BJT - [2022] WASAT 73

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   BJT [2022] WASAT 73
MEMBER:   DR E MARILLIER, MEMBER
HEARD:   16 MAY 2022, 3 JUNE 2022 AND 9 AUGUST 2022
DELIVERED          :   19 AUGUST 2022
PUBLISHED           :   24 AUGUST 2022
FILE NO/S:   GAA 604 of 2022
GAA 605 of 2022
GAA 460 of 2022
GAA 475 of 2022
GAA 2535 of 2022
PMT & NG
Third Party
DRT & NJW
Third Party

Catchwords:

Guardianship and administration - Enduring power of guardianship - Whether signature of substitute guardian required for valid appointment of enduring guardian - Whether signature accepts own appointment only for enduring guardian

Legislation:

Guardianship and Administration Act 1990 (WA), Long title, s 4, s 40, s 43(1), s 43(1)(b), s 64, s 104, s 108(1), s 110B, s 110E, s 110E(1)(e), s 110K, s 110L, s110N, s 110ZD
Guardianship and Administration Regulations 2005 (WA), Sch 1
Interpretation Act 1984 (WA), s 18, s 19(b)(ii)

Result:

Public Advocate appointed guardian
Public Trustee appointed administrator
Enduring power of guardianship found valid
Declaration of incapacity made
Enduring power of guardianship revoked

Category: B

Representation:

Counsel:

Third Party	:	Mr D Gordon and Ms M Adikari
Third Party	:	Mr A Bower

Solicitors:

Third Party	:	DFG Legal
Third Party	:	Solomon Hollett

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard on 16 May 2022, 3 June 2022 and 9 August 2022. The decision was delivered on 19 August 2022. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and setting out).

Background

This group of matters relate to BJT aged 70 years of age. BJT suffers from dementia and a series of quite extraordinary and unfortunate events have occurred over the last nine months as a consequence of his family members having conflicting ideas about how he could be best supported in the circumstances. These differences escalated to the point where applications under the Guardianship and Administration Act 1990 (WA) (GA Act) were made by his wife PMT to the Tribunal in late January 2022. She sought a declaration of incapacity that would bring into force an enduring power of guardianship by which BJT had appointed her as his enduring guardian in November 2021 with his son from his first marriage DRT as substitute (s 110L); a declaration that that the enduring power of guardianship was valid (s 110K); and after a directions hearing on 9 February 2022 additionally sought consideration of whether a guardian and administrator should be appointed for BJT (s 40) and sought revocation of an enduring power of guardianship dated 28 January 2022 in which BJT appointed his daughter NJW from his first marriage as his enduring guardian again with DRT as substitute (s 110N).
Concerns about BJT's memory had first arisen in 2019. He had been referred to the local memory clinic and seen by geriatricians in 2020 and 2021. BJT was living in Busselton with PMT, his partner of the past 27 years (married for the last 12 years). BJT was advised by his geriatrician to organise an enduring power of attorney and guardianship in September 2021. He sought advice from a local legal practitioner and completed that task on 15 November 2021 (November 2021 EPA/EPG).
PMT signed the documents accepting her appointment. DRT was surprised that the documents did not name his sister NJW in any role and declined to sign to indicate acceptance of his own role as the substitute attorney and guardian.
From some time after his diagnosis, NJW and DRT encouraged BJT to undertake a treatment regime (regime) for dementia called 'Recode' which involved a diet inducing ketosis, naturopathic supplements and intense, structured brain training exercises. BJT had previously trialled prescription medication donezepil for two months under the care of the geriatricians and then ceased due to side-effects.
PMT and the extended family in Busselton attempted to support BJT who was keen to take every opportunity to try to preserve or improve his memory for as long as possible. However, NJW and DRT (who live in Perth) believed that the level of compliance with the 'Recode' regime was insufficient. They discussed with BJT and PMT the possibility of him moving to Perth for three months so they could support him in intensely participating in the regime. I note that BJT's geriatrician had advised him in September 2021 to cease the supplements due to the lack of evidence of efficacy.
On 26 December 2021 BJT was taken to Perth (after a family discussion where it was clear that at least some of the family in Busselton had deep concerns about the regime) and in the ensuing week PMT was surprised when their health insurance was changed from couple to single, and various household bills which had been shared or paid by BJT were changed so that they were in her name alone.
On 9 January 2022 BJT was taken to Busselton to pick up some of his possessions, purportedly because he had decided that he would stay in Perth. All parties agreed there was a very heated and at times physical confrontation between Perth and Busselton family members which lasted approximately four hours and was distressing for all involved.
On 14 January 2022 BJT had an appointment with the naturopath. PMT and some of the extended family attended and as the enduring guardian, PMT requested that BJT come back to Busselton. A further confrontation occurred, and police were called. The police recognised the right of the enduring guardian to make the decision about where BJT should live, and BJT returned to Busselton.
On 28 January 2022, NJW and DRT travelled to Busselton. DRT entered BJT and PMT's house from a neighbouring property and via a side door. He left the property with BJT via the same route, and they made their way to the car where NJW was waiting. They travelled to a nearby pharmacy where BJT signed an EPG appointing NJW, with DRT as substitute which they showed to local police to try to avoid their later involvement should PMT report BJT missing to the police when she discovered his absence from their home.
That same day after travelling to Perth, they attended a solicitor's office, and BJT signed another EPA and EPG appointing NJW as both the enduring attorney and guardian, with DRT as the substitute in both roles (January 2022 EPA/EPG).
In subsequent days, an application was made for a family violence restraining order (FVRO) protecting BJT from PMT and this matter was heard in the Magistrates Court on 4 February 2022.
A civil claim for return of possessions was also filed at around this time but then withdrawn.
Letters of revocation of the November 2021 EPA/EPG were prepared on 1 February 2022 by the solicitors who drafted the January 2022 EPA/EPG, and these were sent to PMT on 3 February 2022.
On 31 January 2022, PMT made the applications listed above to the Tribunal in an attempt to clarify who should be making decisions on BJT's behalf, with the desire to have him return to live with her in Busselton.

The principles to be observed

In making a decision the Tribunal must observe the following principles:
•the Tribunal's primary concern is the best interests of the person concerned;[1]
•every person is presumed to be capable of looking after his or her own health and safety; of making reasonable judgements in matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to the estate; until the contrary is proven to the satisfaction of the Tribunal;[2]
•orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of his or her freedom of decision and action;[3] and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned.[4]

The evidence before the Tribunal

[1] GA Act, s 4(2).

[2] GA Act, s 4(3).

[3] GA Act, s 4(4).

[4] GA Act, s 4(7).

The Tribunal considered the following written evidence:
•medical reports of general practitioners, Dr PB (1 February 2022) and Dr DC (21 February 2022), and specialist geriatricians Dr WB (12 April 2022) and Dr RC (30 May 2022);
•clinic letters of Dr DC (18 February 2022), Dr KT (29 September 2020, 30 March 2021, 25 May 2021), Dr WB (10 September 2021, 4 March 2022), Dr RC (16 May 2022);
•standardised mini mental state examination (MMSE) of 17 January 2022 score 22/30; clinical records of WA Country Health Services Southwest including formal cognitive testing from 29/9/2020 to 25/2/2022 (MMSE 26/30);
•copies of the November 2021 EPA/EPG prepared by Mr PV of Groven Legal, and an affidavit describing the circumstances of its creation from Mr PV;
•copies of the January 2022 EPA/EPG prepared by Mr K of Beacon Family Law;
•a copy of the January 2022 EPG witnessed by pharmacists;
•the application for a FVRO stamped received 4 February 2022 and the transcript of the FVRO hearing of the same date; and a minute of consent cancelling the interim FVRO on an undertaking by PMT that she will not attempt to contact BJT or enter the premises where he currently lives until the conclusion of the Tribunal proceedings and a Notification of Cancellation of the order dated 23 June 2022;
•photos of the daily routine visual prompt list, labelling of rooms and 'Family Tree' that have been prepared for BJT; and
•the Investigation report of the Investigator from Office of the Public Advocate (OPA), Mr H.
The Tribunal also received extensive written submissions from the legal representatives and the parties themselves.
Oral evidence was heard from BJT, PMT, DRT, NJW and members of the extended family and friends. BJT's ex-wife, C, who is now his fulltime carer (they are living in a home reportedly owned by DRT) made written submissions after the decision was reserved. I understood that she was attending as a support person and not to give evidence, which is why she was not called. I have not had regard to these submissions as they purport to give the wishes of BJT. I note that BJT gave evidence regarding his wishes directly to me at the May hearing, and also provided his views to Mr H as part of the OPA investigation and to the doctors. BJT appeared to be asleep for the majority of the June and August hearings.

Does BJT have capacity to make reasonable decisions in his own best interests in regard to personal and financial decisions?

I am satisfied that there is clear and cogent evidence that BJT no longer has capacity to make reasonable decisions in regard to personal or financial decisions as a result of the memory loss and confusion which the medical reports and letters show have become progressively worse over time since 2019 when BJT first started perceiving some memory loss (as reported in Dr KT's clinic letter of 29 September 2020). The reports and letters from Dr WB of March 2022 and Dr RC of May 2022 recognise that BJT has dementia which has progressed to the point where he is not capable of making financial, personal or legal decisions in his own best interests. They both give extensive examples of BJT's level of confusion, including that he had no recollection that C was his ex-wife, could not recall how he had come to live in Perth, thought that NJW and DRT were his children with PMT, and had no recollection of signing either the November 2021 EPA/EPG or the January 2022 EPA/EPG. I note that Dr WB's report was somewhat internally contradictory, as he indicated that BJT could not execute an EPA/EPG (and he had specifically explored that issue at the March consultation), but also in the letter says 'I think on the whole that BJT probably does have the capacity to decide on his guardianship and who looks after his healthcare and living situation'. He then refers to BJT's sundowning and confusion and suggests a second opinion is necessary. On 12 April 2022 Dr WB indicates in his report that BJT is not capable of personal, legal or complex financial decisions, or executing an EPA or EPG, and in May, Dr RC expresses the same view after conducting an independent assessment/second opinion. Dr RC also indicates that BJT is incapable of simple financial decisionmaking (because BJT had an inaccurate understanding of his income, who owned the home in which he is living, whether or not he paid rent, and what his address is).
I was satisfied by the evidence before me on 3 June 2022 that the presumption of capacity was rebutted in BJT's case by the medical evidence and the evidence provided by family members, the investigator and my own observation of BJT's difficulty in following proceedings (including constant turning to NJW who was sitting beside him for reassurance and seeking her input on the answers to questions when he was awake). I made the declarations of incapacity under s 43(1)(b) of the GA Act and am satisfied that a declaration of incapacity under s 110N can be made.
On that date, there were upcoming court proceedings in relation to the FVRO, and clearly an ongoing risk that medical treatment decisions might be needed for BJT at any time. Given that insufficient time remained to determine whether either the November 2021 EPA/EPG or January 2022 EPA/EPG could function as a less restrictive alternative for making decisions for BJT, I appointed the Public Advocate as limited guardian to act as next friend in those proceedings, and make medical treatment decisions if required (as s 110ZD of the GA Act did not reflect the current circumstances and BJT's preferences regarding who should make decisions for him as expressed to the investigator, Dr WB, Dr RC and myself). The making of this order pending final determination of whether a less restrictive alternative exists was supported by all parties.

Does either the November 2021 or January 2022 EPA/EPG stand as a less restrictive alternative that meets BJT's needs?

Section 104 of the GA Act sets out how a person can execute an enduring power of attorney:
(1a)A person who has reached 18 years of age and has full legal capacity may create an enduring power of attorney.
(1)An enduring power of attorney may be created by instrument -
(a)that is in the form or substantially in the form of Form 1 in Schedule 3; and
(b)in which the donor of the power declares that the power either -
(i)will continue in force notwithstanding his subsequent legal incapacity; or
(ii)will be in force only during any period when a declaration by the State Administrative Tribunal under section 106 that the donor does not have legal capacity is in force.
(2)An instrument is not effective to create an enduring power of attorney unless -
(a)there are 2 attesting witnesses to the instrument -
(i)both of whom are authorised by law to take declarations; or
(ii)of whom -
(I)one is authorised by law to take declarations; and
(II)the other has the qualifications specified in subsection (3);
and
(b)the instrument has endorsed on it, or annexed to it, a statement of acceptance in the form, or substantially in the form, of Form 2 in Schedule 3 executed by -
(i)the person or persons appointed to be the donee of the power; and
(ii)where applicable, the person or persons appointed to be the substitute donee of the power.
(3)A witness referred to in subsection (2)(a)(ii)(II) must be a person -
(a)who has reached 18 years of age; and
(b)who is not a person appointed to be a donee or substitute donee of the power.
Sections 110B and s 110E of the GA Act set out the basis on which a person may execute an enduring power of guardianship:
110BAppointing enduring guardian
A person who has reached 18 years of age and has full legal capacity may make an enduring power of guardianship appointing -
(a)a person as the enduring guardian of the person; or
(b)2 or more persons as the joint enduring guardians of the person.
110EFormal requirements
(1)An enduring power of guardianship is not valid unless -
(a)it is in the form or substantially in the form prescribed by the regulations; and
(b)it is signed by the appointor or by another person in the presence of, and at the direction of, the appointor; and
(c)the signature referred to in paragraph (b) is witnessed by 2 persons -
(i)both of whom are authorised by law to take declarations; or
(ii)of whom -
(I)one is authorised by law to take declarations; and
(II)the other has the qualifications specified in subsection (2);
and
(d)it is signed by the witnesses referred to in paragraph (c) in the presence of -
(i)the appointor; and
(ii)the person who signed it at the appointor's direction (if applicable); and
(iii)each other;
and
(e)it is signed by each person being appointed as an enduring guardian or substitute enduring guardian (an appointee) to indicate the appointee's acceptance of the appointment; and
(f)the signature of the appointee is witnessed by 2 persons -
(i)both of whom are authorised by law to take declarations; or
(ii)of whom -
(I)one is authorised by law to take declarations; and
(II)the other has the qualifications specified in subsection (2);
and
(g)it is signed by the witnesses referred to in paragraph (f) in the presence of the appointee and each other.
(2)A witness referred to in subsection (1)(c)(ii)(II) or (f)(ii)(II) must be a person -
(a)who has reached 18 years of age; and
(b)who is not -
(i)the appointor; or
(ii)the person who signed the enduring power of guardianship at the appointor's direction (if applicable); or
(iii)an appointee.
The November 2021 EPA/EPG was executed by BJT after a recommendation to do so was made by specialist geriatrician Dr WB on 10 September 2021 (implying that Dr WB felt at that time that BJT was in a position to appoint someone). He did this with the assistance of Mr PV, who took instruction from BJT on 5 November 2021 (an hour long inperson discussion) regarding his wishes, prepared the documents and emailed them to him for review on 9 November 2021 and witnessed BJT's signature, and PMT's signature indicating her acceptance on 15 November 2021. Mr PV gave oral evidence that he had raised with BJT and discussed some concerns regarding his plans for his will, and that BJT had been able to consider and alter his instructions appropriately. Mr PV was confident that BJT had capacity to instruct him and had no concern that undue influence was being exerted. Mr PV stated that there was no suggestion or hint of marital problems, that BJT and PMT seemed very amicable and concerned to ensure that each other would be adequately provided for should either of them die.
DRT stated that when he was sent the November 2021 EPA/EPG to sign his acceptance to be appointed as the substitute attorney and guardian, he was surprised that NJW was not named in any role. He noted that in previous instruments she had a role. I was provided with correspondence from Shaddick's Lawyers of 9 March 2021 to BJT and PMT following a meeting on 25 February 2021, including a draft EPG which was never completed by BJT. It named PMT and NJW as joint enduring guardians. As BJT did not adopt this instrument by signing it, I cannot regard it as clearly indicative of his wishes. I was also provided with a copy of an EPA of 13 September 2009, which BJT did sign, which appointed PMT and DRT as joint attorneys and NJW as the substitute should either of the joint attorneys die or become incapacitated. It is not possible to determine (because BJT cannot recall completing any of these instruments as per the evidence of Dr WB and Dr RC) why BJT may have chosen to alter his appointments at any point in time.

The Tribunal does not have the power to determine whether an EPA is valid, in the way that it does to declare an EPG valid or invalid (s 110K). I am satisfied that the process described by Mr PV and the letter of Dr WB indicate that BJT had legal capacity to make the enduring powers at that time. They do conform with the statutory form requirements.
The OPA investigator put the view that DRT's refusal to sign for acceptance of his role as substitute guardian (and substitute attorney) renders the instruments invalid in their entirety (that is, that DRT's action can invalidate BJT's appointment of PMT as his enduring guardian and her acceptance of this role). Again, noting that the Tribunal does not have the power to declare an EPA invalid, but does have such a power in relation to the EPG, I will discuss the statutory interpretation of s 110E(1)(e) with consideration of the text, context and purpose of the provisions.
Section 110E(1)(e) of the GA Act reads 'An enduring power of guardianship is not valid unless it is signed by each person being appointed as an enduring guardian or substitute enduring guardian (an appointee) to indicate their acceptance of the appointment'. The purpose of the subsection is to indicate a person's acceptance of his or her own appointment. Schedule 1 of the Guardianship and Administration Regulations 2005 (WA) states that the appointees can sign at the same time or at different times.
The principles outlined in s 18 of the Interpretation Act 1984 (WA) (Interpretation Act) state that:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
This is consistent with High Court authority:
'The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 47, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed'[5]
'The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose[.]'[6]
[5] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69].
[6] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [4].
The long title of the GA Act is:
An Act to provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs, to confer on the State Administrative Tribunal jurisdiction in respect of guardianship and administration matters, to provide for the appointment of a public officer with certain functions relative thereto, to provide for enduring powers of attorney, enduring powers of guardianship and advance health directives, and for connected purposes.
Section 4 of the GA Act states:
(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.
…
(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.
…
(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.
The long title and s 4 of the GA Act demonstrate a concern to make provision for decision-making where a person has a need for assistance, and to provide a number of ways in which this can be achieved, namely making an EPA, EPG and /or Advance Health Directive (AHD) while a person has capacity, or by the Tribunal appointing an administrator or guardian where a person has lost capacity. Section 4(4) and s 4(6) demonstrate the priority placed by the legislature on taking the least restrictive approach and preserving freedom of decision and action where possible.
Looking to extrinsic material to assist in the ascertainment of the meaning of a provision is supported under s 19(b)(ii) of the Interpretation Act:
… to determine the meaning of the provision when the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
The second reading speech for the GA Act includes the statement 'The framework of the Guardianship and Administration Bill gives people the freedom to function independently if they have the competence'. It also refers to the protection of civil liberties afforded by the right of appeal where guardianship or administration orders are made.
Taken together with the presumption of capacity articulated in s 4(3) of the GA Act, it appears that the GA Act seeks to provide opportunities for people to make arrangements for the management of their affairs in the event of future incapacity (through an EPA, an EPG or an AHD), with an emphasis on people exercising freedom of decision and action wherever possible. This would be inconsistent with a rigid literalist interpretation of s 110E(1)(e) of the GA Act as meaning that a person proposed to be appointed as a substitute guardian could stymie the donor's competent appointment of the enduring guardian by failing to sign to accept his or her own appointment.
In my opinion the preferable construction, which is consistent with its context within, and the overall purpose of the GA Act, as set out above, is that s 110E(1)(e) requires that a person signs acceptance to bring his or her own appointment into force. I do not accept that it requires the signature of the substitute guardian to bring into force any part of the enduring power save his or her own appointment, which only comes into effect on the occurrence of the circumstances specified by the donor of the power (which in this case would be PMT's incapacity). DRT's decision only means that he has not yet accepted appointment as BJT's substitute enduring guardian in relation to the November 2021 EPG, but it does not render it invalid as an expression of BJT's appointment of PMT, and in fact, it would still be open to DRT to sign the document to accept his appointment up until the point that the document is revoked (whether by BJT, if he has capacity at the time of the revocation, or by the Tribunal). I therefore find that the November 2021 EPG is valid.
Consequently, I turn to the issue of whether either the November 2021 EPA/EPG or the January 2022 EPA/EPG can stand as a less restrictive alternative to the appointment of a guardian and administrator for BJT, and I find that they cannot. Although after hearing the evidence of Mr PV, NJW and DRT's closing submissions indicated that they accepted that these documents may have reflected BJT's views at the time, subsequent events have led to BJT expressing a consistent change in his views regarding who he would like to make decisions for him, and he has named NJW and DRT to the OPA investigator and to Dr WB, and at the May hearing he asked me (after looking to NJW for guidance) 'Is it okay for it to be my daughter?' and then said 'That's what I want, [NJW]'. I note that BJT also purportedly revoked the November 2021 EPA/EPG by his letter of 1 February 2022.
Given that BJT is now living in Perth and has had a significant deterioration in his cognitive impairment, such that it may or may not be in his best interests to return to Busselton and he has not been able to see PMT since January 2022 other than at Tribunal hearings, it does not appear that the November 2021 EPA/EPG appointing her can operate as an alternative to the appointment of an administrator and a guardian. This is because BJT's confusion leads to anxiety and his desire for alternative decisionmakers has been expressed consistently (although I note the possibility that this is influenced by the views of DRT, NJW and C who now control the information provided to BJT). Given PMT has been excluded, she is now in a position where she no longer has up to date knowledge of BJT's condition and situation.
Given the November 2021 EPA/EPG cannot serve as a less restrictive alternative for the reasons above, I turn to whether the January 2022 EPA/EPG can.
Mr K gave evidence that a junior lawyer at his practice drafted the documents that were signed on 28 January 2022 appointing NJW with DRT as substitute after an initial meeting on 13 January 2022 (at which DRT was present), and completion online of documents regarding BJT's wishes. Mr K himself witnessed the signing of the documents at 5 pm on 28 January 2022, after BJT had been driven up from Busselton. He gave evidence that he had no concern that BJT lacked capacity to give instructions regarding the enduring powers but noted that as a routine he had advised that getting a specialist opinion that confirmed BJT had capacity to make the appointments was important as there was a likelihood they may be challenged. I note that Dr DC's medical report to the Tribunal on 18 February 2022 indicated she was unsure in all areas including execution of an EPA or EPG, and provided a letter of explanation stating that BJT required reassessment of capacity by a geriatrician because he had borderline capacity in early 2021 with Montreal Cognitive Assessment (MoCA) score of 24/30 and mental state can fluctuate with circumstances (noting BJT had been living in a different house in a different city away from PMT and friends and participating in a diet and lifestyle program not endorsed by his specialist, having been the subject of and witness to several verbal confrontations between his family). She stated, 'dementia patients do not fare well with a change in environment, routine or conflict and this is highly likely to have a negative impact on his capacity to make decisions'. Dr DC goes on to note that mental state testing at her practice on 17 January 2022 showed MoCA 22/30 and MMSE 23/30 which was a decline on previous testing, he did not have a complete competency check with a doctor, was due to return for this on 8 February 2022 and did not attend that appointment. The next assessment was that of Dr WB reported above, where he found BJT did not have capacity to execute an EPA or EPG.
Turning to other material that is relevant to the assessment of whether the January 2022 EPG is valid (in regard to whether BJT had capacity to execute it, and noting I have no power to determine that question in relation to the EPA), I have reviewed the transcript of the FVRO hearing at the Magistrates Court on 4 February 2022, and the application. It is clear from this and confirmed at the August 2022 hearing by NJW, (who was present at the FVRO hearing) that BJT could not remember how long he had been married and he believed PMT had accessed a super account that had $8,000 in it (which is now known to be inaccurate as I am informed by NJW). BJT said 'I haven't been able to get the exact amount' (that is, to ascertain his balance). I note initially NJW made submissions to the Tribunal that BJT was making all the decisions at this point and that 'he was in control'. However, at the FVRO hearing he could not remember when he had left Busselton (saying it was three or four months ago, when in fact it was just a week prior on 28 January 2022). He stated that he had not written the application for the FVRO and did not know if there were any Family Court proceedings on foot 'Not that I'm aware of - certainly not from me' (indicating that he had no intention at this point to pursue legal separation from PMT). BJT described 'wanting to get out of the commitment to the house', and that he packed up and then was forcibly pulled back into the house by three or four people he did not know (possibly relating to the episode at the naturopath's where police were involved). BJT told the magistrate he could not remember the last time he spoke to PMT (and thinks it was several weeks ago). This contrasts with oral evidence given by NJW and DRT who say that constant phone calls from friends and family in Busselton were leading to BJT feeling hounded about the decision to come to Perth, and that this was the reason for seeking the FVRO. BJT did state that he did not want to have contact with PMT to the magistrate. This is in stark contrast to the evidence of BJT's granddaughter B, who visited BJT in Perth on 11 January 2022. She reports that he gave her a big hug and asked if 'Nan' (PMT) was with her, in a tone that indicated he hoped and expected that she might be. NJW indicated that BJT had waited five hours before his FVRO hearing. She acknowledged that he was confused, and that she had completed the FVRO application paperwork for him. This transcript demonstrates that BJT had a completely inaccurate and confused recollection of the sequence of events, and no understanding of the purpose of seeking the FVRO. It raises very serious concerns for me regarding whether he had legal capacity to understand execution of an EPG a week earlier.
That concern is heightened by DRT's oral evidence that on 28 January, when driving up from Busselton, BJT said 'I don't always know where I am, but I know when I'm here I'm among friends'. DRT indicated that he had been checking in with BJT as he was concerned that he and NJW might be influencing BJT with their views. NJW and DRT explained that the financial changes which had so concerned and surprised PMT between Christmas and New Year had required them to dial numbers on the phone for BJT to make the changes to health insurance and bill paying for utilities. This was said to be because he was too agitated and upset to make those calls unaided. Given that very high levels of agitation, confusion about the timing and sequence of events and uncertainty about the reason for which he sought the FVRO stretch from a month prior to the January 2022 EPA/EPG and extended to the week afterwards (the FVRO hearing) (and then a month later Dr WB finds BJT lacks capacity), I think it is extremely doubtful that BJT had capacity to execute the EPG in January 2022. I therefore find that it is not valid.
Even if it were the case that BJT had capacity at that time, I would not be satisfied that the January 2022 EPA/EPG stand as a less restrictive alternative to the making of administration and guardianship orders, as I am not satisfied that the decisions made by the appointees under those powers are in the best interests of BJT.
The decision to initiate the FVRO application and initiate a civil proceeding (which was withdrawn once the FVRO was granted); the decision to take BJT from Busselton and intensively participate in the 'Recode' regime, including providing him with visual triggers including a 'Family Tree' where his wife and step-children are omitted; assisting him to make impulsive, emotional financial decisions inconsistent with the stated and agreed plan (that he would come to Perth for three months to try the regime intensely and then return to Busselton depending on progress); and the failure to seek any independent medical guidance regarding the merit of the regime from either BJT's long-term General Practitioner, Dr DC (whose concerns are clear from her letter of 18 February) or his treating geriatrician, Dr WB (who remarked in his letter of 4 March 2022 on the detrimental effect of the stress of taking BJT from his settled home environment) before deciding to proceed, are not consistent with decision-making in BJT's best interests.
It is clear from their evidence that NJW and DRT love their father very much and believed that they were assisting him to do what he wanted and what they thought was in his best interests. However, the actions from 26 December 2021 onwards in relation to the financial and legal decisions appear to lack the quality required of a substitute decisionmaker - to step back and assess whether the person with the cognitive impairment is making considered and reasonable decisions in his or her own best interests or is affected by his or her cognitive impairment and making detrimental decisions. Where BJT made decisions they supported, they facilitated them (the move to Perth, changing the financial arrangements and the January 2022 EPA/EPG) and where he made decisions they disagreed with, they thwarted them (November 2021 EPA/EPG).
I am not satisfied that NJW and DRT are able to separate their own wishes from BJT's wishes, and particularly what is in his best interests (and this extends to the issues of his medical treatment, where he lives, with whom he has contact, and how his financial arrangements are structured).
As a result, I am not satisfied that the January 2022 EPA/EPG are satisfactory less restrictive alternatives to the making of an administration and guardianship order.

What are BJT's views and wishes?

I have been unable to give credence to family members' evidence regarding BJT's wishes other than where he has reported those wishes to independent parties or where both sides of the family agree, due to the conflicting reports and the real risk of influence by those present at the time. All seem to agree that BJT dislikes conflict.
It appears on the totality of the evidence that BJT expressed a wish to participate in the Recode regime, both when in Busselton, and in Perth. This desire appears heavily influenced by NJW and DRT but persisted despite the advice of his geriatrician while BJT was still living in Busselton and being supported by PMT and her side of the family.
It appears that he expressed the desire to go to Perth for three months in December 2021 to give the regime the best chance of success (this was confirmed by B, his step-granddaughter). The OPA investigator report indicates BJT said it was not his idea, but when DRT and NJW suggested it, he decided it was his best shot.
It is not clear on the evidence that BJT expressed a desire to permanently separate from PMT, although in the aftermath of the confrontations on 9 January 2022, DRT reports BJT saying 'I am never going back there again' out of distress, and after quietening 'I don't know where that came from, I can't understand it'. To me this suggests that BJT may not have recollected or understood the likely impact of the earlier decisions to change the insurance and utility arrangements. I note that the OPA investigator found in May 2022 that BJT was expressing that he now considered himself separated from PMT, while also stating they had had a happy marriage, but the way things have ended up he cannot imagine going back. This was after being in Perth for over three months, with C in the room for the conversation (at BJT's request). I note my previous observations regarding the family tree with the excision of the Busselton side of the family and the inaccurate information provided to Dr RC. There is a significant chance that BJT's views are subject to influence. His diary entries had ceased some weeks earlier prior to the confusion, but the OPA investigator reports they indicated BJT had voiced ongoing distress and grief regarding the altercations which had occurred. I note that BJT has no independent recollection of the events now, and DRT, NJW and C control the information which is reinforced with BJT through visual cues and conversation.

Regarding who BJT would like appointed, his wishes have changed over time as documented in the November 2021 EPA/EPG and January 2022 EPA/EPG. This year, in those documents and in discussion with Mr H and Dr WB, he expressed the wish that his children make the decisions for him, although I note that by May 2022, BJT is telling Dr RC that he was equally happy with PMT and with the current living arrangements. I also note that in Dr RC's letter it is clear that inaccurate information regarding PMT's mental health, and allegations of neglect and abuse are being made (but not by BJT). I note that the medical records from clinic visits made by BJT and PMT to general practitioners and specialists, and the evidence of Mr PV, and written and oral submissions from family and friends in Busselton satisfy me that such allegations are baseless.
As a result, I am not satisfied that BJT's preference regarding who should be making decisions for him is based on any understanding of the sequence of events, or the impact of the decisions that have been being made for him. I find that he is highly vulnerable to influence and a desire to avoid conflict.

Does BJT need a guardian and administrator?

I am satisfied that BJT requires both a guardian and an administrator as he lacks capacity to make personal, legal or financial decisions in his own best interests and there is no less restrictive alternative.
Consistent with s 43 (1) of the GA Act I am satisfied that BJT:
…
(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[.]
because he is unable to recall information independently regarding his health, living circumstances and relationships, and recent decisions have led to him being needlessly estranged from a large number of people who care for him. He is being influenced by those currently around him in ways that are detrimental to his ongoing supportive relationships outside that group. Inaccurate information is being provided by those around him to medical specialists regarding the events described above.
Consistent with s 64 of the GA Act I am satisfied that BJT:
a)is unable, by reason of a mental disability (in this case Alzheimer's dementia), 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, because he was unable to recall financial details at the FVRO hearing, or for Dr WB or Dr RC.
I note that pursuant to s 108(1) of the GA Act, when the Tribunal makes an administration order under s 64 in respect of the estate of the donor of an EPA it may revoke the power, and shall do so to remove the inconsistency. I will therefore revoke both the November 2021 and January 2022 EPAs.

Who should be appointed?

For the reasons above, no family member is suitable for appointment. BJT currently does not wish to have contact with PMT or the family in Busselton, and I am not satisfied that DRT and NJW have acted in his best interests. The only option is therefore to appoint the independent guardian and administrator.

What should the scope of the orders be?

BJT has ongoing health issues to be dealt with, and live issues around his accommodation and care needs. Contact decisions also require a guardian's authority, given there are family and friends who would like to be in contact with BJT, and currently have not been able to see or speak to BJT. The current OPA guardian notes that BJT has declined offers to speak to them currently, and that an independent guardian will seek to provide opportunities to BJT to reconnect with those from whom he is estranged, but it will be up to BJT whether or not he wishes to do so.
BJT's level of confusion regarding his financial situation makes it clear he requires a plenary administrator. I will include a modest gifting authority given BJT's extensive network of family and friends, should he express a wish to give presents to anyone on special occasions.

What should the term of the orders be?

Given BJT has a progressive condition, and will not regain capacity, he will need a guardian and an administrator for the foreseeable future. I will therefore make these orders reviewable within five years. However, BJT has multiple family members who care about him and wish to be appointed. Were it the case that the current concerns which prevent me appointing any family member as administrator or guardian were resolved, an earlier review of the orders can be sought by any party.

The orders of the Tribunal

For the reasons outlined above, I make the following declarations and orders:
GAA 604/2022
The Tribunal declares that the represented person, BJT is:
(a)unable, by reasons of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.

The Tribunal orders:
Administration
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $1,000.00 per annum on gifts on behalf of the represented person.
3.The enduring power of attorney dated 15 November 2021 by which the represented person appointed PMT to be their attorney, and the enduring power of attorney dated 28 January 2022 by which the represented person appointed NJW and DRT to be their attorney, are revoked.
4.The administration order is to be reviewed by 19 August 2027.
GAA 605/2022

The Tribunal notes:
BJT made an enduring power of guardianship on 28 January 2022 appointing NJW and DRT.
The Tribunal orders:
1.The enduring power of guardianship is revoked.
GAA 460/2022

The Tribunal notes:
BJT is unable to make reasonable judgments in respect of matters relating to his person.
The Tribunal orders:
1.BJT is unable to make reasonable judgments in respect of matters relating to his person.
2.The Tribunal notes however, that the enduring power of guardianship has been found not to be a less restrictive alternative to the making of a guardianship order for BJT.
GAA 475/2022

The Tribunal notes:
BJT made an enduring power of guardianship on 15 November 2021 appointing PMT.
The Tribunal orders:
1.The enduring power of guardianship is valid.

The Tribunal notes however, that the enduring power of guardianship has been found not to be a less restrictive alternative to the making of a guardianship order for BJT.
GAA 2535/2022
The Tribunal declares that the represented person, BJT is:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person;
(c)in need of oversight, care or control in the interests of his own health and safety; and
(d)in need of a guardian.

The Tribunal orders:
Guardianship
The guardianship order dated 3 June 2022 is revoked and substituted with an order in the following terms:
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)to determine the services to which the represented person should have access.

2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.The guardianship order is to be reviewed by 19 August 2027.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
24 AUGUST 2022