and the experience he had had caring for his mother.,The Tribunal found that the agreement the man had entered into with his mother and other family members where the mother's property was transferred to him on the basis that he would care for his mother in her home, was the initial template that he used in discussions with his daughter in the purchase of the rural property.,The Tribunal was satisfied, however, that the man did not understand the full financial impact that holding the rural property jointly with the daughter (and thereby gifting her a half share), would have on his continuing eligibility to receive the age pension and also what would happen to the ownership of the rural property upon his death.,Even so, the Tribunal was not satisfied to the required standard that the man's lack of understanding was as a consequence of the dementia rather than a lack of knowledge that many capable people in the community would have about these types of matters.,As for the alleged influence of the daughter in order to gain a financial benefit from the purchase of the new property contrary to the interests of the man, that of itself, even if correct, could not alone determine the man's capacity.,Ultimately the Public Trustee, acting in his capacity under an interim order made by the Tribunal, decided, and which was supported by the daughter, to finalise purchase of the rural property solely in the man's name.,The Tribunal found that the rural property was not at risk and that the man could continue to manage his pension income with, if necessary, some assistance from the daughter.,The man had executed an enduring power of attorney in 2009 with his daughter and son­in­law appointed as his joint and several attorneys.  The instrument could not come into effect until a declaration of the man's legal incapacity was made by the Tribunal.  It was the responsibility of the attorneys to monitor the man's situation and with medical assistance decide at which point an application should be made to the Tribunal for a declaration of legal incapacity so that a decision could be made as to whether the enduring power of attorney should be brought into force.  At that time the man's children would have the opportunity to put to the Tribunal how, ultimately in their views, the man's estate should be managed.,The Tribunal decided that there was no current need for guardianship or administration orders and the applications were dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : AQ [2015] WASAT 139 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 11, 12 AUGUST AND 25 SEPTEMBER 2015 DELIVERED : 25 SEPTEMBER 2015 PUBLISHED : 9 DECEMBER 2015 FILE NO/S : GAA 3042 of 2015
    GAA 3043 of 2015
    GAA 3416 of 2015
MATTER : AQ
    Represented Person

Catchwords:

Guardianship and administration ­ Dementia ­ Capacity to make reasonable judgments about personal and financial matters ­ Briginshaw approach ­ Allegations of influence not on their own determinative of capacity ­ Planning for future care when faced with progressive cognitive decline in an environment of fractured family relationships ­ Enduring power of attorney

Legislation:

Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 43, s 64, s 65, s 72(1), s 82, s 82(1), s 106, Sch 2 Pt B(e)

Result:

Applications dismissed


Summary of Tribunal's decision:

Applications for guardianship and administration orders were made for a 78­year­old man by his son. The man had previously been diagnosed with dementia.


The son was alleging that one of the man's daughters had, for her own interests, influenced the man to sell his property and purchase a new property (rural property) solely with his funds but which would be owned jointly by the man and the daughter.
The son alleged that the man, because of the effect of his dementia, could no longer protect his financial interests. The son also alleged that the rural property, in which it was intended that the man live with his daughter and her family, was inappropriate for his care needs and would result in him becoming socially isolated.
The son was supported in his applications by the man's other daughters.
The evidence of the man and his daughter was that they had been discussing his care needs for some time in the knowledge of his progressive dementia without any assistance from the man's other children.
In his evidence the man said that he had cared for his mother in her home when she was diagnosed with dementia and that he did not want to move to a nursing home. There was also evidence that when the man had agreed to care for his mother a family agreement had been made in which the mother's property was transferred to him.
The medical evidence was supportive of the view that the man had made a rational or reasonable judgment in the planning for his intermediate and longer term care given the diagnosis of dementia.
The Tribunal found that the context in which the man made the decision to purchase the rural property was a desire not to have to move to a nursing home; the assistance he received and was promised in the future by the daughter; no clear alternative accommodation that he was willing to accept; the often fractured relationship he had with his other children and the experience he had had caring for his mother.
The Tribunal found that the agreement the man had entered into with his mother and other family members where the mother's property was transferred to him on the basis that he would care for his mother in her home, was the initial template that he used in discussions with his daughter in the purchase of the rural property.
The Tribunal was satisfied, however, that the man did not understand the full financial impact that holding the rural property jointly with the daughter (and thereby gifting her a half share), would have on his continuing eligibility to receive the age pension and also what would happen to the ownership of the rural property upon his death.
Even so, the Tribunal was not satisfied to the required standard that the man's lack of understanding was as a consequence of the dementia rather than a lack of knowledge that many capable people in the community would have about these types of matters.
As for the alleged influence of the daughter in order to gain a financial benefit from the purchase of the new property contrary to the interests of the man, that of itself, even if correct, could not alone determine the man's capacity.
Ultimately the Public Trustee, acting in his capacity under an interim order made by the Tribunal, decided, and which was supported by the daughter, to finalise purchase of the rural property solely in the man's name.
The Tribunal found that the rural property was not at risk and that the man could continue to manage his pension income with, if necessary, some assistance from the daughter.
The man had executed an enduring power of attorney in 2009 with his daughter and son­in­law appointed as his joint and several attorneys. The instrument could not come into effect until a declaration of the man's legal incapacity was made by the Tribunal. It was the responsibility of the attorneys to monitor the man's situation and with medical assistance decide at which point an application should be made to the Tribunal for a declaration of legal incapacity so that a decision could be made as to whether the enduring power of attorney should be brought into force. At that time the man's children would have the opportunity to put to the Tribunal how, ultimately in their views, the man's estate should be managed.
The Tribunal decided that there was no current need for guardianship or administration orders and the applications were dismissed.

Category: B


Representation:

Counsel:


    Represented Person : Mr G Boland (for the hearing on 11 August 2015)

Solicitors:

    Represented Person : Legal Aid



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

Briginshaw v Briginshaw (1938) 60 CLR 336
Dalle-Molle v Manos (2004) 88 SASR 193
GC and PC [2014] WASAT 10
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37
Medical Board of Australia and Bowles [2014] WASAT 115
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 These proceedings took place in the Tribunal's jurisdiction under the Guardianship and Administration Act 1990 (WA) (GA Act). They concern a 78­year­old man, AQ, who has been diagnosed with dementia.

2 In July 2015, D, a son of AQ made applications for the appointment of a guardian and an administrator for AQ. The primary allegation was that AQ was about to settle the purchase of a property in rural Western Australia (rural property) and that the rural property would be held in the name of a daughter of AQ, S and her spouse, JB.

3 The applicant alleges that AQ has been deceived by S.

4 AQ had not long before sold the property in which he had previously lived (previous property) and it was his reported intention that he live with S in the rural property. The applicant expressed the view that it was not in AQ's best interests for him to live in the rural property as he would become socially isolated and depressed.

5 The applicant alleges that AQ's mental faculties were in decline, that he would get confused and forgetful and that he was vulnerable to financial abuse by means of coercion and deception by S and JB.

6 AQ had, on 20 February 2009, executed an enduring power of attorney (EPA) in favour of S and JB as joint and several attorneys. The instrument is not in operation as AQ has declared that it will only come into force during any period when a declaration of legal incapacity has been made by the Tribunal pursuant to s 106 of the GA Act.

7 On 13 July 2015, the Tribunal made an order under s 65 of the GA Act authorising the Public Trustee to secure, receive and hold, on behalf of AQ, the proceeds of sale of the previous property pending further order of the Tribunal. An order under s 65 of the GA Act can be made when the Tribunal is satisfied that a person may be a person in respect of whom a declaration can be made under s 64 of the GA Act, that they are in need of an administrator and it is necessary to make immediate provision for the protection of the person's estate.

8 On 23 July 2015, that order was substituted by another order made under s 65 of the GA Act authorising the Public Trustee to exercise the functions of a plenary administrator and to protect and secure all of the estate of AQ including but not limited to the previous property including lodging a caveat on the title of the previous property.

9 Also on 23 July 2015, the Tribunal ordered pursuant to s 72(1) and Sch 2 Pt B(e) of the GA Act that the settlement agent pay to the Public Trustee the entire proceeds from the sale of the previous property.

10 On 6 August 2015, the Public Trustee filed an application with the Tribunal under s 82(1) of the GA Act. The Public Trustee stated that the original purchase contract for the rural property was entered into by S and JB on 13 June 2015. Then on 25 June 2015, a substituted transferee application was filed with the Registrar of Titles to remove JB and include AQ in the purchase of the rural property. Settlement was scheduled for 14 August 2015. The Public Trustee sought an order that the substituted transferee application to remove JB and include AQ be set aside.

11 Under the authority of the order made under s 65 of the GA Act, the Public Trustee ultimately arranged for the contract to purchase the rural property to be cancelled and to enter into a new contract with the vendors to purchase the rural property in AQ's sole name. Settlement occurred on 3 September 2015.

12 The applications were heard on 11 and 12 August and 25 September 2015. The hearings were attended by AQ (represented by Legal Aid, initiated by the Tribunal in the hearing of 11 August 2015), representatives of the Public Trustee (Public Trustee), a representative of the Public Advocate to whom the applications for guardianship and administration orders had been referred for investigation, D, S (legally represented in the hearing on 11 August 2015) and other children and family members of AQ.

13 The hearing on 11 August 2015 was also attended by AQ's general practitioner (GP), Dr RC, at the request of the Tribunal.

14 On 25 September 2015, I dismissed the applications for guardianship and administration orders. With respect to the application under s 82 of the GA Act, the Public Trustee accepted that he had no standing to make the application and sought leave to withdraw, which I accepted.

15 The following are the reasons for my decision.




The relevant legislation


    4. Principles stated

    (1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.

    (2) 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.

    (3) Every person shall be presumed to be capable of ­


      (a) looking after his own health and safety;

      (b) making reasonable judgments in respect of matters relating to his person;

      (c) managing his own affairs; and

      (d) making reasonable judgments in respect of matters relating to his estate,

      until the contrary is proved to the satisfaction of the State Administrative Tribunal.


    (4) 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.

    (5) A plenary guardian shall not be appointed under section 43(1) or (2a) 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.

    (6) 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.

    (7) 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.

    …

    43. Making of guardianship order

    (1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 ­


      (a) has attained the age of 18 years;

      (b) is ­


        (i) incapable of looking after his own health and safety;

        (ii) unable to make reasonable judgments in respect of matters relating to his person; or

        (iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;

        and


      (c) is in need of a guardian,

      the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint ­

      (d) a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or

      (e) persons to be joint plenary guardians or joint limited guardians,

      as the case may require, of the person in respect of whom the application is made.


    (2) Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied.

    …

    (3) An appointment under subsection (1) or (2a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit.

    (4) An order appointing a limited guardian shall specify the functions that are vested in the limited guardian under section 46.

    …

    64. Making of administration order

    (1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 ­


      (a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and

      (b) is in need of an administrator of his estate,

      the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint ­

      (c) a person to be the administrator; or

      (d) persons to be joint administrators,

      as the case may require, of the estate of the person in respect of whom the application is made.


    (2) Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.

    (3) An appointment under subsection (1) ­


      (a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;

      (b) may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given.




Evidence and submissions


The relevant medical reports, other professional reports and the oral evidence of Dr RC




4 June 2015, Osborne Park Hospital Memory Clinic (Memory Clinic)

16 The report states a diagnosis of likely mixed type Alzheimer's and vascular dementia had been made in respect to AQ. AQ was reported still to be living on his own and had been doing 'pretty well'. There had been no safety concerns since the previous review. The daughter, S, was keen to have services brought back into AQ's home as she was dealing with her own carer stress. AQ was said to be receptive to support services and to the plan of going into a residential aged care facility. A further review was to take place in three months.




23 June 2015, Dr RC, GP

17 Dr RC states that he was aware that AQ was intending to move into the rural property with his daughter and son­in­law. His assessment was that although AQ had been diagnosed with dementia, that AQ understood the plan to move and that he had the mental capacity to make an informed decision about it. Dr RC assessed AQ as having the capacity to make decisions regarding his personal healthcare and living situation and financial affairs. He was also assessed as capable of executing an EPA.




30 July 2015, social work review at Osborne Park Day Hospital

18 The social worker states that she had met with AQ and S on 2 June 2015. AQ was reported to have participated appropriately in the discussion. He was able to express that he wanted to continue to live at home and that he was agreeable to accepting some formal services.




The oral evidence of Dr RC, GP at the hearing on 11 August 2015

19 The evidence of Dr RC can be summarised as follows.

20 AQ has been diagnosed with dementia. Dr RC says that in his view AQ has some insight into his dementia in that he will deteriorate and need increasing assistance although the progress of the illness has been 'quite slow' (T:18; 11.08.15).

21 Dr RC states that typically a diagnosis of dementia leads to a reduction in memory and concentration and a reduced ability to make decisions. The most recent mini mental state examination (MMSE) for AQ was undertaken at the Memory Clinic on 2 June 2015 and in that test AQ scored 23/30. Such a score, which cannot be read on its own, but which needs to be interpreted by way of a clinical judgment, can mean that a person, whilst still being able to live independently, will be in need of some supervision.

22 Dr RC opines that there would be some things a person with a MMSE score of 23/30 would not be able to do such as '… making complex financial decisions, making decisions about what they want to do with a certain amount of money and stuff like that' (T:16; 11.08.15). However, Dr RC states that he had no knowledge of AQ's finances and did not specifically assess his financial cognitive abilities.

23 Dr RC assesses AQ as understanding '… the implications of selling a house, of moving there [to the rural property], of being further away from medical attention, and he appeared to understand the implications of those decisions quite clearly' (T:16­17; 11.08.15).

24 Dr RC states that although AQ has problems with short­term memory, he is able to take in information that is given to him and make a decision at a point in time. If given advice AQ would be able to understand that advice although Dr RC states that he could not be sure whether AQ would feel he needed to seek out that information or advice. Dr RC states:


    The ability to make a decision with the information in front of him I don't think would be impaired by that short term memory. So it's an inability to remember something that's in the very recent. Something that's medium­term, long­term won't be affected by that.

    (T:19­20; 11.08.15)


25 AQ is assessed by Dr RC as being capable of making the decision to move to the rural property to live with his daughter, S. AQ is said to understand the implications of needing increased care as the dementia progresses and is planning for that inevitability. AQ is also assessed as capable of making treatment decisions including decisions about treatment alternatives.

26 Dr RC assesses AQ as understanding the implications of gifting some of his assets.




2 September 2015, Memory Clinic

27 At the hearing on 12 August 2015, and in the knowledge that AQ was due for an appointment with the Memory Clinic on 1 September 2015, I decided to adjourn to obtain further specialist opinion on AQ's current cognitive ability including whether he had the capacity to enter into the contract to purchase the rural property and understand the consequences of that transaction. AQ was assessed on 1 September 2015. The report of that assessment dated 2 September 2015 was received by the Tribunal on 7 September 2015.

28 The report can be summarised as follows.

29 AQ was accompanied by S during the assessment to provide support. AQ understood the reason for the assessment.

30 AQ was diagnosed with a mixed Alzheimer's and vascular dementia in February 2015. At that time cognitive testing revealed an MMSE score of 22/30 consistent with mild to moderate cognitive impairment. He was commenced on special medication for his dementia. The most recent MMSE score of 25/30, being a two to three point improvement, was considered significant in the post­treatment phase.

31 AQ was able to describe specifically his assets and income. He said he had previously bought the rural property in joint names. He was at first reluctant to give the reason behind that decision but then answered that he wanted to protect his daughter, S, from her siblings should he happen to pass away in the future. He explained that S had always been supportive of him. The rural property was now held in AQ's name only. That was done to minimise the potential consequences and financial disputes that had since arisen.

32 Overall AQ demonstrates an understanding of his financial situation and is able to explain his decisions and how he weighs up the necessary information.

33 AQ demonstrates a good understanding of his medical conditions, investigations and treatment. He is aware that his ultimate destination is residential care in an age care facility should he and his family be unable to meet his care needs at home. AQ remains independent with all personal activities of daily living including showering, dressing, grooming, toileting and medications. He has a good support system and living arrangements. S is his main carer. He does not report any significant concerns with recall, repetition or word finding difficulty.

34 Under the heading 'Impression' the Memory Clinic team concluded:


    1. There is no clear evidence of lack of financial capacity or of any current risk associated with finance management given that the situation with the property dispute has now been resolved, as the current [rural property] is now solely under [AQ]'s name.

    2. I could not find any evidence currently of risks to health or safety due to neglect of health, hygiene or medical conditions; although I did not do a detailed assessment on this.

    3. Stable Alzheimer's dementia on cholinesterase inhibitor with no suggestion of decline in cognition.

    These conclusions are based on the information provided in the interview to me today, which I have not been given reason to doubt.


35 The plan of the team at the Memory Clinic was to refer AQ to the Clinical Psychologist for a detailed cognitive assessment and a review in the Memory Clinic four months post that assessment.


The evidence and submissions of AQ

36 AQ states that he does not consider that he has any difficulties in making his own decisions. He accepts that he has dementia but describes it as 'mild' (T:10; 11.0815). He does not accept that he has any problems with his memory.

37 AQ says that he is currently living with S because he cannot live in the previous property due to its run­down condition.

38 AQ states that he decided to sell the previous property rather than have it redeveloped because any redevelopment would take too long. He says that he received a fair price ($900,000) for the previous property and purchased a property of equivalent value (rural property). AQ says that he intended to live in the rural property with S and JB. He says his daughter is a qualified nurse and has been very good to him over the years. He states:


    Well, I looked after my mum until she was about 94 so I know what this is all about through personal experience and I never cracked on her and she never cracked on me and I'm living the same life.

    (T:13; 11.08.15)


39 AQ states that he had intended to purchase the rural property in his name and the name of S '… because she's literally my carer' (T:12; 11.08.15). AQ says that he would be paying for the rural property and that S would pay for her share '… with her time and that looking after me' (T:12; 11.08.15). AQ says that S has not been able to work with all that had happened and he is assured that S and her family will provide for his care.

40 AQ states that he had discussed his future accommodation and care needs with S and JB for some time and he had decided that he wanted something done quickly. He had initially expected the rural property to be owned jointly by himself and S.

41 AQ says that apart from S he has little to do with his other children and he believes that they are after his money. AQ states that he does not trust his son (the applicant) and does not trust his other children other than S.

42 When asked what would happen to his estate when he died, AQ says that he has a will and all his children are his beneficiaries.

43 AQ says that if he can no longer live in the rural property then he expects that S will pay for him to go into full­time care by selling the rural property although he does not anticipate that will happen for some time.

44 When later in his evidence it was put to AQ that if the rural property was owned jointly and it would therefore not form part of his estate upon his death, would he consider holding the property in his name only, he said '[w]ell, I can do that if you want to do that' (T:55; 11.08.15). AQ says that he would be prepared to change the ownership structure on the basis that 'I will put it solely in my name because I haven't got it yet' (T:58; 11.08.15).

45 At the hearing on 25 September 2015, AQ stated that he had been living in the rural property with S and JB for about five weeks and that he was very happy there.




The evidence and submissions of D (applicant/son) and E (his spouse)

46 D refers to telephone contact he had with AQ and S in the first half of 2015. In one telephone conversation, AQ said that he was going to develop units on the previous property and that he had already spoken to a local town planner. D thought that was a good idea as although he was a town planning consultant, it would be more practical to have local advice, given that he lived outside of Western Australia. D said he was more than happy to help AQ and offer advice.

47 D states that he again called AQ on 16 June 2015 at which point AQ mentioned that he had sold the previous property and that the proceeds were going to be used to buy the rural property in the name of S so that he would not lose his pension.

48 D states that he immediately called S and she confirmed what AQ had said about the purchase of the rural property. The call ended in an argument.

49 D says that on 20 June 2015 he received a distressed voicemail message from AQ who said he was in serious trouble and wanted him to come to Perth to meet with him. D contacted AQ who said that he was very apprehensive about the sale of the previous property and the move to the rural property. In another phone call on the same day, AQ said that amongst other things S had advised she did not want D in AQ's will. D says he suggested a family agreement be drawn up which AQ accepted was a good idea. AQ subsequently contacted D to advise that JB had said any family agreement would be a waste of time and expense and AQ concluded that D no longer needed to come to Perth.

50 D says that he and his wife decided to come to Perth and did so towards the end of June 2015. They could not find AQ and decided to visit S upon which they were told that they were not welcome. D says that he contacted the police and asked that a welfare check be carried out in respect to AQ. The police advised D that they had seen AQ at S's property, that he appeared in good spirits and that he did not want to see him.

51 D states that S was estranged from AQ subsequent to the divorce of their parents from 1985 to about 2008. He states that S became reacquainted with AQ about seven years ago. D states that he too was estranged from AQ from 1985 to 1996 but has since had a healthy relationship with him.

52 D states that he was not advised when AQ executed the EPA in 2009 and also when S and JB initiated the sale of the previous property.

53 As regards the question of AQ's capacity, D states that it is evident that AQ's general health, and more specifically his mental capacity, is in decline given the diagnosis of Alzheimer's disease and the symptoms of both short­term and long­term memory loss. D regards the property transactions as complex legal matters with potentially damaging consequences if the rural property was not purchased solely in AQ's name, including if AQ and S had a falling out and if he became too unwell and needed care in an aged care facility. D says he is also concerned about the effect on AQ's pension if he gifts part of his estate to S by way of the purchase of the rural property.

54 It is alleged by D that both S and JB have 'deliberately deceived and defrauded my father to consume his estate and remove other family member[s] from his inheritance. They have taken advantage of my father's disability to make reasonable judgments regarding his financial affairs and should not be allowed to continue to act as his Power of Attorney' (submission 7 August 2015).

55 The submission of D is that the Public Trustee should be appointed as the administrator of the estate of AQ and that the Public Advocate should be appointed as his guardian.

56 E (spouse of D) states that D has regularly contacted AQ and tried to find out about AQ's welfare several times during 2015.

57 E states that D had spoken with AQ about the possibility of developing the previous property and believes that AQ could have made a substantial profit from the redevelopment. She says that the previous property was not advertised and so in her view AQ would not have achieved the best price for that property.

58 E submits that there are other options regarding AQ's accommodation that should have been presented to him, for example, a unit in a retirement village where he could have had assisted care thereby removing any care burdens on S and JB in the future.

59 E says that she overheard the conversation in June of this year that D had with AQ at which AQ advised that he had sold the previous property and was going to move to the rural property to live with S and JB and further that the property was going to be in S's name so that he would not lose his pension.

60 E states that D then contacted S and she responded aggressively and angrily when he asked why she did not come to him for redevelopment advice.

61 E says she was horrified when she found out the rural property was to be purchased in the name of S meaning that AQ would be precluded from receiving the pension.

62 E states that on the morning of 20 June 2015, AQ left a voicemail message that was played to her by D and which had AQ stating that he needed D's help, that the matter was serious and D should come to Perth. A long phone conversation ensued between D and AQ with AQ expressing the concern that S wanted all his money and could not be trusted. In a subsequent phone call on 22 June 2015, AQ said to D that S had convinced him that she was doing the right thing. E says she spoke with AQ and that he said that the rural property was going to be 'his house' (submission 6 August 2015).

63 E states that she is concerned that S is AQ's attorney under an EPA. She submits that the Public Trustee should be appointed the administrator of AQ's estate. She supports a proposal for AQ to purchase his own property in a retirement village where he could keep his independence but have access to care. E submits that given the family history and relationship problems, that both she and D want AQ to not have to rely on any family member for his care. She believes that AQ will be isolated from the community, D and his grandchildren if S remains in control of the decision­making.




The evidence and submissions of S (daughter) and JB (son­in­law)

64 S states that some years ago, AQ raised the subject of his future with her and JB. AQ said that he knew who would be looking after him (S and JB) when the time came and wanted to protect her and JB.

65 S states that she and JB had been providing support to AQ when he was still living in the previous property. AQ's increasing needs meant that S had to give up permanent employment and commence casual work so that she could have the flexibility to be available to attend to his needs.

66 S states that the previous property had deteriorated to the extent where it had become uninhabitable and AQ was at risk of injury. In addition, AQ was not looking after himself optimally and did not want support in the home by external carers under a care package. AQ had been approved for residency in an age care facility but he was opposed to such a move.

67 S states that she, JB and AQ had jointly sought a solution to the problem of finding suitable accommodation for some time. S's property was not suitable as it was too small. S says that the rural property was found and AQ was very enthusiastic about moving to that property given its country setting and disability access. S says that the decision to move to the rural property had been made by AQ over many months and that he was not 'bulldozed' into making the decision. S submits that AQ knew what he wanted (T:30; 11.08.15).

68 S says that she is very surprised with D taking a sudden interest in AQ's affairs and she submits that his motivation is purely financial. She states that D has had only very infrequent contact with AQ and D has never offered assistance in supporting AQ's care needs. S says that she ultimately decided to press ahead with assisting AQ without consultation with D.

69 S submits that D is angry that AQ did not redevelop the previous property as he had recommended.

70 S states that in her conversations with AQ he expressed a concern that D was after his money. S confirms the visit to AQ by D in June 2015 and that at that time AQ had said that he did not want to see D.

71 S states that another daughter of AQ, M, has received regular financial support from him as she is a single mother and did not work for many years. S says that some years ago, M approached AQ telling him she wanted him to sign his house over to her. When he refused, M abused him and threatened to cut off all contact with his grandson. The altercation led to action for a restraining order. S submits that this had a traumatic effect on AQ. S states that D was made aware of these events but did not offer support or wish to be in any way involved.

72 S submits that AQ knows what he wants and is happy living with her and JB. She states that she is offended by D's attack on her motives and behaviour.

73 S says that other daughters of AQ, N and J, have had no contact with him. S describes the family as '… a very fractured and dysfunctional family' (submission 15 July 2015).

74 As regards AQ's functioning, S states that although AQ is 'slower' than he used to be, he is not a 'fool' (T:30; 11.08.15). S states that AQ employs a number of strategies to assist his memory. He needs to be given time to complete his train of thought and he also tires easily. The medication which AQ has been given for his dementia has had a good effect.

75 AQ is said to attend to his activities of daily living with someone standing by when he showers because he is at risk of falling as he is very unsteady on his feet. He no longer uses a motor vehicle and S states that she takes him shopping and to his regular medical appointments.

76 S says she has given AQ a mobile phone that he can operate easily and which contains the numbers of family members on 'speed dial'.

77 S states that AQ will be able to access a care package when his needs change. Respite care is also available and S says that she is attempting to arrange for AQ to continue attending a day centre which he enjoys immensely. S states that she has access to family support at the rural property.

78 Subsequent to the hearing of 11 August 2015, S, through her legal representative, submitted as follows. The previous property used to belong to AQ's mother (mother). As the mother became frail, a family agreement was reached to the effect that AQ would reside with his mother at the previous property and be her carer, and in exchange the property would be transferred into AQ's name. The previous property was subsequently transferred from the mother to AQ in 1988. As the mother's condition deteriorated over the years, AQ continued to reside with her to care for her with the assistance of Silver Chain. AQ's mother passed away soon after being admitted into a nursing home and AQ continued to reside in the previous property which was by then registered in his sole name. S submits that when AQ gave evidence about the time he looked after his mother, who it was understood also suffered from dementia, he may have likened the present situation to that earlier situation when he became his mother's carer.

79 S, through her counsel, is said to be happy for the rural property to be held solely in the name of AQ.

80 At the hearing on 25 September 2015, at which time AQ had moved to the rural property, S states that in her view AQ's living circumstances are vastly improved. She says that AQ is extremely happy, has everything that he needs including the company of her, JB and other family and friends. She states that care by external care providers is not yet required for AQ in the home. She says that AQ is 'fairly independent' (T:17; 25.09.15).

81 JB states that he has been caring for AQ for at least five years. He says he has talked to AQ on a daily basis, every morning and every night. JB says that because he cares for AQ he wanted his name removed from the contract for the rural property because 'I do not want to be any part of this' (T:34; 11.08.15). JB states that he believes AQ can make his own decisions.

82 When asked why the balance of the funds from the sale of the previous property after the purchase of the rural property were to be transferred to a bank account in his and S's name, JB says that AQ had not wanted to give his banking details to the settlement agent and it was the intention that when the funds were received they would then be transferred to AQ's bank account.




The evidence and submissions of N (daughter of AQ)

83 N states that she does not agree with S's description of the family as fragmented and dysfunctional. She says that the daughter, J, has kept her distance from all family members but submits that the dysfunction relates more specifically to S's interaction with family members. She says that she is suspicious about the motives of S and JB re­establishing contact with AQ around 2008 after an absence of 20 years.

84 N states that, in her view, the daughter, M, has had the closest and longest bond with AQ. D has also maintained an affectionate connection with AQ for a considerable amount of time.

85 N states that she was shocked and appalled when in 2000, M had been arrested for allegedly assaulting AQ and stealing a tea set. N submits that in this action S had gone to extreme measures to make it appear as if M was a threat to AQ's safety. N says that M was found not guilty and her view is that S was attempting to isolate M from AQ to achieve her long­term goal to control AQ's assets.

86 N states that S insisted that AQ apply for a restraining order against M only after M had been found not guilty of the criminal charges.

87 N submits that there is no evidence to support S's contention that M attempted to bully AQ into signing his house into her name.

88 N submits that the signatures of AQ on various documents including an EPA dated 20 February 2009, a 'timber inspection' dated 15 June 2015, an undated transfer of land, and a settlement advice dated 30 June 2015 reveal inconsistencies in AQ's signature.

89 N submits that the sale of the previous property was secretive and did not appear to have been advertised on the open market to achieve the best price. In addition, she supports the view that redeveloping the previous property would have been a much more profitable option. She says she was surprised that S and JB did not offer to contribute to the purchase of the rural property.

90 N states that on 27 June 2015 she heard D replay a voicemail message from AQ. AQ spoke slowly and sounded anxious. N recalls that AQ pleaded with D to come to Perth because he was having trouble with 'them' which N interpreted to mean S and JB. This, according to N, validated her and D's concerns 'that our father was a victim of elder abuse and fraud' (submission 7 August 2015).

91 N states that to the best of her knowledge, S had at no time made any other family member aware of her predicament in the care of AQ nor asked for assistance. Rather she had deliberately isolated AQ and herself from all family members. N says that she had supported her mother living independently for over 20 years and therefore could relate to the challenges facing S and JB in caring for AQ.

92 N submits that the rural property is not suitable for AQ who is elderly, at risk of falls and susceptible to being disoriented. The house is isolated on a large block and surrounded by large properties with steep terrains and a steep gravel driveway. N submits that such an environment will not promote independence for AQ in his local community.




The evidence and submissions of M (daughter of AQ)

93 M states that she is no longer a part of AQ's life.

94 M states that she forged a close relationship with AQ (who she stated was an alcoholic), particularly in her teen years which continued for many years as she raised her son as a single mother. She lived very close to AQ and they would visit each other regularly.

95 M says that she tried to act as a conduit between AQ and his other children over the years, however AQ did not have close relationships with his children.

96 M states that S ceased contact with AQ after their parents' separation and divorce in 1984 and 1985. AQ is said to have expressed his dislike of S.

97 M states that in about 2008, S re­established a relationship with AQ. She says she was aware that S was saying negative things about her to AQ. It is the view of M that S deliberately attempted to estrange her from AQ for 'monetary gain due to his age' (submission 8 August 2015).

98 As regards the criminal charges, M believes that AQ was not fully aware of that legal action and that he was influenced by S.

99 M submits that S is now in a position of controlling AQ's assets and that has ensured that her relationship with AQ is at an end. M states that she is frightened that S will abuse her power and not act in AQ's best interests.

100 M submits that she has spent the most time with AQ and is in a position to know his character well. She says that he would never have signed over his property leaving himself vulnerable.

101 M states that she is concerned that AQ is isolated in the rural property and that he has never expressed any wish to live in a rural area.




The evidence and submissions of J (daughter of AQ)

102 J states that her concern is for AQ's wellbeing and that she wants nothing from him financially. She has a view that AQ is not able to fully understand the implications of his financial vulnerability if his estate is transferred to S and JB.

103 J states that she is concerned that the purchase of the rural property will negatively impact on other accommodation alternatives that AQ might require.

104 J states that she had phone contact with AQ on 17 July 2015. AQ told her that one day he would probably end up in an aged care home as was the case with his mother. AQ is also reported to have said that he felt sorry for S and that she had had a hard life. Whilst not questioning the motives of S, J states that it is important that AQ's needs take priority over the needs of S.

105 J states that in the phone conversation on 17 July 2015, AQ said that he wanted a comfortable place to live, that he felt positive towards S and D and that he was agreeable to living with S and JB. J submits that AQ becomes confused very quickly and that he is not able to comprehend the implications of transferring his financial assets to S and JB or the possibility of the relationship with S not enduring or the implications of losing his financial independence and his current vulnerability.

106 J states that it is her experience that AQ does not believe he has dementia or that he has any memory problems. She submits that his memory loss is significant and that he is unable to track conversations and confabulates.

107 J states that it is her belief that if AQ lives with S and JB that it is unlikely she will be able to have an unrestricted relationship with him. In respect to the family J states '… my parents had an extremely destructive, dysfunctional relationship, and with their children, and created such between the children. That has caused considerable damage' (submission 11 August 2015).




The reports of the Public Trustee dated 22 July 2015, 5 August 2015 and 24 September 2015

108 In the report of 22 July 2015, the Public Trustee states that he was able to confirm that the previous property had been sold for $970,000. Settlement was due to take place on 14 August 2015 with the proceeds to be applied to the purchase of the rural property and the balance of funds to be paid to an account held in the name of S and JB.

109 The purchase of the rural property was the subject of a contract entered into by S and JB on 15 June 2015 subject to the sale of the previous property. A substituted transferee application form signed on 25 June 2015 removed JB from the purchase and included AQ as joint tenants with S (contract).

110 With this information the Public Trustee sought a further order under s 65 of the GA Act which was given on 23 July 2015.

111 In the report of 5August 2015, the Public Trustee states that a caveat had been registered against the previous property. In discussions with JB, it was reported that S would be happy to transfer the purchase of the rural property solely into AQ's name. At that time the Public Trustee was seeking a valuation of the rural property to ascertain if the purchase price was reasonable.

112 In the report of 24 September 2015, the Public Trustee states that he had received the proceeds of sale of the previous property. The Public Trustee states that consideration was given to AQ's wishes to purchase the rural property and how best to proceed to protect his interests.

113 The Public Trustee decided that it was inappropriate for the contract to progress as AQ would have completely funded the purchase of the rural property yet only have a half interest. The Public Trustee decided to obtain a valuation of the rural property and that valuation confirmed that the initial purchase price was fair and reasonable. The Public Trustee also consulted an independent occupational therapist to assess the suitability of the property as a home for AQ. The opinion of the occupational therapist was that the rural property was suitable to meet AQ's current and future mobility needs. Some minor modifications might be required in the future but it is likely these modifications would be required in any property.

114 The Public Trustee states that he considered that the acquisition of the rural property was in AQ's best interest if it were in his name solely. Arrangements were made to cancel the contract and a new contract was entered into to purchase the rural property in AQ's name. Settlement of the purchase occurred on 3 September 2015.

115 The Public Trustee states that AQ has continued to collect his own pension and manage his day­to­day expenditure.

116 The Public Trustee reports the estate of AQ as consisting of the rural property and cash funds of approximately $6,000.




The decision of the Tribunal

117 In S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 at [105], Heenan J said:


    … I am satisfied that on any reasonable view the evidence before the single-member, equivocal and untested as it was, did not justify any finding that a guardian should be appointed or that an administrator should be appointed in view of the seriousness of those allegations and the need for satisfactory proof to be established: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, 361 ­ 361. The more so is this the case when it is necessary for the evidence to displace the statutory presumption of capacity contained in s 4(3) of the G & A Act. The necessity for the contrary to be proved to the satisfaction of the SAT (s 4(3)) does not diminish the standard of proof or permits some standard less than the Briginshaw standard to be adopted and applied. This is because in the exercise of its functions, and in particular in determining whether or not a certain matter has been established to the satisfaction of the SAT, the tribunal is required to act in conformity with the law which has addressed and established the standard of proof which must be discharged.

118 The Briginshaw approach (Briginshaw v Briginshaw (1938) 60 CLR 336) has been characterised as follows in Medical Board of Australia and Bowles [2014] WASAT 115 at [6]:

    … That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.

119 This approach requires the Tribunal to 'feel an actual persuasion of the occurrence or the existence of the relevant facts': Legal Profession Complaints Committee and A Legal Practitioner[2013] WASAT 37 at [16].

120 The Full Tribunal in GC and PC [2014] WASAT 10 at [36] put it in this way:


    … The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decision­making capacity removed from them and a substitute decision­maker appointed for them under the Act. Because of the significant consequences for an individual of having their decision­making capacity removed from them and a substitute decision­maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.

121 There are at least two important elements that comprise the environment in which the applications for guardianship and administration orders were made. The first is that AQ has been diagnosed with dementia which is a progressive condition and means that he will require increasing care and support as his mental and physical functioning decline. The second element is the relationship that AQ has with his children and the relationships between the children.

122 I accept the evidence that subsequent to the diagnosis of dementia, AQ realised that his functioning would decline over time and that he would need to make provision for his future care. He made it clear in his evidence that the experience he had with caring for his mother who also had been diagnosed with dementia, was an important impetus that propelled him to plan for the time he could no longer live independently.

123 The need to plan for his future care needs was made by AQ in the context of a very difficult relationship he had had with his children over a long period of time and an ongoing antagonistic relationship with some of them. Both S and J expressed in strong terms the nature of those relationships using terms such as 'dysfunctional' and 'extremely destructive' to describe the way in which AQ's family had often related. I accept the evidence of S and J in this regard because amongst other things their view of how the family members relate was evident during the course of the Tribunal proceedings.

124 I am satisfied that what I have just described could account for AQ in the last 12 months or so having a variable relationship with some of his children; for example, relying upon S in the main but at a point expressing concerns about S with his son D.

125 In my view, the overriding concern of AQ has been to ensure that he has someone to care for him as the dementia progresses and further that he should not be placed in a nursing home until care in the community becomes impossible. I am satisfied that his decision­making in that regard has been informed by the experience he had caring for his mother during her decline. The evidence shows that in this period AQ had the most fruitful relationship with his daughter, S, and son­in­law, JB. They had been assisting him while he lived in the previous property and, on the evidence, were open to an arrangement whereby he could be guaranteed accommodation and care as his dementia progressed.

126 It is of course the allegation of the applicant and some of AQ's children that S and JB took advantage of AQ's situation to benefit themselves in the purchase of the rural property. That issue mainly goes to the question of whether AQ is in need of an administrator to protect his estate. The other question which is covered by the guardianship application, is whether AQ is in need of someone to make personal decisions because he is unable to do so himself.

127 The medical evidence of Dr RC and the medical team at the Memory Clinic is supportive of the view that AQ made a rational or reasonable judgment in the planning for his intermediate and longer term care given the diagnosis of dementia. As far as his care needs are concerned, the judgment by AQ was that he would be supported by S and JB to prolong his ability to live in the community. I accept that he had discussed this issue with S and JB over a period of time and that the situation became more pressing given the rundown condition of the previous property. As I have already found, AQ used the experience with his mother in the making of the decision that ultimately led to the purchase of the rural property.

128 I accept also that AQ ultimately trusts S and JB to do the right thing by him and that in part is based on the assistance they had and are continuing to give him, including him living in their property prior to the purchase of the rural property and recently moving there.

129 I accept that the alternatives possibly available to AQ, moving to a nursing home or, as suggested by some of his children, moving to a retirement village, is not want he wants.

130 As far as his medical needs are concerned, Dr RC assesses AQ as capable of making treatment decisions including decisions about treatment alternatives. The Memory Clinic states that AQ has a good understanding of his medical conditions, investigations and treatment. I accept that evidence.

131 Although s 43(1)(b) of the GA Act is broad in scope (see above), I am not convinced to the required standard that the evidence demonstrates that AQ is incapable of looking after his own health and safety because he has effectively provided for his current care in the arrangement with S and JB to live in the rural property. I am also not satisfied that AQ is unable to make reasonable judgements in respect to matters relating to his person (s 43(1)(b)(i) and (ii)) particularly on the evidence of Dr RC and the Memory Clinic concerning his ability to understand the implications of the move to the rural property and his ability to continue to consent to his own treatment.

132 I am able to find on the evidence that AQ is in need of oversight in the interests of his own health and safety (s 43(1)(b)(iii)) given the evidence of S and Dr RC that he needs to be monitored in the context of a decline in his functioning as a consequence of a progressive dementia. Even so, I am not satisfied that, in AQ's particular circumstances, such a finding warrants a further finding that he is currently in need of a guardianship order given the accommodation and care arrangements that have been put in place at the rural property.

133 For the reasons given above I dismiss the guardianship application.

134 As already stated in these reasons, the apparent trigger for the making of the applications concerns the sale of the previous property and the subsequent purchase of the rural property.

135 It is alleged by the applicant, D, and supported by some of his siblings that under the influence of S and JB, AQ pre­emptively sold the previous property for less than he could have received from a redevelopment, and then allowed S and JB to secure an interest in the rural property for no consideration.

136 It is alleged by D and others that because of his dementia AQ was and remains unable to protect his interests in either the previous property or the rural property.

137 The evidence initially given by AQ is very clear in this regard; he was expecting to purchase the rural property using his funds and that it would be held jointly with S. His reasoning was that S would contribute to her share of the rural property by way of a caring role for him given that she had to forego her full­time employment to enable that to occur.

138 As I have already stated, the context in which AQ made the decision, and which I accept, is a desire not to have to move to a nursing home; the assistance he received and was promised in the future by S and JB; no clear alternative accommodation that he was willing to accept; the often fractured relationship he had with his other children and the experience he had had caring for his mother.

139 I accept the submission that it was more likely than not that the financial arrangement he had entered into with his mother and other family members where the mother's property was transferred to him on the basis that he would care for his mother in her home, was the initial template that AQ used in his discussions with S and JB.

140 I am satisfied however, that AQ did not understand the full financial impact that holding the rural property jointly with S (and thereby gifting a half share of the rural property to S), would have on his continuing eligibility to receive the age pension and also what would happen to the ownership of the rural property upon his death.

141 Even so, I am not satisfied to the required standard that AQ's lack of understanding was as a consequence of the dementia rather than a lack of knowledge that many capable people in the community would have about these types of matters and also, as Dr RC said, whether AQ would feel the need to obtain additional information to inform his decision­making. In so finding I note the evidence of Dr RC regarding the ability of a person with dementia (and a score of 23/30 on a MMSE) to make complex financial decisions but that being a general comment or observation rather than an opinion on the specific capacity of AQ because he did not undertake an assessment of AQ's capacity to make decisions about his estate.

142 I accept that in the transaction to purchase the rural property, AQ trusted S and JB and that also he wanted the situation to progress quickly as when he said in his evidence that was the reason he did not proceed to a redevelopment of the previous property, which in his view would have taken too long.

143 As for the alleged influence of S and JB in order to gain a financial benefit from the purchase of the rural property contrary to the interests of AQ, that of itself, even if correct, could not alone determine AQ's capacity.

144 As Prichard J said in ThePublic Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 at [16] citing Dalle-Molle v Manos (2004) 88 SASR 193:


    … the fact that a person suffers from a condition which renders them vulnerable to exploitation or at risk of making imprudent decisions, is not determinative of their capacity to enter into a particular transaction. Evidence as to their condition, and the effects of that condition on their decision­making ability will be relevant to the determination of capacity but must be considered along with all other relevant evidence.

145 I am satisfied that by virtue of the diagnosis of dementia that AQ has a mental disability as defined in s (3)(1) of the GA Act, but I am not satisfied to the required standard that by reason of the mental disability that AQ is unable to make reasonable judgments in respect of matters relating to all or any part of his estate (s 64(1)(a) of the GA Act).

146 Even if I am wrong in this, I am not satisfied that AQ is in need of an administrator (s 64(1)(b) of the GA Act). As evidenced in the reports from the Public Trustee, ultimately a contract was entered into on behalf of AQ (and with which S agreed), to purchase the rural property solely in AQ's name. The estate of AQ at that point consisted of the rural property and bank funds of approximately $6,000 including an entitlement to the age pension.

147 I am satisfied that the rural property is not at current risk and that the residual estate can easily be managed by AQ with, if necessary, some assistance from S and JB.

148 As AQ's dementia progresses he will require increasing assistance to manage his estate. AQ executed an EPA in 2009 with S and JB appointed as his joint and several attorneys. The instrument cannot come into effect until a declaration of AQ's legal incapacity is made by the Tribunal. It is the responsibility of the attorneys to monitor AQ's situation and with medical assistance decide at which point an application should be made to the Tribunal for a declaration of legal incapacity so that a decision can be made as to whether the EPA should be brought into force. At that time the children of AQ will have the opportunity to put to the Tribunal how, ultimately in their views, AQ's estate should be managed.

149 For the reasons given above I dismiss the application for an administration order.




Orders


    1. The applications for guardianship and administration orders are dismissed.

    2. The order under s 65 of the Guardianship and Administration Act 1990 (WA) made on 23 July 2015 is revoked.

    3. Leave is granted to the Public Trustee of Western Australia to withdraw the application made under s 82 of the Guardianship and Administration Act 1990 (WA) and the application is withdrawn.



    I certify that this and the preceding [149] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

    ___________________________________

    MR J MANSVELD, SENIOR MEMBER


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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
GC and PC [2014] WASAT 10
Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161