BM
[2016] WASAT 79
•4 JULY 2016
BM [2016] WASAT 79
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 79 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:92/2016 | 8 MARCH 2016 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 4/07/16 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate appointed guardian and Public Trustee appointed administrator. Enduring power of attorney revoked. | ||
| B | |||
| PDF Version |
| Parties: | BM |
Catchwords: | Guardianship and administration Enduring power of attorney Need for guardian Need for administrator Allegation of illegal property transaction entered into by represented person's son Allegation that represented person's son considered funding an action against one of the represented person's daughters Tribunal satisfied that there was a deep and longstanding mistrust between the represented person's son and one of her daughters and that their antagonism towards each other created an unacceptable risk that their views and actions were filtered through that antagonism and in the advancement of their own interests Suitability to be appointed guardian Suitability to be appointed administrator Public Advocate appointed as guardian Public Trustee appointed as administrator Enduring power of attorney revoked |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 44(5), s 44(1)(b), s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii), s 108(1a)(a), s 110ZD, Div 3, Pt 5 |
Case References: | Nil |
Summary | BM was a 94yearold woman who had been diagnosed with dementia. She lived in a nursing home and had done so since February 2016.,BM had three children, MC and BS, her daughters and WM, her son.,On 11 September 2014, BM made an enduring power of attorney appointing WM as her sole attorney.,MC had lived in Western Australia for many years and returned to the United Kingdom in August 2014 after the death of her husband. For the previous ten years she had lived next door to BM and had provided assistance to her.,In January 2016, MC made applications for the appointment of a guardian and administrator for BM pursuant to the Guardianship and Administration Act 1990 (WA).,The concern of MC was that WM was making decisions for BM without consulting her and BS and was not providing them with current information on BM's health and care needs and the management of her estate under the enduring power of attorney.,WM disputed this and said that upon MC's return to the United Kingdom he and his spouse SM had commenced daily contact with BM in her home, when she was admitted to hospital and finally when admitted to the nursing home. WM maintained that he and SM had provided for all of BM's increasing needs and had adequately notified MC and BS about BM's circumstances.,In her submission that WM was not suitable to make decisions for BM, MC referred to a property transaction in 1991 where she alleged WM had illegally obtained a joint share of BM's property, the transaction only being reversed in 1993 after the intervention of her late husband.,The evidence of WM in regard to the property transaction was not consistent, stating in a written submission that it was only ever the intention that he be given half the property, and in his oral evidence that it was always the case the whole of the property would become his.,The Public Advocate, to whom the applications had been referred for an investigation, referred to a recent event where JS, a stepdaughter of MC, had advised the Public Advocate that WM and SM had contacted her with the aim of having JS challenge the entitlement of MC in BM's estate upon BM's death. JS had advised the Public Advocate that SM had said she and WM wanted revenge on MC.,JS's version of the event was disputed by WM who said that it was JS who had contacted SM because she was angry at how MC had disposed of a property she and her late husband had owned and JS was alleged to have said should have gone to MC's children and stepchildren.,Both JS and SM did not attend the hearing so that their interpretation of events concerning the matter could be given and tested under crossexamination. Despite this, the Tribunal accepted the evidence of the Public Advocate regarding her interactions with JS and SM. The Tribunal accepted therefore that JS told the Public Advocate that she was approached by SM and that SM articulated a sense of injustice and ongoing antagonism towards MC.,The Tribunal was satisfied that there was a deep and longstanding mistrust between WM, SM and MC, and that their antagonism towards each other created an unacceptable risk that their views and actions were filtered through that antagonism and in the advancement of their own interests.,The Tribunal found that the only way this could be resolved and in ensuring the overall protection of BM's estate (and to stop ongoing speculation about it) was in the appointment of the Public Trustee as administrator. ,The Tribunal was satisfied that it was in BM's best interests that the Public Trustee be appointed the administrator of BM's estate and that the enduring power of attorney be revoked despite the enduring power of attorney reflecting a wish of BM at the time it was made.,As regards the issue of guardianship, s 44(1)(b) of the Act placed an onus on any prospective guardian that he should not be in a position where his interests conflict or may conflict with the interests of BM.,MC was not proposing herself as guardian for BM; WM submitted that he should be appointed, it appeared, solely or jointly with SM.,At the time of the hearing, WM was making treatment decisions for BM as the person responsible (s 110ZD of the Act).,Allowing for the findings made, the Tribunal was not convinced that WM or SM were free of a potential conflict of interest as demanded by s 44(1)(b) of the Act and were therefore not suitable to be appointed.,Given that there was no other person willing to be appointed as BM's guardian, the Tribunal decided it was in BM's best interests to appoint the Public Advocate notwithstanding her wish, as expressed through her general practitioner, that WM 'organise everything'.,The Tribunal found that the areas in BM's personal life which required the formal authority were her accommodation and treatment, the former to provide certainty in the decisionmaking, given that until very recently it was still being considered by WM to remove BM from the nursing home, and the latter because the need to give consent to treatment was an ongoing decisionmaking need.,The appointment of the Public Advocate would also ensure decisions were made through a consultative process with all relevant family members and that information would be provided in an open and consistent way contrary to what was currently occurring. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : BM [2016] WASAT 79 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 8 MARCH 2016 DELIVERED : 4 JULY 2016 FILE NO/S : GAA 92 of 2016
- GAA 93 of 2016
- Applicant
Catchwords:
Guardianship and administration Enduring power of attorney Need for guardian Need for administrator Allegation of illegal property transaction entered into by represented person's son Allegation that represented person's son considered funding an action against one of the represented person's daughters Tribunal satisfied that there was a deep and longstanding mistrust between the represented person's son and one of her daughters and that their antagonism towards each other created an unacceptable risk that their views and actions were filtered through that antagonism and in the advancement of their own interests Suitability to be appointed guardian Suitability to be appointed administrator Public Advocate appointed as guardian Public Trustee appointed as administrator Enduring power of attorney revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 44(5), s 44(1)(b), s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii), s 108(1a)(a), s 110ZD, Div 3, Pt 5
Result:
Public Advocate appointed guardian and Public Trustee appointed administrator.
Enduring power of attorney revoked.
Summary of Tribunal's decision:
BM was a 94yearold woman who had been diagnosed with dementia. She lived in a nursing home and had done so since February 2016.
BM had three children, MC and BS, her daughters and WM, her son.
On 11 September 2014, BM made an enduring power of attorney appointing WM as her sole attorney.
MC had lived in Western Australia for many years and returned to the United Kingdom in August 2014 after the death of her husband. For the previous ten years she had lived next door to BM and had provided assistance to her.
In January 2016, MC made applications for the appointment of a guardian and administrator for BM pursuant to the Guardianship and Administration Act 1990 (WA).
The concern of MC was that WM was making decisions for BM without consulting her and BS and was not providing them with current information on BM's health and care needs and the management of her estate under the enduring power of attorney.
WM disputed this and said that upon MC's return to the United Kingdom he and his spouse SM had commenced daily contact with BM in her home, when she was admitted to hospital and finally when admitted to the nursing home. WM maintained that he and SM had provided for all of BM's increasing needs and had adequately notified MC and BS about BM's circumstances.
In her submission that WM was not suitable to make decisions for BM, MC referred to a property transaction in 1991 where she alleged WM had illegally obtained a joint share of BM's property, the transaction only being reversed in 1993 after the intervention of her late husband.
The evidence of WM in regard to the property transaction was not consistent, stating in a written submission that it was only ever the intention that he be given half the property, and in his oral evidence that it was always the case the whole of the property would become his.
The Public Advocate, to whom the applications had been referred for an investigation, referred to a recent event where JS, a stepdaughter of MC, had advised the Public Advocate that WM and SM had contacted her with the aim of having JS challenge the entitlement of MC in BM's estate upon BM's death. JS had advised the Public Advocate that SM had said she and WM wanted revenge on MC.
JS's version of the event was disputed by WM who said that it was JS who had contacted SM because she was angry at how MC had disposed of a property she and her late husband had owned and JS was alleged to have said should have gone to MC's children and stepchildren.
Both JS and SM did not attend the hearing so that their interpretation of events concerning the matter could be given and tested under crossexamination. Despite this, the Tribunal accepted the evidence of the Public Advocate regarding her interactions with JS and SM. The Tribunal accepted therefore that JS told the Public Advocate that she was approached by SM and that SM articulated a sense of injustice and ongoing antagonism towards MC.
The Tribunal was satisfied that there was a deep and longstanding mistrust between WM, SM and MC, and that their antagonism towards each other created an unacceptable risk that their views and actions were filtered through that antagonism and in the advancement of their own interests.
The Tribunal found that the only way this could be resolved and in ensuring the overall protection of BM's estate (and to stop ongoing speculation about it) was in the appointment of the Public Trustee as administrator.
The Tribunal was satisfied that it was in BM's best interests that the Public Trustee be appointed the administrator of BM's estate and that the enduring power of attorney be revoked despite the enduring power of attorney reflecting a wish of BM at the time it was made.
As regards the issue of guardianship, s 44(1)(b) of the Act placed an onus on any prospective guardian that he should not be in a position where his interests conflict or may conflict with the interests of BM.
MC was not proposing herself as guardian for BM; WM submitted that he should be appointed, it appeared, solely or jointly with SM.
At the time of the hearing, WM was making treatment decisions for BM as the person responsible (s 110ZD of the Act).
Allowing for the findings made, the Tribunal was not convinced that WM or SM were free of a potential conflict of interest as demanded by s 44(1)(b) of the Act and were therefore not suitable to be appointed.
Given that there was no other person willing to be appointed as BM's guardian, the Tribunal decided it was in BM's best interests to appoint the Public Advocate notwithstanding her wish, as expressed through her general practitioner, that WM 'organise everything'.
The Tribunal found that the areas in BM's personal life which required the formal authority were her accommodation and treatment, the former to provide certainty in the decisionmaking, given that until very recently it was still being considered by WM to remove BM from the nursing home, and the latter because the need to give consent to treatment was an ongoing decisionmaking need.
The appointment of the Public Advocate would also ensure decisions were made through a consultative process with all relevant family members and that information would be provided in an open and consistent way contrary to what was currently occurring.
Category: B
Representation:
Counsel:
Applicant : Mr Michael Rennie
Solicitors:
Applicant : HFM Legal
Case(s) referred to in decision(s):
Nil
Introduction
1 BM is a 94yearold woman who has been diagnosed with dementia. She lives in a nursing home and has done so since February 2016.
2 BM has three children, MC and BS, her daughters and WM, her son.
3 On 11 September 2014, BM made an enduring power of attorney (EPA) appointing WM as her sole attorney.
4 MC lived in Western Australia for many years and returned to the United Kingdom in August 2014 after the death of her husband.
5 BS also lives in the United Kingdom and did not take part in the proceeding.
6 In January 2016, MC made applications for the appointment of a guardian and administrator for BM pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
7 The applications were referred to the Public Advocate for investigation: s 97(1)(b)(iii) of the GA Act.
8 The applications were heard on 8 March 2016. MC attended and was legally represented. Also in attendance were WM, RC, grandson (son of MC) and an investigator from the Office of the Public Advocate (Public Advocate).
9 The decision was reserved.
Decision
Relevant legislation
10 The primary concern of the Tribunal is the best interests of BM: s 4(2) of the GA Act.
11 BM is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
12 Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for BM unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments about matters relating to her person; or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
13 Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of BM unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
14 Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
15 If a finding of incapacity is made in respect to BM, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of BM can be met in a manner less restrictive of her freedom of her decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
16 If the Tribunal decides that BM is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 of the GA Act.
17 As to the authority given to a guardian, the GA Act states that if a limited order is sufficient to meet the needs of BM then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on BM: s 4(5) and s 4(6) of the GA Act.
18 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of BM as expressed, in whatever manner, at the time, or as gathered from BM's previous actions: s 4(7) of the GA Act.
BM's capacity
19 The Tribunal had before it reports from January and February 2016 from a hospital medical officer, hospital social workers, the Aged Care Assessment Team (ACAT) and BM's current general practitioner.
20 BM has been diagnosed with a dementia, the likely cause of which is Alzheimer's disease. She had been admitted to hospital in December 2015 after a fall in her home, and in light of increasing short term memory problems and confusion.
21 In early 2016 BM was discharged from hospital to the nursing home after she was assessed by the ACAT as requiring more support than could be provided in the community.
22 The Public Advocate met with BM at the nursing home on 16 February 2016 and found her very confused and unable to understand or answer very simple questions. She did not recognise the names of her children and could not say where she was living.
23 It is common ground that BM is a person for whom guardianship and administration orders can be made.
24 I am satisfied that BM meets the requirements of s 43(1)(a), s 43(1)(b) and s 64(1)(a) of the GA Act.
25 In his written report, BM's general practitioner states that she wants WM to 'organise everything'.
The need for guardianship and administration orders
The evidence of MC, daughter and applicant
26 MC states that she migrated to Australia about 30 years ago to look after her father who had a terminal illness and to care for BM after her father's death.
27 MC says that she lived next door to BM for the ten years prior to 2014 and that BM was able to continue to live independently with her support and the support of neighbours and friends. WM would occasionally take BM to lunch and at times SM, his spouse, would come along.
28 MC states that when her husband died in 2014 she decided to return to the United Kingdom which she did in August 2014. She says she was reassured by WM that he would oversee BM's care. BM's neighbours also said that they would keep an eye on her.
29 After her return to the United Kingdom, MC states that BM continued to live independently with support from friends and neighbours. She believes WM provided intermittent support until December 2015 when BM was taken from her home by WM and moved to a unit accommodation upon which her physical and mental health began to deteriorate quickly because of her being removed from familiar surroundings.
30 MC states that once in the United Kingdom she had weekly telephone contact with BM but found it difficult to contact WM and SM. She says her son, RC, was able to have some contact with WM through 'Facebook'.
31 MC states that she lost contact with BM in December 2015 and later found out from a neighbour of BM that she had been admitted to hospital. Through their 'Facebook' account WM and SM advised that a decision needed to be made as to whether BM required fulltime care in a nursing home. MC says that BM's possessions were 'cleared out' of her home and sold.
32 MC states that SM was the nominated 'next of 'kin' for BM in hospital and this was preventing her from obtaining information about the state of BM's health.
33 MC says that she was able to organise some telephone contact with BM through the hospital social worker. BM was said by MC to be unaware of decisions being made for her.
34 MC states that at the time she made the applications she believed BM's property was being listed for sale. She believes that all that was happening to BM, in particular being displaced from her home, caused a rapid decline in her mental state.
35 MC states that 'some years ago' BM's property was illegally transferred to WM and SM and it was only by her and her late husband's advocacy that the transaction was eventually reversed (property transaction, see below).
36 MC questions the bona fides of SM stating her belief that SM was in the past 'found guilty of other crimes including fraud' whilst working at a bank in Perth.
37 In response to the evidence of WM (see below) of the alleged excessive volume of spending that took place for a period from 13 April 2013 to 28 August 2014, MC says that she never had access to BM's bank accounts. She states that she is aware that during the nominated period her son S and his daughter received gifts of $2,500 and $500 respectively. MC believes WM also received a gift of 'a few thousand dollars'. MC says that BM would also keep cash in her home estimated to be some thousands of dollars.
38 In response to the evidence of WM (see below) that he met with her and SM on or around 11 September 2014, MC states that she was already in the United Kingdom by that time.
The evidence of WM, son and attorney
39 WM says that as a child he migrated to Australia with his parents in 1960. His sisters, including MC, remained in the United Kingdom. He says that he was effectively raised as an only child and did not meet his sisters until he was in his early 20s.
40 WM states that in October 2014 he gave up his employment to look after BM 's welfare. BM did not need a carer but WM says that he wanted to be close to her and this sentiment was reciprocated by BM.
41 From October 2014 WM states that he commenced daily contact with BM and visited her with SM at least four times each week. They would bring prepared meals and fresh fruit and at times take BM out for a meal. WM says that he undertook small repairs on BM's home and SM helped with cleaning and did all of BM's laundry.
42 WM states he would do a weekly grocery shopping for BM and attend all her medical appointments with her.
43 WM says that he assisted BM with her banking and bill paying. BM withdrew cash from the bank which she held herself. WM says that BM kept cash under the pedals of an electric organ and that the most cash he ever observed was about $2,000 which was ultimately spent by, or used for, BM when she left her property.
44 WM states he kept family in the United Kingdom informed of BM's activities, including outings via video and photo posts on 'Facebook'.
45 WM says that BM would often mention her money and he decided to undertake an exercise comparing spending during the time MC was the primary carer and when he took over. WM says that he compared two 18 month periods and calculated that $46,500 had been expended when MC was primarily involved, as against $19,465 during his period, although he accepts that a $2,000 withdrawal made on 14 August 2014 and included in the figure for MC, was a withdrawal that occurred when MC had already returned to the United Kingdom and, further, some of the withdrawals during the period were when he took BM to the bank.
46 In April 2015 WM states that BM expressed a wish to live with him and SM in a granny flat, an offer he says he made about a year earlier and about which MC had expressed approval in 2014. BM wanted to contribute $10,000 to the $99,000 cost of the granny flat and this transaction was made.
47 For various reasons WM says the progress of the building of the granny flat was slow. BM was frightened of living on her own, so he says he decided to offer her to live in his investment property which was a unit in an over 55 complex. WM states that BM was eager to do this whilst the granny flat was being built. WM says that he notified family in the United Kingdom of the move with BM's new telephone number being given to RC. BM had some unneeded furniture and small items that were sold but other items were kept.
48 In crossexamination WM said he started to build the granny flat in September 2015. It is partially complete. The cost will now be in excess of $100,000 and he and SM will meet that cost. WM said he accepted that BM would not now be able to live in the granny flat.
49 WM states that on Christmas day in 2015 BM needed to be taken to hospital after a fall. Because of her progressing dementia, BM was assessed as requiring high level care either in her home or in a nursing home. WM says that after discussions with the hospital geriatrician he and SM were advised that BM was not capable of making an enduring power of guardianship.
50 The decision was ultimately made to have BM move to a nursing home for her safety given that she was a falls risk.
51 WM says that on 26 January 2016 BM was discharged from hospital to an aged care placement. He and SM have visited the facility on a daily basis.
52 WM says that family in the United Kingdom are all 'Facebook friends' and he and SM have, over time, posted messages, videos and photos concerning BM. These have included information about BM's fall on Christmas day, her admission to hospital and her accommodation moves. WM says that his and SM's contact details have not changed in 15 years which has provided a consistent means for family to contact him. He says he was therefore surprised when at the end of October 2015, RC asked via 'Facebook' for contact details because MC was trying to get hold of him. This, WM says, led over a period of time to an acrimonious exchange with RC and accusations concerning how he was managing BM's estate.
53 In crossexamination WM admitted that he did not contact MC or BS when BM was admitted to hospital on Christmas day 2015 because there was no need to do so as she was receiving good care. He also admitted that he did not advise MC and BS of BM's transfer to another hospital and her admission to the nursing home. WM says that by that time RC had told him not to contact MC or BS and, in addition, when BM first went to the nursing home he was advised by staff not to visit so as to give BM time to settle.
54 WM states that as BM's attorney he is dealing with her financial needs. He says he is the only person with access to BM's bank account. WM says that he is also effectively acting as BM's guardian and that role has increased dramatically since BM's hospitalisation in December 2015. WM says that BM used to be very independent when living in her home and he assisted when asked. He says he is grateful to MC for her assistance and companionship of BM over many years.
55 WM states that BM's estate currently comprises her property, bank funds of $36,000 and a small petty cash fund. BM has an entitlement to pension income. WM states that the nursing home initially charged $308,000 for a 'Refundable Accommodation Deposit' (RAD) but it has been determined that the maximum that can be sought is $238,000. Until the RAD is paid a daily fee of $52 is payable. WM states that BM's property will need to be sold to pay for the RAD, but it is fully refundable on the death of BM. BM's property has been placed on the market for $329,000 but, so far, interest has only been shown at about $280,000.
56 WM states that in addition to acting as BM's attorney, he is the executor of her will and nominee for Centrelink purposes. He says that he wants to continue to act in these roles and also proposes that he and SM be appointed guardian for BM because they are in the best position to undertake the relevant tasks.
The evidence of SM, daughterinlaw
57 In a written statement filed with the Tribunal, SM states that she plays no part in the management of BM's estate.
58 In response to the allegations made by MC (see above), SM states that she has never been charged with fraud. She admits (which she says is public knowledge) that about 17 years ago she was held to have harassed debtors when working for a debt collection agency, however, since then she says she has established herself as a successful business woman having won business awards and being a member of respected business and charitable organisations.
59 SM states that over the years she has assisted BM in many ways including cooking, cleaning, laundry and outings and as a confidant. SM says that BM expressed to her a disappointment in MC and her son S, alleging that they regularly asked her for money and that she felt compelled to give it to them.
60 SM states that WM is a good and worthy person and is only concerned with BM's best interests. She says that she was 'gutted' when MC made the applications for guardianship and administration orders and submits MC is more focused on her inheritance.
61 Despite this, SM says that she is happy to maintain contact with family in the United Kingdom and remains 'Facebook friends' with them.
The Public Advocate
62 The Public Advocate states that up until very recently WM was planning to remove BM from the nursing home and, she says, that in a conversation with him she advised this might not be in BM's best interests because previous moves had led to deterioration in BM's wellbeing. The Public Advocate accepts WM's evidence that BM will now stay in the nursing home.
63 The Public Advocate states that it was reported to her by hospital staff (in the hospital admission prior to the move to the nursing home), that family in the United Kingdom did telephone BM every day and speak to her. The Public Advocate notes that BM is now very confused but would have benefited from contact at that time.
64 The Public Advocate states that her investigation has revealed:
… a long-standing animosity [between WM and MC] that has been going back a very, very long time and it's very deep seated. (T:51; 08.03.16)
65 The investigation by the Public Advocate also revealed that BM and WM:
… have a very close and personal relationship … she [BM] adores her younger son [WM]. (T:52; 08.03.16)
The property transaction
66 In her submission as to the suitability of WM to continue in the role as BM's attorney, MC alleges that WM initially benefited from a property transaction with BM to her detriment but which was subsequently reversed.
67 Documents submitted by MC show that on 29 August 1991 BM signed a transfer of land transferring the sole ownership of her property to herself and WM as joint tenants by way of a gift. On 24 November 1993 the transaction was reversed such that BM again became the sole owner of her property. The consideration was described on that transfer of land form as 'natural love and affection'.
68 In her written report the Public Advocate states that she spoke with another relative of BM who said he had been contacted by MC's late husband after the property transaction had been made. The advice given by the relative was that the property transaction should be referred to the Police, however he was later told that BM did not want to pursue the matter any further.
69 The Public Advocate submits that WM has given contradictory explanations about the property transaction to her and in a written submission to the Tribunal. In her discussions with WM he is reported to have said that:
… the transaction occurred as [BM] wanted to move to the coast and he assisted her by placing his name on the title deed and using her property as collateral for a flat purchased on her behalf. He advised that [BM] changed her mind and did not move into the flat.
(Page 9 of the report dated 1 March 2016)
70 The submission to which the Public Advocate refers is the one made by WM and filed with the Tribunal on 23 February 2016.
71 In that submission WM states that around 1987 BM discussed making a will and that she and her late (first) husband had always agreed that the husband's share of the property should be given to WM because of the contributions he had made over the years to the property mortgage and because it was his family home.
72 WM states that in mid1991 he and SM wanted to purchase a unit for investment purposes near to a block of land they already owned. WM says he discussed with BM the possibility of her assisting him with 'security' for the purchase of the unit. It was proposed that WM and SM build on the block of land and that BM would move into the investment unit when she felt she could no longer live in her property.
73 WM states that BM's property was subsequently transferred to her and him as tenants in common. WM says that he never wanted to be given BM's property wholly, only the halfshare that had been offered by BM. He says that he advised BM to ensure that his sisters received their share of the property upon her death.
74 WM states that in mid1993 MC found out about the property transaction but that it was never a secret. WM says that MC contacted SM (at the time he was away in the Navy) and was abusive and threatening. BM expressed to WM her concerns about the property should he and SM ever divorce. BM had also reported that she was under pressure from MC and asked that the property transaction be reversed which was done.
75 In crossexamination, WM at first said that he was not aware of the difference between ownership of property as tenants in common and joint tenancy, despite the fact he had completed the transfer of land form in 1991 in which 'joint tenants' was stated.
76 WM said later in crossexamination that he had 'misconstrued' what he had written in the transfer of land form and that it was a mistake on his part (T:39; 08.03.16).
77 When the effect of the joint tenancy was explained to WM by counsel for MC (that if BM had died he would have become the sole owner of the property by virtue of survivorship), WM agreed that is what would happen and said:
And that was one of mum's intentions earlier in the piece. (T:23; 08.03.16)
78 And further:
… I think I've mentioned the fact that they actually wanted me to have all of the house due to the fact that I had lived in it all my life … so I contributed and assisted. I had actually suggested to mum that that would cause issues further down the track and that it should be going to three parties. (T:24; 08.03.16)
The Will matter
79 In his written submission of 23 February 2016 WM states that when MC returned to the United Kingdom in August 2014 he came across an unsigned document which BM said was her Will. The Will appointed MC as executrix and the Public Trustee as substitute executor. The document, which is before the Tribunal, gives MC all of BM's bank funds, furniture and other personal possessions with the balance of the estate to be distributed in equal shares to BM's three children.
80 WM states that BM was insistent the Will did not reflect her wishes and that she wanted all of her estate distributed equally between her three children. WM says that BM made a new Will on 11 September 2014, which is also before the Tribunal, setting out the equal distribution.
81 WM states in his written submission that 'a few weeks ago' MC's stepdaughter, JC (now JS), contacted him and alleged that MC had returned to the United Kingdom 'owing the family a lot of money' and that she was intending to make a claim against MC's share of BM's estate upon BM's death.
82 In his written submission WM refers to a 'Facebook' message purportedly sent by JS to him on 4 February 2016, which is before the Tribunal, that when MC's husband (JS's birth father) died in November 2013, MC disposed of his possessions and a personal computer which JS says was promised to her. The message further states that it was agreed with her father before he died that MC would remain in Australia for two years to look after BM and not sell the family home (the property in which MC still lived). The message states that within six months MC had sold the family home. The message states that the proceeds from the sale of the family home were supposed to be distributed equally between MC's three birth sons and the four birth daughters of MC's late husband. MC is reported to have said that the birth daughters of her late husband would not be included as beneficiaries in her Will. The message states the intention to make a claim against MC's eventual share of BM's estate.
83 In her investigation the Public Advocate spoke with JS and a summary of that conversation is in the report of the Public Advocate dated 1 March 2016. At page 7 of the report, the Public Advocate states:
[JS] is [BM]'s stepgranddaughter. [JS] advised that she had recently been approached by [WM] and[SM] out of the blue, after having no contact for 20 years. [SM] advised that [JS] and her younger sister should be contesting any claim that [MC] may have to [BM]'s estate. According to [JS] she was to meet with [WM and SM] to discuss this proposal further on 25 February 2016. She advised that [WM] and [SM] had proposed that they will fund the legal action against [BM]'s estate as neither sister has the funds and she believes [BM] and [SM] are financially well off.
[JS] asked [SM] why they would propose to pay for the legal action and the lawyer, especially as the claim may be a 'long stretch' and may not recover much money. [JS] advised that [SM] told her it was to obtain 'revenge' on [MC]. She advised they were seeking information about [MC] and were also prepared to fund the legal action and requested that [JS] put her name to the action. [JS] has agreed to this proposal.
84 In her oral evidence the Public Advocate states that JS was very clear that she had been approached by SM because SM and WM wanted to find a way for JS to recover any inheritance that MC might receive from BM's estate. The Public Advocate states that in her subsequent conversations with SM there was a perception of injustice as against MC and a 'strength and conviction of the animosity' (T:51; 08.03.16).
85 In crossexamination, WM said that he believes JS contacted SM through 'Facebook' who then referred JS to him. He said that it is not true that he offered to fund a legal action concerning BM's estate. He said that he explained to JS that if she intended to make such a claim he would need to see what the claim involved. WM said that he obtained legal advice as BM's attorney and then advised JS that if she intended to take legal action against MC she would need to do so 'independent of this' (T:32; 08.03.16).
86 When asked whether in his view what JS apparently told the Public Advocate was 'just a pack of lies', WM stated … 'it would appear so because I actually gave [the Public Advocate] [JS]'s details' (T:32; 08.03.16).
87 Neither JS nor SM attended the hearing to give evidence or to be crossexamined.
Submissions
MC, daughter and applicant
88 Counsel for MC submits that the evidence before the Tribunal including in respect to the property transaction and the Will matter clearly demonstrates deep seated animosity between WM and his sisters, MC and BS.
89 If BM's financial affairs are not put in the hands of an independent administrator then the finances will be a constant source of speculation in the family.
90 It is submitted that the Public Trustee should be appointed BM's administrator and the EPA revoked.
91 MC agrees with the submission of the Public Advocate (see below) that WM's interests are in conflict with BM and therefore the Public Advocate should be appointed BM's guardian.
WM, son and attorney
92 WM submits that he has worked tirelessly to ensure BM has the best care and quality of life. He says that he would not now remove BM from the nursing home because she receives specialist care and she now refers to the facility as her 'forever home' (T:48; 08.03.16).
93 WM says that he has communicated with family on the health and welfare needs of BM and this did not stop until he was told to do so by RC. WM says he considered 'Facebook' to be the best medium for the provision of information.
94 WM says that he would never prevent family having contact with BM and would be happy to provide a telephone in her room at the nursing home. He says that he would also be happy to contact MC and BS by telephone when serious medical issues for BM need to be discussed.
95 As regards BM's financial affairs, WM says that he has kept relevant records.
96 WM submits that he should be allowed to continue as attorney under the EPA and be formally appointed guardian in recognition of what he is already doing for BM.
The Public Advocate
97 The Public Advocate submits that it is open for the Tribunal to find that it was JS who was first approached by SM in respect of the Will matter. In her discussions with SM, the Public Advocate formed a belief that [WM and SM]:
… will pay or have been tentatively exploring paying for an action against their mother's estate already. (T:51; 08.03.16)
98 The Public Advocate submits that both MC and WM place an overemphasis on BM's estate and in the protection of their individual future interest in that estate. She submits there are 'grave concerns' regarding a potential conflict of interest, 'financial and emotional', in the possibility of WM funding an action by JS in respect to BM's Will (page 10 of report dated 1 March 2016).
99 The Public Advocate submits that she would be very concerned that if BM was seriously ill whether that information would be given by WM to family in the United Kingdom.
100 The Public Advocate proposes the appointment of the Public Advocate as BM's guardian and the Public Trustee as her administrator.
Discussion
101 In the determination of whether BM is in need of a guardian and in need of an administrator (s 43(1)(c) and s 64(1)(b) of the GA Act) I must direct my attention to those areas of BM's life that are held to require decisions to be made and which decisions can only be made under a formal authority.
102 It is clear that because of BM's incapacity she is in need of someone with the relevant authority to manage, protect and make decisions regarding her estate.
103 BM's estate is relatively simple and straightforward. At the time of the hearing she owned her property free of encumbrances, she had some bank funds, a small amount of cash held by WM as 'petty cash' and the remainder of her personal possessions. She has an ongoing entitlement to pension income.
104 I accept that BM's property needs to be sold to fund the RAD due to the nursing home. This means on the evidence of WM that most of BM's funds will be secured in the RAD which only becomes refundable (assuming BM remains in the nursing home) upon BM's death. Once the RAD is settled BM's remaining estate will consist of an amount of bank funds and her income out of which her nursing home fees and other needs must be paid.
105 The issue before the Tribunal is whether the authority to manage BM's estate should remain with WM under the EPA or should be removed from him by appointing the Public Trustee as administrator. That goes to the question as to whether WM is suitable to continue in his role as attorney.
106 I am troubled by WM's evidence concerning the property transaction. I do not accept that he was unware at the time BM's property was transferred into joint ownership in 1991 that if BM died, then the whole of the property would be become his by way of survivorship. His explanation of the transaction in his written submission stands in stark contrast to his oral evidence which was that he believed he was entitled to all of the property.
107 I am also troubled by the Will matter.
108 It was unfortunate that both JS and SM did not attend the hearing so that their interpretation of events concerning the Will matter could be given and tested under crossexamination. Despite this, I accept the evidence of the Public Advocate regarding her interactions with JS and SM. I accept therefore that JS told the Public Advocate that she was approached by SM and that SM articulated a sense of injustice and ongoing antagonism towards MC.
109 I am satisfied on the evidence that however the Will matter originated, the prospect that MC could potentially be financially disadvantaged in some way was at the very least open to consideration by WM and SM.
110 It might be said that all of this is not material to the ongoing management of BM's estate because there will not be a great deal to manage once the property is sold and the RAD paid. In addition, the 2014 Will distributes BM's estate equally amongst her three children, and if there is a contest upon BM's death, that is a matter for the executor and beneficiaries at that time.
111 I am not persuaded to this view. I am satisfied that there is a deep and longstanding mistrust between WM, SM and MC and that their antagonism towards each other creates an unacceptable risk that their views and actions are filtered through that antagonism and in the advancement of their own interests.
112 The only way, in my view, this can be resolved and in ensuring the overall protection of BM's estate (and to stop ongoing speculation about it) is in the appointment of the Public Trustee as administrator.
113 I am satisfied that it is in BM's best interests that the Public Trustee be appointed administrator of BM's estate and that the EPA be revoked despite the EPA reflecting a wish of BM at the time it was made: s 108(1a)(a) of the GA Act.
114 As regards the issue of guardianship, s 44(1)(b) of the GA Act places an onus on any prospective guardian that he should not be in a position where his interests conflict or may conflict with the interests of BM.
115 MC is not proposing herself as guardian for BM; WM submits that he should be appointed, it appears, solely or jointly with SM.
116 Currently, WM is making treatment decisions for BM as the person responsible (s 110ZD of the GA Act).
117 Allowing for the findings I have made, I am not convinced that WM or SM are free of a potential conflict of interest as demanded by s 44(1)(b) of the GA Act and are therefore not suitable to be appointed.
118 Given that there is no other person willing to be appointed as BM's guardian, I must appoint the Public Advocate (s 44(5) of the GA Act) and I am satisfied that it is in BM's best interests notwithstanding her wish, as expressed through her general practitioner, that WM 'organise everything'.
119 I find that the areas in BM's personal life which require the formal authority are her accommodation and treatment, the former to provide certainty in the decisionmaking given that until very recently it was still being considered by WM to remove BM from the nursing home, and the latter because the need to give consent to treatment is an ongoing decisionmaking need.
120 The appointment of the Public Advocate will also ensure decisions are made through a consultative process with all relevant family members and that information will be provided in an open and consistent way contrary to what is currently occurring.
121 I will set the review date for the orders at five years: s 84 of the GA Act.
Orders
Administration
The Tribunal declares that [BM]:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b) is in need of an administrator of her estate,
and the Tribunal orders that:
1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. The enduring power of attorney dated 11 September 2014 by which [BM] appointed [WM] to be her attorney, is revoked.
3. The administration order is to be reviewed by 27 June 2021.
Guardianship
The Tribunal declares that the represented person, [BM]:
(a) is incapable of looking after her own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to her person;
(c) is in need of oversight, care or control in the interests of her own health and safety; and
(d) is in need of a guardian,
1. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be 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; and
(c) subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.
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 order is to be reviewed by 27 June 2021.
I certify that this and the preceding [121] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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