C - [2024] WASAT 13 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   C [2024] WASAT 13
MEMBER:   DR E MARILLIER, SENIOR MEMBER
HEARD:   14 DECEMBER 2023 AND 13 FEBRUARY 2024
DELIVERED          :   29 FEBRUARY 2024
PUBLISHED           :   29 FEBRUARY 2024
FILE NO/S:   GAA 5158 of 2023

C
Represented Person

Catchwords:

Review of administration - Functions of an administrator - Functions of a guardian - Suitability for appointment as administrator - Ability to make decisions in best interests of represented person - Power to bind the estate does not rest with the guardian - Payment of debt contemplated where represented person not obliged by law to pay

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(7), s 40, s 49, s 65, s 68, s 68(1)(c), s 68(3)(b), s 68(3)(c), s 71(5), s 72(3)(b), s 80(4), s 85, s 86, s 87, s 106

Result:

Existing order confirmed
Public Trustee appointed plenary administrator

Category: B

Representation:

Counsel:

Represented Person

In Person

Solicitors:

Represented Person

N/A

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

Re Beddoe [1893] 1 Ch 557
RK [2022] WASAT 112

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally on 29 February 2024 and have been edited for anonymisation purposes and to correct any grammatical errors or infelicitous phrasing. All references to sections of legislation in these reasons refer to the Guardianship and Administration Act 1990 (WA).)

Background

C is now 81 years old. Before her diagnosis with dementia, she had been a successful businesswoman working as director of a quantity surveying firm, only retiring at the age of 72.
This is the ninth matter relating to C being determined by the Tribunal since 2021. It is an application pursuant to s 87 of the Guardianship and Administration Act 1990 (WA) (GA Act) by her brother J and his friend M seeking leave for review under s 86 of the order by which I appointed the Public Trustee (PT) as C's plenary administrator on 19 August 2021.
M's residence in C's home and purported carer relationship for C since February 2022 is the key element in their dissatisfaction with the appointment of PT. J and M propose J be appointed as limited administrator to manage all aspects of C's estate other than the legal action currently being undertaken by PT in relation to loans purportedly made by C to her financial advisor KH (which they wish PT to continue). They seek J's appointment specifically with the aim of having M 'remain' (given their view that there is an existing employment arrangement) or be employed as carer, and for her to be paid for services they say she has provided and reimbursed for expenses incurred. At hearing, they proposed J's friend T either jointly with J or solely as an alternative appointment as administrator. T proposed he assist J informally or be appointed jointly with him.
Given the long and complex history of this matter, which I will set out below for the benefit of the parties, I determined the question of whether or not leave should be granted pursuant to s 87 as a preliminary issue at a Directions Hearing on 14 December 2023. Although C's circumstances and the grievance of J and M had not changed, I was persuaded by the submissions of both the Delegated Guardian from the Office of the Public Advocate (OPA) and the Trust Manager from PT that it was in the best interests of C to grant leave for the review. This is because the (new) delegated guardian was proposing that M be employed to care for C, and after high level review at PT, this recommendation was refused. I was satisfied that this constituted an 'other reason' that was sufficiently compelling that the order should be reviewed.[1]
[1] RK [2022] WASAT 112, [42] – [44].
For the reasons which follow, I find that C is still a person who, by reason of a mental disability, is unable to make reasonable judgments in respect of matters relating to all of her estate and is in need of an administrator. I also find that the only suitable candidate for appointment remains PT with plenary authority, and I therefore confirm the existing order, which is for review by 18 August 2026.

Chronology

From approximately 2018 J, and C's friend A, reported concerns about C's deteriorating memory.
In 2019 and 2020, C made unsecured loans to a company controlled by her financial advisor, KH. A reported that C had at times suffered from hallucinations during 2019 and 2020.
On 15 July 2020, C executed an enduring power of guardianship (EPG) appointing J as her enduring guardian, with KH as the substitute enduring guardian if J was unable to continue for any reason. KH signed for acceptance on 15 July 2020, J did not. On the same day, C appointed SP (a lawyer recommended by KH) as her enduring attorney (EPA), with KH as the substitute attorney on the death, bankruptcy or incapacity of SP, or if SP renounced the power. The EPA would only come into force on a declaration under s 106 of the GA Act by the Tribunal that C did not have capacity.
On 9 February 2021, C was admitted to hospital. She was disoriented and confused, and remained so, leading the treating team to apply to the Tribunal for orders under the GA Act.

19 April 2021

GAA/702/2021 – s 40 application - [Hospital] seeking appointment of administrator; and

GAA/1186/2021 – s 106 application - SP seeking activation of EPA

Treating psychiatrist Dr V had diagnosed C with Alzheimer's disease on the basis of a history (from family and friends) of cognitive and functional decline over the past 3 years, with more marked deterioration in the previous 18 months, and a Mini-Mental State Examination (MMSE) score of 14/30 and MRI scan changes consistent with Alzheimer's disease, both on 11 February 2021. Dr V's view in his report of 23 February 2021 was that her condition already rendered C incapable in all financial, legal and personal decision-making.
Social worker Ms E noted there had been no formal services in place prior to the admission, with J and A assisting with bill paying. The EPA had not been sighted by the hospital. Comments in the service provider report of Ms E indicate that A believed KH was the attorney and was having ongoing conversations with him, and that J was concerned about whether C had had capacity in 2020 to make the EPA and a new will. J indicated in a later hearing that he understands he is the beneficiary of that will.
The hospital did not apply for the appointment of a guardian on the basis that J held the EPG. The hospital believed J could act as EPG in making appropriate discharge arrangements for C, but they were concerned about the EPA, due to J and A reporting confusion and hallucinations during periods prior to and soon after those documents were executed. This is why they only applied for an administration order, even though those documents were executed on the same day. The hospital had not sighted the EPG.
On being notified of the s 40 application, SP applied under s 106 seeking a declaration to bring the EPA into force as an alternative to the making of an administration order. The matter was referred to OPA for investigation.
PT was appointed emergency administrator under s 65 on 18 March 2021 as C was reported by SP to have total net assets in excess of $3 million in a combination of real property (the home where she lives and a rural property together constituting two-thirds of her assets), superannuation, savings, two cars and a boat. I was satisfied she may be a person for whom an administration order could be made, and it was necessary to make immediate provision for the protection of her estate. I note that C's income (derived from the superannuation) was estimated at only $48,000 a year. The hospital had asked for such an order to be made, as C could not be discharged to suitable care unless there was a person with authority to make the financial arrangements.
C suggested to the OPA investigator that her accountant CB was very thorough, and could be trusted, and might be an alternative to the EPA appointing SP. This has proven to be incredibly important and true, as will be seen below. The OPA investigator had arranged to visit C in the morning on advice from A and J that she was more lucid for about an hour in the mornings. C also at that time had a fairly clear recollection of creating the EPA and EPG and told the investigator that those instruments were still consistent with her wishes.
The OPA report of 14 April 2021 states 'C has expressed to the writer that she does not want her brother J in charge of her finances. This is a consistent wish that she has expressed to A and SP too'.
The OPA report also documents a conversation with J regarding the fact that he has not yet signed the EPG, and states that J sent the investigator an email on 8 April 2021 advising he would arrange to sign the EPG and email a copy to the investigator. This still had not occurred when the report was written.
At the hearing on 19 April 2021, I dismissed the application under s 106. This was because CB was willing to take on the role of administrator without charging fees, whereas SP would have required remuneration to act as enduring attorney. I was satisfied that CB was suitable and C indicated that her appointment was consistent with her wishes. I revoked the emergency appointment of PT and appointed CB plenary administrator.

9 and 19 August 2021

GAA/2867/2021 (s 74(1) CB seeking Directions as administrator); and

GAA/3375/2021 (s 85 CB seeking review of administration order where administrator wishes to be discharged)

CB sought directions from the Tribunal on 6 July 2021 for two reasons:
(1)she was concerned that the $10,000 per week cost of in-home care organised by J prior to CB's appointment was unaffordable and sought directions regarding whether this should be continued, or more sustainable arrangements made; and
(2)she had discovered that C had purportedly entered into two unsecured, fixed-term loan agreements in 2019 for a total of $550,000 on KH's advice to an entity controlled by KH. She sought directions regarding whether steps including legal proceedings should be taken to recover those funds, and authorisation for the costs of such steps to be met by C's estate. These loans were not disclosed in the statement of assets and liabilities filed by SP in the initial matter.
At hearing on 9 August 2021, CB noted that the very unexpected level of complexity and challenge that now faced the administrator of C's estate was such that she sought to stand aside, as an alternative to the making of the directions and Beddoe order sought.[2] I accepted this as an oral application under s 85 of the GA Act, and on 19 August 2021, I appointed PT as the plenary administrator, with this appointment to be reviewed within 5 years. These are the orders which the current application seeks to have reviewed.
[2] Re Beddoe [1893] 1 Ch 557.
I note the following exchange regarding C's care needs at the hearing on 9 August 2021:
[J]:  So what has happened last Thursday: I've arranged a meeting with her psychiatrist and the occupational therapist at [the Hospital] to assess C to a view of getting a big reduction in the number of hours that she has care because since C has been on the medication, she has vastly improved. And she just doesn't need these people there 24/7, you know …
MARILLIER MS:     Yes.
[J]:   It was all a bit of a rush because she had to get out of hospital. And there's not a lot of people that do 24/7 care. Obviously, there will be cheaper alternatives. But, you know, C has improved so much that it's just not necessary. So that's something that's in hand at the moment. They are actually going to get an independent occupational therapist to - - -
MARILLIER MS:     Do a functional capacity assessment?
[J]:   - - - have a look at C and make some sort of suggestion as to what the hours should be.[3]

24 February 2022

GAA/622/2022 (s 110K J seeking declaration EPG valid or invalid);

GAA/662/2022 (s 40 PT seeking appointment of a guardian); and

GAA/663/2022 (s 110N PT seeking revocation of EPG)

[3] ts 10, 9 August 2021.

These three linked applications were made because J had made new care arrangements for C appointing his friend of 7 years, M, without prior agreement from PT. J sought that the Tribunal '[c]onfirm the legality of my current EPG; direct PT not to attempt to influence or halt my actions which are in the best interests of my sister and offer the best care; and to explore the possibility of obtaining an EPA'.[4]
[4] Application lodged 10 February 2022.
PT sought that the Tribunal appoint a guardian because J had 'changed the care arrangements … removed the in-home care support provided by [professional provider] and installed alternative private carers. [He] first raised his plan with PT on 29 December 2021 and we have been attempting to work with him on this since then. Temporary arrangements have been agreed to while the issue of Guardianship is reviewed'.[5]
[5] Application lodged 11 February 2022.
PT also had concerns that when J provided a copy of the EPG on their request, he had still not signed to accept it. He eventually provided them with a copy which he had only just signed on 28 January 2022, despite the discussion he had had with the OPA investigator set out at [17]. In that context I note J told me at the hearing on 24 February 2022 that the failure to sign was 'purely an oversight on my behalf. I didn't – I – I was unaware, and excuse my ignorance, that I had to – that that had a bearing on it. I thought C selected me and, you know, I didn't realise the importance of that'.[6]
[6] ts 15, 24 February 2022.
On 24 February 2022 I made orders finding the EPG of 15 July 2020 valid (as there was no contemporaneous medical evidence that set aside the presumption of capacity at the time, and also relying on the conversation reported by the OPA investigator at [15] that C had stated in 2021 that the EPG still reflected her wishes.)
I revoked the EPG on the same day, as I was not satisfied that it constituted a less restrictive alternative to the making of a guardianship order. This was on the basis KH was named as substitute guardian, and given the very serious concerns regarding KH's actions in relation to the loans to his company (which meant I was not satisfied that he would make decisions in C's best interests) it could not stand as a satisfactory mechanism for C.
The service provider report of occupational therapist (OT) EN of 23 February 2022 noted that C was unhappy that J 'tells her what to do', that this is long-standing, and that J's guardianship incited some conflict between them. EN also indicated that C did now require 24/7 supervision, and that being at home may become untenable if her condition deteriorated further or there were insufficient funds to provide for constant supervision. This report stated that C was unable to understand and follow the advice of treating professionals due to significant memory loss, loss of higher executive function and lack of insight into her diagnosis and how it affects her.
There was evidence of C's incapacity to make personal decisions in her own best interests as a result of her marked cognitive impairment and lack of insight from consultant psychiatrist Dr R.
The following exchange occurred, indicating C's feelings regarding her experience, wish to stay at home if possible, and preference to be independent:[7]
[7] ts 37, 24 February 2022.
[C]:  Can I just say it's – I have spent 51 years in a position where I can – was doing all of these things that you are talking about now - - -
MARILLIER MS:     I know.
[C]:   - - - and I think, "I – this is what I do. That's what I did".
MARILLIER MS:     I know. That's right. I know you were a very - - - highly esteemed professional woman. I understand. It makes it very, very difficult
[C]:       It is, it is scary.
MARILLIER MS:      - - - to go on this journey.
[C]:  I don't want people living in my house all of the time. I mean, there's nothing wrong with the people, but you need space. It's - - -
[J]:   Is that what you want? Living alone?
MARILLIER MS:     She's just saying she needs her own space. That's it. So the - - -
[C]:       Yes (indistinct) - - -
MARILLIER MS:     - - - independence and agency that has been so important to [your] identity; is that right?
[C]:       Well, yes.
I was satisfied by the evidence of Dr R and EN that C was a person who was in need of a guardian. C said about J '[h]e may be an amateur about it, but he does it with a good heart'.[8] I took this to indicate that she was not opposed to his appointment.
[8] ts 18, 24 February 2022.
However, I was not satisfied that J could competently decide the care arrangements for C. This was because neither he nor M had considered the need for there to be appropriate insurance in place to cover C or M or been able to identify what that appropriate insurance would be.[9] M appeared to have had only informal experience caring for people in her own home. J and M had decided that because M would be cheaper than care provision either by the previous professional care provider, or by M working under the umbrella of the PT preferred supplier (which would have arranged appropriate insurance, and provided qualified cover for any time M was unwell or needed to take leave), she would not work through the provider, but be self-employed. M had not yet provided any invoices or her ABN to PT. No arrangements for superannuation, tax or insurance had been finalised prior to M moving into C's house.
[9] ts 25 – 27, 24 February 2022.
I found that J was not suitable to be the guardian because of the 'very informal way that [he] tried to set this up and the vulnerability that has been exposed in terms of understanding what the risks are of that and I need someone making C's decisions about accommodation and services who is able to understand and weigh up the pros and cons or the risks and benefits of different options'.[10] I was 'not satisfied he was able to fully understand the implications of the decisions around the service arrangements'.[11]
[10] ts 29, 24 February 2022.
[11] ts 31 – 32, see also ts 38 – 42, 24 February 2022.
I appointed OPA as limited guardian to make medical treatment, accommodation and services decisions, with that order to be reviewed within 12 months. Prior to this point, J had been acting informally in making personal decisions for C until he signed the EPG to accept it on 28 January 2022. He was the enduring guardian from 28 January 2022 to 24 February 2022, when his appointment was revoked. From that date, OPA had the legal authority to make personal decisions in relation to where C lived, either permanently or temporarily; with whom she would live; medical treatment; and the services to which she should have access.

30 August 2022

GAA/3032/2022 – (s 86 J seeking review of guardianship)

J filed an undated document with the Tribunal, which was lodged on 13 July 2022, and accepted as an application under s 87 for leave for review of the guardianship order under s 86. J expressed concern that the delegated guardian had made a decision to terminate M as companion carer, and that this was not in C's best interests. He also claimed that multiple requests to meet with the guardian, and a document he said represented C's wishes had been ignored.
J reported that the guardian had set up bi-weekly meetings with the organisation PT had previously indicated would be the preferred provider or overseer of care arrangements. He said that there had been two meetings with C on her own, and then about 10 days after the second meeting written notice had been provided that M's employment was terminated.[12]
[12] J's request for review of Guardianship, folio 1, matter GAA/3032/2022.
The Service Provider report from that organisation dated 14 July 2022 reports that C told her she felt: 'M and J make a lot of decisions on her behalf, 'M and J talks (sic) over her and she sometimes feels she is not being heard', 'C does not like M living with her 24/7 and prefers dropin supports'. The author also stated 'C has mild dementia which impacts on her cognition and speech, but given time she is able to articulate her views and wishes', 'C is extremely vulnerable to be financially exploited if she does not have formal arrangements in place', and that it is unknown whether C would accept services 'as M and J [have] blocked formal professionals services (sic) access to C'. She expressed great concern for C's health and safety as a result.

An aged care provider nurse manager who had been contracted by the delegated guardian described ringing almost every day to make an appointment to come and assess C's needs and continence as set out in her support plan (which approved a Level 4 home care plan). She was also trying to facilitate an OT assessment for any equipment needs C might have to live safely at home. M answered the phone once, but would not put C on the phone or allow the provider to speak to her. Staff from the service were attending the home most days and knocking on the door, which was never answered although there was evidence that someone was upstairs. When the provider made a home visit with the OT, M would not open the door. The provider said, 'that C is being surrounded by people who do not agree with the health professionals to assess or guide C and to allow them to provide the equipment and care necessary for a healthy lifestyle is concerning'.[13]
[13] Service provider report of DP, 15 August 2022.
PT's report of 22 August 2022 is comprehensive and written by the PT Executive Officer. It documents contact had by PT with J and M over the 6 months between the hearings. It states that PT does not agree to M's claims for payment on the basis that neither OPA as guardian nor PT as administrator had approved her service provision. The document provided to PT by M as evidence of the agreement was an unsigned document dated 19 February 2022, and PT noted that was only five days prior to OPA being appointed as guardian. PT's report states, 'The issue of M's 'invoices' remains unresolved, however she has been paid the total amount of $29,600 (which equates to $1,045/week for the past 28 weeks) from C's Estate and any further payment is subject to dispute which will be dealt with after the outcome of the guardianship hearing'.
The PT report documents a meeting on 28 July 2022 when M and C attended PT without an appointment, and M provided a copy of the document dated 19 February 2022 which was now signed by J agreeing to pay M $10,250 per fortnight for her services.
I note that J had no authority to commit C to that financial outlay, as he was not, and has never been, legally authorised to enter into a financial contract that binds her estate. As enduring guardian, he was, between 28 January 2022 and 24 February 2022, authorised to make arrangements for C's care. Where that was via government funds (as in the Home Care Package) rather than C's personal funds, he could potentially do so without input from her administrator, but where it was from her personal funds, it required that the administrator be satisfied it was in her best interests (and affordable and sustainable within her estate) and the administrator would be required to agree and to sign such a contract.
PT reported that with the arrangement as purportedly made by J, C's budget was in deficit to the tune of approximately $23,000 per month, or $277,000 a year. Her total assets (on the basis of more conservative valuations than those reported by SP in the original hearings) were now valued at $1.2 million, with her home and the rural property from which she derived no income constituting $1 million of that total. It was apparent that her assets would rapidly be exhausted.
PT recommended that OPA remain as guardian as J 'has shown little understanding of providing affordable services to [C] to remain living independently in her home, and in view of the previous unworkable relationship between J as guardian and PT as administrator'.[14]
[14] Report of the Public Trustee, 22 August 2022.
J provided submissions dated 25 August 2022 which purportedly quoted correspondence with various representatives of PT, OPA and providers. Copies of the original source documents were later filed. J indicated that he had been told that he as guardian had the right to choose a carer and PT would approve or decline the cost only (my emphasis). This was found in an email dated 20 January 2022 from PT to J. This demonstrates that J was told, in writing, that PT could decline a care arrangement made by J.
Also filed was subsequent correspondence where M states she is drafting emails to be sent in J's name for him to approve. In addition, there is an email to M dated 2 June 2022 from the Executive Officer at PT explaining the basis on which the payment detailed at [38] will be made, and apologising for the difficulties which have occurred, and expressing a hope that arrangements may be able to be made to allow her care to continue. It also notes that PT has no formal authorisation from C's OPA guardian regarding the services, and that was being sought.
A subsequent email from the PT Executive Officer to M dated 8 July 2022, explained that M had no right to request information about C's estate, and no right to request documents about the guardian's decision-making about service provision. It noted that the document of 19 January 2022 was unsigned, and sought evidence that the 'arrangement' had ever been approved by the OPA guardian or PT as administrator. It stated that in the absence of such evidence, clauses as to 8 weeks' notice for termination were unenforceable. The email ended 'I trust that you will cooperate with the care services that have been put in place by C's guardian beginning on Monday'.[15]
[15] Document filed by J, 29 August 2022 'Notes for 30 8 22 detail ITEM 5'.
The OPA report of 26 August 2022, like that of PT, sets out a detailed chronology of events during the previous 6 months. It documents that J and M were advised on 1 July 2022 that an alternative service provider would commence on 11 July 2022, and there was no need for M to provide 24/7 care as of 11 July 2022. I note that J and M confirmed in the current hearing that they received notification of M's termination on 1 July 2022. The OPA report detailed subsequent discussions with C's general practitioner (GP), who had contacted the guardian after J, M and C had attended the surgery seeking a letter of support from him or M to continue. OPA scheduled a home visit for 15 July 2022 to assess the situation. The care provider appointed by OPA reported attending C's home daily from 11 July 2022, and no-one opened the door on each occasion. They held concerns for C's safety. OPA organised to attend with police, and considered there may be a need to seek a warrant under s 49 of the GA Act.
The visit is documented by OPA in these terms (I note that J and M's recollections differ from those of OPA):
… Upon arrival, M was outside and advised C was inside and would advise her that the [delegated guardian] DG and [Acting Manager Guardianship] (A/MG) were there to speak with her. M walked inside the house and locked the door. C appeared at the door and attempted to speak with the DG but could not be heard. J arrived shortly after, he appeared angry and became verbally aggressive towards the DG and refused to allow the DG to speak with C. C then came outside her property and the DG asked to speak with her in private. J refused to let the DG speak with C alone and insisted he be included in the conversation. The police officer advised J to allow DG to speak with C privately.
The DG re-introduced herself to C and explained the purpose of the visit and to discuss the HCP and OT and Speech assessments. The DG began to explain the [home care package] HCP to which C advised she recalled Ms W talking to her about. The DG advised her that she had told Ms W on two separate occasions she did not want M in her house or to be her carer. C advised she did not recall saying this. The DG advised C that her current ACAT assessment does not state she needs 24/7 care, which surprised C. C advised she was not aware that [professional care provider] were coming to provide her services through the HCP and the DG advised C that they were supposed to start on Monday 11 July 2022. C asked the DG to explain the HCP and what it entails, and DG advised they would visit seven days a week for 2 hours at a time to help with meals, transport, groceries, showering, or anything else they identify as a need after meeting with her. C listened intently; however, the conversation stopped when M walked outside from behind the front door.
A/MG, Ms K, spoke with M who reported that she goes to bed each night, and rises before C does. M reported that in her opinion C required 24/7 care and advised that she provides services such as cleaning, housework, cooking, shopping, and attending appointments with C. M and J are of the view that M is cheaper than the HCP. The DG advised again that PT had informed the DG that the ongoing cost associated with 24/7 care could not be sustained by C's estate. J disputed this information, stating C has sufficient assets to afford 24/7 care. The meeting ended prior to the DG being able to discuss the OT or speech assessments with C as J was verbally abusive and demanded to know what was discussed with C. C became flustered as a result and was not able to recall clearly. At this point J raised his voice and became verbally abusive resulting in the police officer stepping in[.]
Further:[16]
J has objected to all service decisions made by the DG that are not in line with his views and wishes, he has provided his views by telephone and by email. In addition, it appears that J does not fully understand the roles of PT and OPA, as he continues to request financial information from OPA.
M continues to use C's email account to email the DG, reportedly on behalf of C, to request that the provision of support services remains with her.
[16] Public Advocate's Report, 25 August 2022.
At the hearing on 30 August 2022, I gave leave for the guardianship order to be reviewed, because the information set out above demonstrated that J and M were actively obstructing the lawful decisionmaking of the guardian, and this constituted an 'other reason' that required the orders be reviewed in C's best interests. I found that it was necessary to broaden the scope of the guardianship. This was so that the guardian had power, if they determined it was in the best interests of C, to take legal action to remove M from C's home. M had not left the premises as required given the guardian already had the power both to determine with whom C would live, and the support services to which she would have access.
I therefore added the functions of determining what contact, if any, C should have with others, and the extent of that contact, and to act as next friend for C, should it be necessary to seek a restraining order.
I made these orders reviewable by the same date as the existing administration order, 19 August 2026, as it was clear that J's ability to understand the legal realities of the roles and to make decisions in C's best interests within the existing circumstances was no better than in February 2022, and he remained unsuitable for appointment as guardian.
What is set out above was sufficient for me to find J unsuitable, but in addition, during a pause in the hearing, J was observed to accuse C in heated terms of 'being a traitor' shortly after she had indicated that she did not necessarily want M to live with her. I put this to him on being informed of it, and he confirmed it. I was very concerned that this indicated that J was not acting in a supportive manner to C, and this further called into question his ability to make decisions in her best interests.
M's subsequent applications to gain access to documents and transcript of the hearing were heard and determined by Member Child who found it was not in the best interests of C, and did not relate to current proceedings, and refused to grant access.
It appears that despite the additional functions granted to OPA, M has continued to live in C's house, and she and J are of the view that she is providing care under some form of agreement for which she should be paid.
That brings us to the current application, where J and M have sought review of the administration order, indicating that they are now happy with the guardianship order. I note that the current OPA guardian had recently recommended M's employment to care for C.

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;[17]
•every person is presumed to be capable of looking after their own health and safety; making reasonable judgements in matters relating to their person; of managing their 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;[18]
•orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;[19] and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned and take them into account.[20]
[17] GA Act, s 4(2).
[18] GA Act, s 4(3).
[19] GA Act, s 4(4).
[20] GA Act, s 4(7).

The evidence before the Tribunal

Dr O, C's GP, submitted a medical report dated 21 December 2023. M submitted a document signed by Dr O dated 16 August 2022 addressed 'To whom it may concern' indicating that he supported J to be reinstated as enduring attorney and guardian (I note that J was never enduring attorney, and that the enduring guardianship has been revoked and cannot be reinstated). He also indicated that C had told him that she wanted M to remain as carer, and would prefer to be cared for by people she is familiar with and has trust in.
Reports from the Public Trustee legal officer and C's trust manager were filed.
A service provider report was received from the care provider contracted by OPA, along with a Client Assessment dated 15 September 2023.
Multiple submissions were received from M. She attached copies of documents including a letter dated 18 February 2022 from her to J, attaching details of the terms of 'The Arrangement', followed by a signature page signed by J 'on behalf of [C]', witnessed by T and dated 19 February 2022, followed by a far more detailed 'Proposal' to be presented to the new delegated guardian which was signed by M and witnessed by J on 4 October 2023. M also filed invoices and reimbursement requests which remain unpaid. M's claims on 13 January 2023 for unpaid invoices sit at $221,525.00 by her calculations, and expenses for which she seeks reimbursement as of 24 July 2023 at $20,536.87. M also filed pharmacy bills which she said had not been paid by PT, causing distress.
M, J and T (who all attended by telephone) and the delegated guardian provided oral evidence and/or submissions at the hearing. C spoke briefly on the telephone from her home (with M present). She was too confused to be able to respond to questions or comment in any meaningful way and ceased participating after a minute or so.

Does C have capacity to make reasonable decisions in her own best interests in regard to financial decisions? Is there a need for an administrator?

Dr O's written report is consistent with the previous specialist medical evidence in that he finds C cannot manage complex financial or legal decisions, because of her dementia. Past events as set out above have also demonstrated that C is vulnerable to financial exploitation.
C's estate is complex. The PT legal report of 13 December 2023 sets out the ongoing efforts they are making to retrieve the loan funds and interest from KH.
The Trust Manager's report of 7 December 2023 details the consideration currently being given to which of C's assets should be liquidated in order to maintain her safely at home for as long as possible, in accordance with her wishes. This includes discussion of the sale of a 10,000m²paddock with shed (C's real property aside from her residence). The Trust manager says any sale has been put on hold until later in 2024 due to recommendations of the (new) guardian and J who has reported that it holds sentimental value to C, and C visits it regularly. Retaining the property costs C more than $5,000 a year. CB proposed this property to be sold in her initial filing with PT in 2021.
The PT Trust Manager's report notes as issues of concern the failure to utilise the home care package to provide care to date, noting that this is highly detrimental to C's estate. Daily fees are currently being charged (and no service provided due to the blocking of access), but if the package is used, the fees are capped both annually and also subject to a life-time cap over 5 years. The guardian gave evidence that although, since her appointment on 21 August 2023, she has organised review by a care provider, and an arrangement has been made that respite care (up to 70 days) will be provided for C when she and/or M request it, no such request has occurred.
The PT trust manager report also notes that the proposed sale of C's car (which she has been unable to drive for several years, her licence having been revoked for medical reasons, and which was proposed as far back as CB's first statement in 2021) has been frustrated by M who has blocked access to the vehicle which is garaged at C's home.
M stated that C is resistant to meeting new people/caregivers as a justification for the blocking of access to C. This is in contrast to the reports of the service providers who have written reports for the Tribunal since 2021, who all report that when they are able to speak with C on her own, she is happy to talk to them, and has at times expressed interest in having input from a speech therapist or an OT. The most recent service provider report dated 31 January 2024 states that on the one occasion a support worker found C on her own, she appeared vulnerable and wanted to know more about what assistance is available for her. This report expresses ongoing concern about C's well-being and expresses a belief that M and J have authority to make decisions currently which are detrimental to C.
The OPA guardian gave oral evidence that the records at OPA indicated a last email from PT about unpaid invoices on 10 October 2022 and then no documentation between that date and the Directions hearings of February 2023 or afterwards until June 2023 when the file was transferred to the duty team, prior to its allocation to the current guardian on 21 August 2023. She states that she and the accompanying senior guardian had been able to make contact and work co-operatively with M and J over two home visits since then. They had spent time alone with C, whose cognitive impairment was obvious. C indicated during one visit in response to a question of the guardian that she was happy for M to look after her. Dr O stated to the guardian that C appeared well cared for since M commenced caring for C.
There is a complex matter to resolve regarding whether or not M is entitled to any payment or reimbursement in addition to what was paid in 2022. The resolution of that question does not fall for determination in this hearing of a review of the administration order.
I am satisfied, and I find, that C is, by reasons of her dementia (a disability within the definition in s 3 of the GA Act) incapable of managing all parts of her estate, and she is in need of an administrator. This is because of the evidence of Dr O that C is incapable of complex financial or legal decisions, and as set out above, there are complex financial and legal decisions to be made.
There is no less restrictive alternative available other than the appointment of an administrator.

Who should be appointed?

Section 68 of the GA Act sets out the following criteria to be considered by the Tribunal:
68.Who may be appointed administrator
(1)An administrator (including a joint administrator) shall be —
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal —
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
…
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible —
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator[.]

J and T propose themselves either jointly or solely as limited administrator to manage all aspects of the estate other than the legal action against KH. They are both over the age of 18, and both spoke (and in J's case made written submissions) about their professional experience, in J's case as a bank clerk in the early 1980s, as a small businessman, and as a policeman, and in T's case he now works parttime in a car yard.
I find that J is not suitable to be appointed as administrator for the following reasons.
Firstly, it is contrary to C's very clear and consistent wishes, as set out at [16] and as reflected in her choice not to name him in her EPA of 15 July 2020. His appointment would be contrary to s 68(3)(b).
Secondly, I am not satisfied that J is able to do what is required to perform the functions required of C's administrator. Since 2021, first CB, and then PT as administrator have found that J has sought to enter into unsustainable financial agreements regarding C's care. J indicated to me that he had made no attempt to understand C's entitlements under any Home Care Package while he was enduring guardian.[21] I find that his actions demonstrate that he is not capable of understanding the legal and financial ramifications of his decisions, or the division of responsibility between an administrator and a guardian. As noted earlier in these reasons, J has never had the legal authority to bind C's estate in regard to payment for her care. Prior to my appointment of PT as emergency administrator, there was an EPA which had not been activated appointing SP. Since 19 April 2021, first CB and then PT has been the person with plenary authority as administrator.
[21] ts 42, 13 February 2024.
J and M both acknowledged that they knew from 1 July 2022 that her services had been terminated, and yet they and T persist in asserting that she has a right to be paid not only for work prior to that date but since.
J indicated that he had sought to explore with local accountants if they could assist him if he were appointed administrator, and he said, 'they didn't seem very keen'. I am not satisfied that J recognises the complexity of the situation, his own limitations regarding necessary knowledge and experience, or the type of professional assistance he would need to take on the role. Even excluding the KH matters, there are now potentially complex matters of law and equity surrounding the arrangements for C's care. J expressed reluctance to incur the cost that would be involved in seeking legal advice.[22] His appointment would be contrary to s 68(3)(c).
[22] ts 50, 13 February 2024.
Thirdly, I am not satisfied that J would make decisions in C's best interests. We had the following exchange:
MARILLIER MS: - - - I just want to make sure I've got this accurately. You said, you know, your sole goal is just to conclude this and what you mean by this is what you see as outstanding payments that are owed to M.
[J]: Yes. Well, that is the principal thing, but you know, there seems to be so much angst about this. None of us need this. I don't need it. You know, all this continual drama. I mean, we can't sit here in six months and have the same conversation, you know. When is it going to come to an end, you know?[23]
[23] ts 43 – 44, 13 February 2024.
J also stated:
I'm going to be brutally honest here. C – and this is nothing to do with dementia. C has certain traits in her that have always been there, and people say, 'Yes. But that's the dementia'. No. It's not the dementia. C is quite happy to backstab anyone at all, you know. She has done it to me. She has done it to friends. She has done it to colleagues at work. If you get on the wrong side of her, you know, look out and that is brutally the fact of the matter, you know.
And it's – you know, so it makes it difficult for people to – she will say one thing to me and one thing to someone else, you know, and this is what she does, you know, and there's no secret. We've been at loggerheads our whole life because of her trying to dominate me and everything. She tries to dominate everything. But this is a lifelong behaviour she has had, you know[.][24]
[24] ts 42 – 43 13 February 2024.
The comments set out in the preceding two paragraphs lead me to find that J holds antipathy towards C, which compromises his ability to make decisions in her best interests. He is now in a position of conflict of interest due to his belief that M has a right to be paid, notwithstanding her termination, and her reliance on a financial arrangement which he did not have the legal authority to enter into on C's behalf. J has been quite open about the fact that he believes C owes M a debt, and that if appointed administrator he would use C's funds to pay it. His appointment would be contrary to s 68(1)(c) of the GA Act.
An administrator shall not, without the authority of the Tribunal under s 71(5), make a payment in respect of a debt that the represented person is not obliged by law to pay.[25]
[25] GA Act, s 72(3)(b).
J does not understand this. He would be at risk if appointed administrator of making payments that may not be allowable, and for which he would then be found personally liable when his records were audited, unless PT relieved him of that liability.[26]
[26] GA Act, s 80(4).
T told me he was a friend of J's through motor sport, and had only met C twice (although he is described in J and M's application as a friend of 48 years). I had put him on notice at the Directions Hearing that he should familiarise himself with the obligations and role of a private administrator. He told me he had had a speed read of the Public Trustee's Private Administrator's Guide and knew he would need to keep accounts. When I asked him how he would deal with the complex issues raised during the hearing, he felt confident J could manage it with his informal help, or they could do the role jointly. He expressed a similar view to J's regarding M's expectation of payment, describing the failure for this to have already been paid as 'preposterous'.[27]
[27] ts 36, 13 February 2024.
I am not satisfied that T is suitable, as he does not appear to understand the legal and financial complexities of the current situation. I find he would not be able to make decisions in the best interests of C, being allied as he is with J and M.
Consequently, the only candidate remaining to be administrator is PT, and I will confirm the order by which PT was appointed on 19 August 2021.

Orders

The Tribunal declares that the represented person, [C] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate; and
(b)in need of an administrator of her estate.

The Tribunal orders:
Administration
The administration order dated 19 August 2021 is confirmed as follows:
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 administration order is to be reviewed by 19 August 2026.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
29 FEBRUARY 2024