CJC - [2024] WASAT 79

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   CJC [2024] WASAT 79
MEMBER:   MS F CHILD, MEMBER
HEARD:   15 JANUARY AND 24 JUNE 2024
FINAL SUBMISSIONS BY 27 JUNE 2024

DELIVERED : 31 JULY 2024
FILE NO/S: GAA 205 of 2024
GAA 240 of 2024
GAA 264 of 2024
GAA 265 of 2024
GAA 1802 of 2024
CJC
Represented Person
C
Applicant

Catchwords:

Guardianship and Administration - Review of guardianship order appointing Public Advocate as guardian - Application for appointment of administrator of estate - Application for filing of accounts by attorney acting under an enduring power of attorney - Represented person with diagnosis of fronto-temporal dementia and primary progressive aphasia - Whether represented person lacks capacity to make reasonable judgments about her person and her estate - Whether representative person is in need of a guardian - Whether represented person unable by reason of mental disability to make reasonable judgments about her estate and in need of an administrator of her estate - Wishes of the represented person - Distinction between wishes and capacity - Whether the enduring powers of attorney and enduring power of guardianship made by the represented person provide less restrictive alternatives to the making of orders - Transfer by an attorney of assets of the represented person to herself - Represented person located overseas - Whether the Tribunal has jurisdiction to review and make orders where represented person is outside Western Australia - Domicile - Whether the applications should be dismissed summarily on application of attorney - Lack of independent oversight of represented person's needs - Need for appointment of independent guardian and administrator of estate - Revocation of enduring powers - Apparent breach of obligations of attorney - Appointment of Public Trustee as administrator - Confirmation of the appointment of Public Advocate as limited guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 41, s 41(3), s 43(1), s 43(1)(b), s 43(1)(b)(iii), s 44(5), s 51, s 51(2)(g)(h), s 64, s 64(1), s 64(1)(a), s 65, s 67, s 70, s 71(3), s 72(1), s 84, s 85, s 86, s 87, s 90, s 97(1)(c), s 107, s 108, s 109, s 109(1)(a), s 109(1)(c), s 109(3), s 110, s 110B, s 110F, s 110H, s 110I, s 110N, s 110ZJ(3)(b), s 112(4), s 115, s 119, Pt 5, Pt 9, Div 3, Div 4, Sch 2, cl 4
State Administrative Tribunal Act 2004 (WA), s 9(a), s 9(b), s 47, s 47(1)(a), s 47(1)(b), s 47(1)(c), s 48

Result:

Public Trustee appointed plenary administrator
Public Advocate confirmed as limited guardian
Enduring power of attorney revoked
Enduring power of guardianship revoked
Attorney ordered to file copies of records of accounts of transactions made in connection with the power

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	Mr R Squires
Interested Party	:	Mr G Cummins and Mr J Birch

Solicitors:

Represented Person	:	N/A
Applicant	:	Edwards Lockhart
Interested Party	:	Public Trustee

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

BFO & Ors and KPW [2014] WASAT 68
BJB and GB [2008] WASAT 307
CD [2020] WASAT 41
Edna May Collins by her next friend Glenys Lesley Laraine Poletti v May [2000] WASC 29
EW [2010] WASAT 91
EW [2021] WASAT 111
FS [2007] WASAT 202
FY [2019] WASAT 118; (2019) 98 SR (WA) 190
GA and EA and GS [2013] WASAT 175
GC and PC [2014] WASAT 10; (2014) 85 SR (WA) 23
GG [2021] WASAT 133
In re S (Hospital Patient Foreign Curator) [1996] Fam 23
KDT [2010] NSWGT 5
NCK [2004] WAGAB 6
PR [2021] WASAT 32
Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
RK [2022] WASAT 112
SAL and JGL [2016] WASAT 63
SG v AG [2008] WASC 123
SQM [2015] NSWCATGD 41
WD [2022] WASAT 12

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These are the reasons for the decisions in matters before the Tribunal relating to CJC brought under the Guardianship and Administration Act 1990 (WA) (GA Act). As in all decisions of the Tribunal determined under the GA Act identifying information is removed to protect the privacy of CJC.
The original application was filed with the Tribunal on 12 January 2024 by C (the applicant), a daughter of CJC who sought the urgent appointment of the Public Advocate (Public Advocate) as the guardian of CJC. It was said there was an immediate risk of CJC being taken to Germany in circumstances where CJC 'lacked capacity and has special medical and health needs currently met in Australia and without any consultation with the represented person's family'.[1]
[1] Letter solicitor for the applicant dated 12 January 2024.
C filed an affidavit with the Tribunal which attested to the sale of the property of CJC in which she lived on the instructions of another daughter J, in an off-market sale and transfers from CJC's bank account.[2]
[2] Affidavit of CD, para 51.
In her applications C also sought intervention in an enduring power of attorney made by CJC in 2022 by which she had appointed J as her sole attorney[3] (2022 EPA). The application sought both the filing of records kept by the attorney and the revocation of the 2022 EPA.
[3] Pursuant to s 109(1)(a) and s 109(1)(c) of the GA Act.
C said that CJC had revoked the 2022 EPA in writing[4] on 21 January 2023 and had made a new EPA on 7 February 2023[5] appointing C jointly with her father M (CJC's estranged spouse) as attorneys for CJC.

Proceedings before the Tribunal

[4] Affidavit of CD, para 35.

[5] The 7 February 2023 EPA is witnessed by a doctor and a nurse and shows C and M's addressed as CJC's home address in Perth.

On receipt of the applications, on 12 January 2024, an order was made pursuant to s 65 of the GA Act which appointed the Public Trustee (Public Trustee) with all the powers and duties of a plenary administrator of the estate of CJC to protect and secure all of CJC's estate until the application for the appointment of an administrator could be determined by the Tribunal.[6]
[6] Such an order can be made pursuant to s 65 of the GA Act if the Tribunal (in this case constituted by the Case Management member) is satisfied that the person the subject of an application may be a person for whom an administration order may be made under s 64 of the GA Act and there is an immediate need to make provision for the protection of that person's estate.
In further case management orders made on 14 January 2024 the application was treated as an application for the appointment of an administrator of the estate, notice was given to the Public Advocate of her possible appointment as guardian of CJC and the time for the service of notice of the hearing of the applications was shortened.[7] Initially listed to be heard on 14 January 2024, the first hearing took place on 15 January 2024 (first hearing).
[7] Pursuant to s 41(3)(a) of the GA Act the member being satisfied exceptional circumstances existed for the shortening of the period of notice from the required 14 days.
Service of the notice of the hearing on CJC was only effected on the morning of the first hearing but CJC attended that hearing together with her daughter J and son in law A. The applicant C attended with her legal representatives. The senior investigator from the Office of the Public Advocate (senior investigator) attended and made oral submissions.
For the first hearing C produced a letter from a general practitioner Dr D dated 14 January 2024 which referred to CJC having a medical condition [and a] lack of capacity to make travel and legal decisions.
At the hearing J produced a copy of an enduring power of guardianship (EPG) made in November 2023 appointing J as CJC's sole enduring guardian. J advised that CJC had decided to move to Germany with her and A and they had purchased airline tickets to travel in February 2024.
J confirmed that all three properties of CJC (her home and two investment properties) had been sold and the proceeds of sale transferred into J's bank account. J confirmed this when asked during the hearing.[8] It was only later in the hearing when the proposal was made to take those funds into the control of the Public Trustee, that A said that the funds received from the settlement agent following the sales of the properties 'had been sent to the E[uropean] U[nion] for preparation of her life and travels'.[9]
[8] ts 19, 26, 28, 29, 30 and 31, 15 January 2024.
[9] ts 58, 15 January 2024. I consider that A gave misleading information about the proceeds of sale of the third property saying that 'the sum has gone through'^. I infer that statement was intended to suggest the funds had been used to purchase Bitcoin to prevent those funds being secured by the Public Trustee.
A said that an investment account in the European Union (EU) was in the name of CJC[10] but later said that it was in Bitcoin.
[10] ts 43, 15 January 2024.
The senior investigator recommended that the Public Advocate be appointed as CJC's guardian with wider powers than those proposed by the applicant so that a decision could be made regarding CJC's travel and other matters including her accommodation, treatment and services given the allegations made and the uncertainty as to CJC's capacity.
The senior investigator was invited to make an oral application for intervention in the EPG because of the conflict between the EPG and the appointment of the Public Advocate as guardian of CJC even in the short-term.[11]
[11] Priority given to decisions of an enduring guardian over that of an appointed guardian pursuant to s 110I, s 110ZJ(3)(b) and s 119 of the GA Act.
J and A say they felt ambushed as they had received the notice of the hearing only on the day of the hearing and wanted to seek legal advice about their rights.
Notwithstanding the shortening of the period of notice and therefore the lack of the standard 14 days notice to CJC and the lack of notice to J as the attorney, I made orders at the conclusion of the hearing as I considered that the orders were necessary and in the best interests of CJC.
I gave brief reasons for the decision to appoint the Public Advocate as CJC's guardian. I was satisfied that the presumption of capacity was displaced based on CJC's presentation in the hearing, her significant communication disability diagnosis of cognitive impairment and the report from Dr D regarding CJC's incapacity to make decisions about travel and I found that she was in need of an independent guardian.
There was, I considered a need for independent decision making for CJC due to a number of factors; the haste in the sale of her properties, the transfer of the proceeds of sale from CJC's estate into J's account, the reported lack of consultation with CJC's siblings about those sales and the proposed move to Germany, about which there were conflicting views and that one way airline tickets had been purchased by J for travel in February 2024. I was satisfied that neither J nor C were suitable for appointment due to the conflict between them and the divergence of their views regarding CJC's wishes.
I made orders appointing the Public Advocate as CJC's limited guardian with the functions to:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Div 3 of Pt 5 of the Guardianship and Administration Act1990 (WA);
(d)to determine the services to which the represented person should have access;
(e)to decide whether the represented person is to travel interstate or overseas;
(f)to decide the terms and conditions for which the represented person's travel;
(g)to take possession of all passports issued to the represented person;
(h)to notify the Australian Federal Police about the existence and effect of this order; and
(i)to notify the Department of Foreign Affairs and Trade about the existence and effect of this order.
The guardianship order was set to be reviewed by 27 March 2024.
I made orders suspending the EPG[12] during the appointment of the Public Advocate as guardian of CJC. I also ordered that the EPAs be suspended.[13] The applications for the appointment of an administrator and for the filing of records by J as the attorney were adjourned. An investigation by the Office of the Public Advocate was ordered which included investigation and report of the question of CJC's need for a guardian and administrator and her views and wishes.
[12] Pursuant to s110N of the GA Act. Pt 9A Div 4 of the GA Act dealing with the Tribunal's jurisdiction in respect of EPG's does not specify notice requirements in contrast to Pt 5 Div 1 dealing with applications for guardianship and administration orders which specify notice provisions s 41 and s 115 of the GA Act.
[13] Pursuant to s 109(3) of the GA Act.
At the conclusion of the hearing, I made a further order pursuant to s 72(1) paragraph (e) of Sch 2 of Pt B of the GA Act to restrain J's bank from any further transfer of funds received from the settlement agent following the sale of CJC's properties other than to transfer those funds to the Public Trustee who acted as her plenary administrator pursuant to the s 65 orders made.[14]
[14] That provision states The State Administrative Tribunal may … make such orders as it thinks fit for the purpose of preserving the nature, quality, tenure or devolution of any property forming part of the estate and direct that any money be carried to a separate account and declare the notional character which the money in that account bears.
On 17 April 2024 I made further orders pursuant to s 109 of the GA Act on the application of the Public Trustee. As I explained in the hearing on 24 June 2024 while the Tribunal would normally hear from the attorney in response to any application made under s 109(1)(a) of the GA Act,[15] having considered the material filed by the Public Trustee, including details of correspondence between the Public Trustee and solicitors for J and from J herself, I was satisfied that orders should be made. I was satisfied that there had been a failure to cooperate by J with efforts by the Public Trustee to ascertain the extent of the estate of CJC. I determined that it was in the best interests of CJC that I make the orders sought.[16]
[15] It was for this reason that C's application under s109(1)(a) had been adjourned.
[16] Part 9 of the GA Act contemplates ex-parte applications and orders. Section 110 provides that an application under s 109 may be made ex-parte or the Tribunal may give directions as to the persons to whom notice of the application shall be given and who shall be entitled to be heard. J had notice of the application in the hearing on 15 January 2024 and had by the time of these orders had had legal advice.
As indicated the guardianship order was initially set for review to be heard together with the adjourned applications. The listed date[17] was vacated due to illness and J then advised[18] she was not available for the relisted date in May and unavailable until after 15 June 2024.
[17] Hearing dates on 8 April and 13 May 2024 were vacated.
[18] To The guardian and to the Tribunal.
In April 2024 CJC travelled with J and A to Germany with the permission of the Public Advocate's delegated guardian on the condition that she would return to Western Australia by 15 June 2024 for the listed hearing before the Tribunal.
On 17 July 2024, a medical report dated 7 July 2024 was received from J written by a doctor in Germany giving the opinion that CJC was unable to fly due to medical conditions.
The final hearing was on 24 June 2024 and was attended by CJC, J and A by video from Germany. C attended by video from Queensland. H, the sister of CJC attended by telephone, and the solicitor and Counsel for C, the solicitor and Counsel for the Public Trustee and by the Public Advocate's delegated guardian and the senior investigator all attended in person.
Over the course of the proceedings, I have heard from CJC, C and J and A and C's legal representatives and the senior investigator and in the final hearing from H, the sister of CJC and the delegated guardian of the Public Advocate (guardian).
The applicant's legal representatives have filed submissions. I have also received reports and submissions from the trust manager and solicitor for the Public Trustee, the Public Advocate's senior investigator and the delegated guardian. J and A have filed extensive material and submissions.
At the conclusion of the final hearing, I allowed any further written submissions to be filed within three days of the hearing and advised the decisions would thereafter be reserved. These are the reasons for the matters decided.

Current matters to be determined

The current matters before the Tribunal are:
(1)GAA 265/2024 being a periodic review pursuant to s 84 of the GA Act of the guardianship order dated 15 January 2024 by which the Public Advocate is appointed the limited guardian of CJC.[19]
(2)GAA 1806/2024 being an application for leave to seek review of the guardianship order by J. Correspondence from J received by the Tribunal on 8 April 2024 'seeking travel rights' for CJC was deemed to be a request for leave to apply for review of the guardianship order and was listed together with the existing proceeding.[20]
(3)The adjourned applications made by C.
(a)GAA 205/2024 for the appointment of an administrator of the estate of CJC. The original application filed proposed the appointment of C, but this was later changed to the Public Trustee.
(b)GAA 264/2024 the adjourned application for intervention in the 2022 EPA by which CJC appointed J as her attorney. This application seeks the filing of records and accounts kept by J of dealings made in connection with the power (pursuant to s 109(1)(a)) and for the revocation of the 2022 EPA (pursuant to s 109(1)(c)) of the GA Act
(4)GAA 265/2024 being an application pursuant to s 110N of the GA Act by the Public Advocate's senior investigator made in the first hearing in respect of the EPG made by CJC by which she appointed J as the sole enduring guardian and in substitution C.

Principles to be observed

[19] The review was due by March 2024 but was delayed because of illness and then the unavailability of the parties. J said she was not available for the hearing listed on 13 May until after 15 June 2024.

[20] There was no service of the notice of the hearing of this application, so it did not proceed but as the Tribunal was already undertaking the periodic review of the guardianship order nothing turns on this. The Tribunal's powers of review are set out in s 90 of the GA Act and apply to applications under s 85, s 86 and s 87 and periodic review under s 84 of the GA Act.

In determining these matters, I must observe the principles as stated in s 4 of the GA Act.
Those principles state that the primary concern of the Tribunal is the best interests of CJC.[21] The principles provide that CJC is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; making reasonable judgments in respect of matters relating to her estate and managing her own affairs, until the contrary is proved to the satisfaction of the Tribunal.[22]
[21] GA Act, s 4(2).
[22] GA Act, s 4(3).
The principles also say that a guardianship or administration order shall not be made if the needs of CJC could be met by other means less restrictive of her freedom of decision and action.[23] A plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient to meet her needs.[24] Any order made should, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.[25] In considering any matter relating to CJC the Tribunal shall, as far as possible, seek to ascertain her views and wishes as expressed, in whatever manner, at the time, or as gathered from her previous actions.[26]
[23] GA Act, s 4(4).
[24] GA Act, s 4(5).
[25] GA Act, s 4(6).
[26] GA Act, s4(7).

In respect of the review of the guardianship order and the application for the appointment of an administrator of CJC's estate I must decide the following:
•is CJC a person for whom a guardianship and or an administration order may be made, that is, is the presumption of capacity displaced and the relevant statutory criteria met. If yes, is there a need for those orders or can CJC's needs be met less restrictively;
•if guardianship and administration orders are needed; who is suitable for appointment as guardian and administrator and what should be the scope and duration of any orders made; and
•I must ascertain the wishes of CJC and have as my primary concern the best interests of CJC.
In respect of the applications for intervention in the EPA pursuant to s 109 and EPG pursuant to s 110N of the GA Act, to make the orders sought I must find that the applicants have a proper interest and that I should exercise the discretion to intervene as proposed before orders can be made.

Evidence and material before the Tribunal

According to the material before me CJC is a 74-year-old woman and a retired educator[27] and accountant.[28] She has reportedly been married three times.[29] She has four children: J, her eldest child from her first marriage, a younger daughter C (the applicant) and two minor children who live with CJC's estranged third husband M in an overseas country. From what is understood CJC lived in in the Middle East with M for 14 years and then returned to live in Australia in 2019 after separating from M.
[27] Dr K's report.
[28] JCN10 letter signed by CJC in 2019.
[29] J's statement, page 1, para 3.
CJC is reported to have travelled widely internationally but apparently made her home in Western Australia in 2019. CJC owned three properties in suburban Perth, (her home and two investment properties) up until their sale in November/December 2023.
It was said CJC's main reason for returning to Perth from overseas was to be with C during C's university education and to be close to CJC's siblings.[30] Three of her siblings live in Perth (the siblings) the others in Singapore). C lived in Queensland to study and work but says she lived with CJC when in Perth and was intending to return to Perth having later accepted a job there.[31] This is disputed by J who asserts that C would not be clear with her about her intentions to return to Perth following the conclusion of her studies in Brisbane in 2022.
[30] J's statement.
[31] Affidavit of C, para 23. The senior investigator notes that C accepted a job in Western Australia but returned to Queensland as she had nowhere to live as CJC's house hadbeen sold.
J has lived in Germany with her partner A since 2019, previously living in another overseas country. J says in her written submission she and CJC tried to meet at least once per year when time permitted but had since the pandemic been in regular communication using WhatsApp.[32]
[32] J's statement, paras 7 and 8.
When asked to come to Europe with J in 2020 CJC is reported by J to have declined and said she needed to buy a house in Perth because of C. C is said then to have moved to Brisbane for her university study.[33]
[33] J's submission.
On 25 November 2022 an EPA was executed by CJC which appointed J as CJC's attorney (2022 EPA).[34] Notice was given to M by letter signed by J, purportedly revoking an EPA made by CJC in April 2022 appointing M as her attorney.[35]
[34] This document was created while J was in Germany and CJC living in Perth. It was witnessed by A's brother and the brother's work colleague.
[35] J's bundle of documents, JCN15.
According to C, in February 2023, CJC executed an EPA in favour of C and M jointly and the 2022 EPA was revoked in writing but these documents were not lodged at Landgate. J says she did not know about the revocation of the 2022 EPA until the first hearing.[36] This is in conflict with affidavit given by C.
[36] J's statement, para 26.
CJC was diagnosed in April 2023 with frontotemporal dementia and primary progressive aphasia by a geriatrician, Dr K following a referral from her general practitioner arranged by C.
J says that in the 18 months prior to the hearing she had been in constant contact with CJC remotely. J said that during 2023 she effectively became CJC's personal assistant organising her life and paying her bills.[37] Later J undertook comprehensive research about aphasia to access appropriate services for CJC to assist her with communication.
[37] J's statement, paras 8 and 12.
J alleges that M has a history of physical, psychological and financial abuse of CJC which J says is confirmed by friends of CJC who despite this reported history still assist M.[38] J says that M sold a property of CJC's in 2008 without her consent, has diverted rental income from CJC's properties to himself, accessed her bank accounts remotely and more recently asked C to arrange legal advice for CJC in respect of their divorce and presumably property settlement.
[38] J's statement, paras 36, 37, 38 and 39.
In 2022, J says she became aware of M accessing a Gmail account in what she says she believed to be an attempt to seek access codes to CJC's bank account and other sensitive information. In June 2023 J says that she became aware of M travelling to Perth and stated that CJC would then not answer her calls.[39] J said that a joint account was opened by M with CJC and that $70k from CJC's account was transferred into it. J says that M did not contribute to the account and left Perth on 19 June. J said she contacted the bank's fraud section to report this but was advised that 'nothing could be done and [they] hung up on her.'[40] This transaction was later reversed. Using the authority of the 2022 EPA, J says she then quickly transferred $210k from CJC's bank account to her own account at another bank.
[39] J's statement, para 29.
[40] J's statement.
J says that she was shocked on a video call on 22 June 2023 to see that CJC had a black eye. A radiologist report indicated that [CJC] appeared to have been punched in the eye. J asserts that M was responsible for this attributing it to M learning that the 2022 EPA had been registered with Landgate. However, according to the WhatsApp communication from R (CJC's brother) to J submitted in J's bundle, R reports 'Police Report' in the system. No report is given as [CJC] alleged it is still a fall.[41] In the WhatsApp communications from R to J, he advises that M's access to CJC's accounts have been removed and bank operations alerted.[42]
[41] J's statement, JCN30.
[42] J's bundle of documents.
When questioned about this allegation by the senior investigator M denied physical or financial abuse of CJC[43] asserting that the property in which CJC had lived had been purchased by him for CJC and C but was in CJC's name.
[43] Investigator's report.
J reportedly came to Perth in late October 2023 at the request of CJC's sister-in-law and siblings to assist CJC due to a deterioration in CJC functioning.
J arrived in Perth in late October 2023 and stayed with CJC at her home. Following the sale of CJC's home, it was leased back for a period and then CJC, J and A lived with A's brother until travelling to Germany in April 2024.
J says that CJC made the decision to go to Germany in November 2023. J says they then proceeded with the EPG which was made by CJC on 23 November 2023 appointing J as the enduring guardian.[44]
[44] An earlier EPG was attempted but did not meet the formalities to create an EPG.
J says that CJC had made the decision and announced to her siblings 'she was going to Germany' at her birthday party in mid‑November[45] or at a brunch at her brother's home on 3 December 2023.[46] Video evidence provided by J confirms CJC stating she was going to Germany.
[45] ts 12, 15 January 2024.
[46] J's statement, para 58.
J says that the siblings initially assumed CJC was visiting Germany but 'as time passed, they understood her intentions to move to Germany.[47] This was refuted by H, CJC's sister in the final hearing when she said she did not know where CJC was and had not been told anything, and that J 'had promised to bring her back for the hearing'.[48]
[47] J's statement.
[48] ts 32, 24 June 2024.
As confirmed by J in the first hearing the 2022 EPA was used by J to sell the three properties in the name of CJC located in Perth over a period of six weeks from November 2023 to early 2024,[49] including the home in which she lived and two investment properties from which it was said that CJC derived a rental income.[50]
[49] Property settlements on 18 December 2023, 22 December 2023 and 15 January 2024, J's bundle of documents at page 9.
[50] Affidavit of C, para 48.
J confirmed that the proceeds of sale of CJC's three properties were transferred to a bank account in the name of J and thereafter to purchase Bitcoin. In her later written statement[51] J states the properties were sold:
Under the authority of the EPA and conscious mom's having been compromised by [M] the settlement proceeds were transferred to my account, from which her funds were invested[.]
The Property Sale proceeds were deposited into My Suncorp Bank account (under the EPA provided to me by my mom); custodial funds were transferred to the company Coinify, where a pre-existing Coinify exchange account was held to facilitate my Mom's purchases of Bitcoin. Subsequently, Coinify transferred the purchased Bitcoin into my pre‑existing digital wallet and held it in custody as my mother's German assets in January. After Mom and I sought legal advice from My German lawyer, I now hold Mom's German assets under the operation of a Power of attorney authority granted by my mom, in accordance with German Law[.]
[51] J's statement, para 67.
As noted, in April 2024 the Public Advocate as guardian of CJC authorised the travel of CJC to Germany with J and A as it was accepted by the guardian to be the wish of CJC and J was assessed as understanding CJC's daily needs. Additionally, the guardian reported CJC had nowhere to live in Western Australia[52] her home having been sold and she was living with a family member of A. The guardian reports no other accommodation options had been advanced by C or CJC's siblings.
[52] Delegated guardian's report.
The Public Advocate approved the travel of CJC to Germany following the commitment by J[53] and on the condition that she would be returned by J to Australia for the Tribunal hearing in June 2024.
[53] J's correspondence to the guardian.
Prior to the final hearing which was listed on 24 June 2024, J produced on 17 June 2024, a letter dated 7 June 2024 from a doctor in Germany which stated:
Hereby I certify that I have thoroughly examined the above-mentioned patient twice and that I have come to the conclusion that she is physically and mentally unable to take her long-distance flight back home to her home in Australia.
She suffers from hypertension, congestive heart failure with permanent dyspnea, a primary progressive aphasia, she had a cerebrovascular accident in 2022. Actually she suffers as well from combined depression and anxiety disorder.
Her condition is very frail, a slight anaemia as well as a sudden weight loss suggest an underlying yet unknown disease, eg cancer. Thi[s] is currently being investigated.
The opinion that CJC was frail and not well enough to travel was challenged by CJC's sister H in the final hearing saying when she saw CJC on the video that CJC looked good and she was surprised that CJC was not able to travel. 'I think she's [in] better health than me all along. And now to know that she has heart problem, it surprises me. Within a few months, she has heart problem that she can[no]t travel.[54]
[54] ts 32, 24 June 2024.
H's view appears to be consistent with J's own views about CJC's health expressed in the first hearing and in her written statement filed with the Tribunal[55] J asks in respect of CJC: 'What health needs does she have?' [C] did not provide any evidence in the SAT application. This invalidates SAT requirements. 'Mom is only on standard cholesterol (Atorvastatin) and blood pressure (Diovan) tablets, common medications for someone of her age. Otherwise, she is in good physical health and has been confirmed fit to travel by Dr [K] and Dr [L]'.
[55] At item Q responding to C's affidavit, para 64. Although filed on 18 July 2024 prior to the final hearing it is likely that this statement was prepared prior to CJC's travel from Australia.
This view was confirmed in J's correspondence to the guardian asserting she needed to travel back to Germany for her own personal commitments which could be delayed no longer asserting CJC was fit to fly. This was accompanied by a brief confirmation letter from Dr H.
In the final hearing A confirmed that CJC's assets to support CJC's visa application was the Bitcoin held by J under a German EPA.
A said that a German EPA had been created in March 2024, drawn by the German solicitor before CJC left Australia on 23 April 2024. The German EPA is reportedly both a personal and financial power. According to A, the German EPA has not been provided to anyone. When asked whether the document could be submitted to the Tribunal and the Public Advocate, J said that the German solicitor had advised that the document should not be provided to the Tribunal as it was irrelevant to them.[56]

Preliminary questions

[56] ts 37, 24 June 2024.

In submissions filed on 27 June 2024, J and A challenge the jurisdiction of the Tribunal to make any orders for CJC and seek dismissal of the proceedings under provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Should the applications be dismissed under State Administrative Tribunal Act 2004 (WA) provisions

J seeks the dismissal of the proceedings under s 47 of the SAT Act which relate to the power of the Tribunal to dismiss proceedings if found to be frivolous, vexatious, misconceived or lacking in substance[57] or brought for an improper purpose[58] or otherwise an abuse of process[59] or pursuant s 48 of the SAT Act in respect of proceedings causing disadvantage.
[57] SAT Act, s 47(1)(a).
[58] SAT Act, s 47(1)(b).
[59] SAT Act, s 47(1)(c).
This submission was filed after the matters had been heard and the decisions reserved. The submissions made to support dismissal on these grounds are wide ranging but largely deal with conflicts in the evidence between the applicant and J or allegations regarding C's conduct which predate the proceedings being commenced.
Dismissal of an application by the Tribunal on these grounds is rare and the preferable course is that applications be determined substantively, that is on their merits.[60] This is particularly so in guardianship matters where the exercise of such a discretion 'sits uncomfortably' with the protective nature of the jurisdiction.[61]
[60] See RK [2022] WASAT 112 at [6].
[61] See WD [2022] WASAT 12 at [82].
Issue is also taken with the affidavit filed by the applicant. In respect of this issue, the SAT Act directs the Tribunal to make or review decisions fairly and according to the substantial merits of the case and to act speedily and with as little formality and technicality as is practicable.[62]
[62] SAT Act, s 9(a) and s 9(b).
Having regard to all the provisions on which dismissal is sought and the evidence including J's own evidence I am satisfied that there is no basis for dismissal of the proceedings on the grounds submitted.

Does the Tribunal have the jurisdiction to make and review orders in respect of CJC

J and A argue that CJC is no longer resident or domiciled in Western Australia and as such the Tribunal has no jurisdiction to make orders for her.
Counsel for the applicant provided examples of cases determined by the NSW Guardianship Tribunal: KDT [2010]NSWGT 5 (KDT) and SQM [2015] NSWCATGD 41 where guardianship orders were made by that Tribunal when the represented person was overseas, the Tribunal finding the represented person's domicile remained in New South Wales and within the Tribunal's jurisdiction,
In KDT the Tribunal concluded that there was a need for a continuation of the appointment of the Public Guardian with an advocacy function to promote KDT's best interests in seeking to obtain information ... and … to protect her rights even while she remained overseas [31].
The question of domicile and jurisdiction in guardianship proceedings was considered by the Full Board of the Guardianship and Administration Board[63] in NCK [2004] WAGAB 6.[64]
[63] The Tribunal has since January 2005 exercised most of the jurisdiction of the former Board under the GA Act. There are exceptions which are not relevant to this matter.
[64] NCK Justice Barker President, Ms H Leslie Member, Ms J Stanton Member, 27 October 2004.
In that case the Full Board held at [33] - [40]:
33In Australia, the law relating to domicile is now largely governed by the Commonwealth and State and Territory domicile Acts, which do not replace the common law but modify it in parts:  see Domicile Act 1982 (Cth) and Domicile Act 1981.  The law of domicile for the purposes of the Act is governed by the Domicile Act 1981.
34The common law recognises three types of domicile:  domicile of origin; domicile of dependence; and domicile of choice. … Domicile of choice is the domicile that a person of independent capacity acquires as the result of a voluntary choice of a new place of residence.  See generally Nygh and Davies, Conflict of Laws in Australia (7th ed) chapter 13; Sykes and Pryles, Australian Private International Law (3rd edition) pp 349-366.
35The Domicile Act 1981 affects some of the common law rules.
36While s 7(1) of the Domicile Act 1981 (WA) recognises that a person is capable of having an independent domicile if he or she has attained the age of 18 years or is, or has at any time, been married, and not otherwise, s 7(2) expressly provides that subs (1) does not apply to a person who, under the rules of law relating to domicile, is incapable of acquiring a domicile by reason of mental capacity.
37Section 9 of the Domicile Act 1981 (WA) provides that the intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his or home indefinitely in that country.
…
40The point to be noticed about the domicile of choice rule is that the choice must be made by a person of independent capacity, as s 7 of the Domicile Act 1981 (WA) confirms. At common law, if a person, by reason of mental illness, is incapable of the required intention to settle in a country indefinitely, her or his domicile remains unchanged as long as the incapacity persists. This rule is not altered by the Domicile Act 1981 (WA)[.]
A and J argue that CJC had the intention to go to live in Germany having made that decision in November 2023 and in their recent submission provide information as to how this intention was communicated to others including health professionals.
However, I consider that CJC established dementia diagnosis, identified cognitive impairment and the existing orders made for her together with the circumstances of her travel to Germany are all relevant to the question of whether CJC's domicile has changed.
It is the case that at the time of CJC's travel she was subject to a guardianship order, the finding having been made by the Tribunal that she lacked capacity to make reasonable judgments about her person.
The Public Advocate was appointed as CJC's guardian on 15 January 2024 with functions which included to determine where and with whom she should live, her overseas travel and the circumstances of that travel.
The decision that CJC could travel to Germany was in fact made by the Public Advocate on condition that she return by 15 June 2024 for the hearing and this condition has not been met. J's correspondence to the guardian seeking approval to travel confirms the intention to return for the final hearing.
It seems likely that CJC travelled on her Australia passport. According to J's recent written submission CJC is on a 90-day visa in Germany and the outcome of the visa application is not certain.

In the final hearing I indicated that I considered that the Tribunal has jurisdiction to make orders for CJC for two primary reasons. The first related to the question of CJC domicile and whether it had changed and the second related to CJC's estate.
There is no definition of estate in the GA Act. It has been held that 'a reference to a person's estate is a reference to the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs'.[65]
[65] SAL and JGL[2016]WASAT 63 (Judge Parry DP, Dr B De Villiers M and Ms D Quinlan M) at [22].
At a minimum, CJC has an estate in Western Australia and s 67 of the GA Act makes clear the jurisdiction of the Tribunal to make an administration order for a person who is neither resident or domiciled in Western Australia though limited to the estate in Western Australia.[66]
[66] GA Act, s 67, NCK.
The transfer of CJC's bank account and the proceeds of sale of CJC's three properties to J's bank account and thereafter to Bitcoin held in a digital wallet by J, might be a breach of J's statutory and fiduciary obligations as CJC's attorney and if that was found to be the case,[67] this potentially would give rise to a cause of action against J as the defalcating attorney and that cause of action would arise in Western Australia.
[67] The jurisdiction to make such a finding is not part of the Tribunal's jurisdiction.
There are of course other elements to CJC's estate which have a nexus with Australia and Western Australia including the funds recovered and held by the Public Trustee for CJC's benefit and other assets and potential assets which may be identified following the completion of the enquiries by the Public Trustee such as shareholdings.
The reports of the trust manager and the solicitor for the Public Trustee set out the known extent of CJC's estate in some detail. In addition although denied by J,[68] CJC has as reported by the Public Trustee potential capital gains tax liabilities arising from the sale of her two investment properties the redemption of an investment and the purchase of Bitcoin and its reported increase in value.[69]
[68] J's response to the Public Trustee email 19 June 2024.
[69] Report of the solicitor for the Public Trustee dated 21 June 2024.
I am satisfied that the Tribunal has jurisdiction to review and make orders for CJC.
Turning now to the substantive issues:

Is CJC a person for whom orders can be made

As can be seen from the principles of the GA Act the starting position, on an application for the appointment of a guardian or administrator or on review of those orders, is that the person concerned is presumed to have capacity to make reasonable judgments about their person, their estate and to manage their own affairs.

The presumption of capacity, can only be displaced by clear and cogent evidence of incapacity leading to an actual persuasion that the person in respect of whom the proceeding is brought is a person for whom a guardianship order can be made (under s 43(1) of the GA Act) or for whom an administration order can be made (under s 64(1) of the GA Act).[70]
[70] GC and PC [2014] WASAT 10; (2014) 85 SR (WA) 23 at [36].
To appoint, or in this case, reappoint a guardian for CJC I must be satisfied pursuant to s 43 of the GA Act that she:
…
(a)has attained the age of 18 years;
(b)is -
(i)incapable of looking after her own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to her person; or
(iii)in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(c)is in need of a guardian.
To appoint an administrator of CJC's estate pursuant to s 64 of the GA Act I must be satisfied that CJC 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)is in need of an administrator of her estate.

Capacity evidence

Dr D, a general practitioner, in a letter dated 6 December 2023 when referring CJC to a neurologist, Dr W, notes 'recent worsening of the ability to comprehend anything/mixed answers, seems confused on different occasions/all friends brought up the concern. His referral goes on to say CJC's mini mental state examination (MMSE) shows moderate cognitive loss. [71]
[71] In her statement submitted for the resumed hearing, J advised that the appointment made for C to see the neurologist was not kept as they were running 10 minutes late and the office was closed. No mention was made of J seeking a further appointment or follow up with the neurologist's rooms.
Dr D's medical guide produced to the Tribunal dated 26 March 2024 states he has seen CJC 13 times in the previous 12 months accompanied by her daughter. (J states in her submissions that she accompanied CJC to at least five appointments with Dr D).
Dr D reports CJC has moderate cognitive loss and gives the opinion that her condition is a progressive one and that CJC is incapable in all spheres of decision making, including to now give an EPA and EPG or make an Advanced Health Directive.
Dr H, a general practitioner reports she has seen CJC twice. In a medical guide dated 18 March 2024 reports CJC had a MMSE score of 24 [out of 30] on 11 February 2023. This is described as a screening test only. Dr H reports that CJC has a mental disability [which] is 'still being worked up'. Dr H reports the mental disability is a progressive condition and notes referral to specialist physician geriatrician Dr K for further assessment. Dr H reports differential diagnoses of non-fluent variant of primary progressive aphasia and semantic frontotemporal dementia. Dr H says she is unsure of CJC's capacity in all spheres of decision-making.
Dr K, Specialist Physician and Geriatrician in a letter dated 11 April 2023 to Dr H, reports he assessed CJC accompanied by her brother and reported 'her son [sic] mentioned her friends noted a marked change in [CJC's] cognition and conversation ability consistent with an emerging dementia syndrome'. Dr K then reports 'Objectively, on the Addenbrooke's Cognitive Examination, she had deficits in multiple areas.' Dr K then sets out the findings across the various tests and concludes; [CJC's] Addenbrooke's Cognitive Examination score was 57/100, which is significantly impaired compared to expected norms'.[72]
[72] The cut off score, so called, for an Addenbrooke's Cognitive Examination is understood to be 82 below which a score indicates a likely dementia.
Dr K in a letter addressed to the Tribunal dated 7 February 2024 reports he reviewed CJC in the company of her daughter [J] and son‑in‑law [A] on 7 February 2024 and notes : … Dr K confirms that CJC has an established diagnosis of frontotemporal dementia and primary progressive aphasia'.[73]
[73] The report of the guardian dated 18 June 2024 refers to the diagnosis of Primary Progressive Aphasia as a more likely diagnosis than semantic frontaltemporal dementia made in April 2023, but this is inconsistent with Dr K's report to the Tribunal in February 2024 which reports both diagnoses.
Dr K notes an arrangement made for CJC to move to Germany permanently. He says:
her daughter J and son-in-law indicated they would be happy and able to meet her care needs. They described supporting her regularly via online Zoom prior to visiting Perth, taking her to see the speech therapist whilst here and being actively involved in her care for the last 18 months. Information indicates [CJC] is agreeable to this proposal and that she wishes to move to Germany with her sister [sic].
Dr K reports that he explained the test for capacity which he said requires CJC to be able to:
describe the decision being made, the implications and options for that decision and communicate this back to me. In this instance it involves the decision to move to Germany, understanding the implications of staying in Western Australia versus relocating internationally, the views of her family members as well as meeting her care needs. Finally, she would have to communicate this back to me[.]
Dr K then refers to the complication being CJC's 'primary progressive aphasia [which] has a severe functional impact on verbal communication'. Dr K refers to the speech pathologist's review and notes the findings that CJC's 'verbal communication is severely impacted'. He goes on to say '[CJC] is unable to elaborate verbally or in writing her decision-making capacity … [making] it very difficult if not impossible to assess whether she has capacity to make the decision'.
Dr K reports that when asked questions 'about the State Administrative Tribunal, the guardianship order [or] who her guardian was that [CJC] responded "I do not know" to most lines of questioning. This again may be related to her progressive aphasia'.
Dr K said he 'interviewed [CJC] for capacity assessment alone I asked her what her wishes would be and whether she wished to move to Germany using variations of simple questioning and she mentioned "Go Germany" [and] acknowledged she wants to live with [J]. However, she was unable to explain why this may be the case or the alternatives, again answering "I do not know" to anything more complicated than single words and to questions that may result in single word answers'. It is therefore difficult to ascertain that [CJC] is able to demonstrate capacity as she is unable to communicate her understanding of the decision. Nevertheless, this does not exclude the fact that she may indeed wish to relocate to Germany with [J].
CL, a speech pathologist (speech pathologist) in a report dated 21 January 2024 states she has met CJC and J on three occasions in November 2023 and in January 2024. The speech pathologist explains that:
Aphasia is a disorder of language. It occurs when the areas of the brain responsible for language are damaged. Aphasia can result in difficulty talking, finding words, understanding reading and writing. The most common cause of aphasia is stroke. Primary progressive aphasia (PPA) in contrast to aphasia caused by stroke results from a neurodegenerative disease. A person with PPA has gradual loss of language abilities. In the early stages of PPA physical and cognitive skills are generally spared. The latter stages of PPA ultimately lead to dementia, which results in overall cognitive decline, difficulty with memory, and impaired executive function.
CJC was diagnosed with PPA [non fluent variant] by [Dr K] in April 2023 this diagnosis was based on subjective and objective assessment alongside 'FDG PET scan results'. The speech pathologist notes [CJC's] communication difficulties began five years prior. The speech pathologist assessment indicated:
C struggles to clearly communicate her needs or wants in a verbal modality, as well as consistently understand what is said to her in spoken modality. She requires the assistance of a supportive communication partner to write keywords for her and provide written choices, to aid her in expressing her needs and wants.
CJC's communication presentation across three sessions was as follows:
(a)inconsistent verbal yes no response to spoken questions due to a combination of expressive and receptive language difficulty;
(b)inconsistent spoken single word to picture matching scoring less than 50%;
(c)improved comprehension of written word scoring 24 out of 25 written single word to picture matching task;
(d)limited spontaneous verbal output mostly restricted to Yes, No, I don't know, I don't think so, repetition of communication partners question;
(e)difficulty verbally naming items and objects from photographs total of 37/75;
(f)clear strength in understanding single written words; and
(g)when CJC's verbal responses do not match her written responses are to be taken as accurate over a verbal response.
The speech pathologist recommends visual cues to assist CJC's understanding. The example given is when offering tea or coffee to physically show the tea and coffee and to write down choices. The speech pathologist notes that using a communication application which was image based enabled CJC to express what she wanted to do once the session was completed and she selected coffee and cake. The speech pathologist recommends that communication partners 'keep information short, simple and to the point'.
The speech pathologist concludes: 'I do not have the assessment tools to clearly differentiate between [CJC's] language and cognitive functions, to confirm her capacity to make important decisions. The speech pathologist goes on to recommend highly specialised certified practising speech pathologist (CPSP) or neuropsychologist such as those working in the neurosciences unit as vital at this stage to confirm [CJC's] decision making capacity.
Despite this recommendation no further reports of specialist assessments were submitted to the Tribunal.
The senior investigator interviewed CJC on 30 January 2024 without family members present using prepared written questions.
Based on his experience the conclusion of the senior investigator, having detected no outward sign of cognitive impairment himself, submits that [CJC] retaines sufficient capacity for personal decision making. The conclusion of the interview of the guardian and the senior investigator was that CJC was able to consistently express a wish to go to Germany with J.
Video evidence was filed by J which it is submitted demonstrates CJC's capacity and her wishes. At the birthday celebration when asked to make a wish, CJC clearly said 'I'm going to Germany'. In respect of the submissions that the videos demonstrate CJC's capacity I cannot draw this from viewing the videos other than to confirm the speech pathologist's description of CJC's communication. The video dealing with the sale of the house CJC gives inconsistent responses in sequence: 'not sell' 'I don't know 'no sell' 'sell' when questioned. In respect of the clock drawing exercise again there were incorrect responses in two out of three recorded attempts with prompting off‑camera.
As identified in the speech pathologist's report CJC has experienced difficulties for the 5 years prior to the assessment. Concerns about CJC's functioning were reportedly identified by family members and friends in 2022. Some of these views are noted in the senior investigators report[74] including communication to J about the need for her return to Perth to assist her mother as 'she is not quite there'.[75] Later reported views of a family member expressed to the senior investigator was that CJC was 'sharp'.
[74] Report dated 4 April 2024.
[75] WhatsApp communication.
In an email dated 15 November 2022 to a speech pathologist seeking assessment and therapy for CJC, in addition to her word finding and communication impairment, J states CJC really needs help with 'attention and focus' 'comprehension of what people are saying' and 'problem solving'.[76]
[76] J's bundle of documents, JCN6.
In the same bundle from J, an email to CJC from a friend dated 29 September 2022 confirms CJC's acknowledgement of her deteriorating short-term memory. The friend advises CJC to see a doctor who 'can confirm if indeed you have dementia' and recommends CJC appoint someone she trusts regarding her property including property ownerships rental agreements bank accounts divorce papers wills.
In final submissions the senior investigator submits CJC has capacity in the spheres of personal decision-making based on a lack of clarity and definitive view expressed by the medical professionals involved. He contrasts this with his own assessment having interviewed CJC and that of the speech pathologist. The senior investigator submits due to CJC's Primary Progressive Aphasia (PPA) that one cannot be certain that CJC has not turned her mind to the relevant factors to be considered in relation to the move to Germany. The senior investigator concludes in the submission filed in April 2024 that there was insufficient evidence to rebut the presumption of capacity. In his final submission it is argued that CJC's right to autonomy of choice should be given great weight because she has given sufficient thought to her future needs and who should now navigate those needs on her behalf. He goes on to say that CJC has placed trust in J and there is nothing of substance to conclude that J would not act in her mother's best interests in personal welfare or health decision‑making.[77]

Is the presumption of capacity displaced

[77] Submission filed 25 June 2024.

All the medical reports refer to some cognitive impairment experienced by CJC. Dr D who has seen CJC 13 times opines that CJC is incapable in all spheres of decision-making both personal and financial. Dr L when asked to give an opinion regarding capacity is not sure. Dr K's report is focused on the question of CJC's choice to go to Germany and does not address CJC's capacity in other personal matters or in respect of financial or legal matters. The speech pathologist indicates that she does not have the assessment tools to make such an assessment.
In my view the medical evidence is not in conflict as to the diagnosis or the progressive nature of the condition suffered by CJC.
The cognitive assessments conducted over time[78] indicate a progressive cognitive impairment experienced by CJC which must be considered significant given her previous level of functioning. In his assessment regarding CJC's wishes, Dr K reports CJC's responses made to 'simple questioning' as limited to single words.
[78] MMSE although acknowledged as a screening tool only over time shows a deterioration (24/30 when reported by Dr H and 13/30 consultation notes of Dr RM 4 April 2024 the Addenbrooke's Examination of April 2023 a much more comprehensive and sensitive test indicates dementia level of cognitive impairment).
The speech pathologist reports aphasia with both expressive and receptive language difficulties experienced by CJC which results in difficulties talking, finding words and understanding. CJC demonstrates impairment in talking and word finding and I am satisfied it is more likely than not she is experiencing difficulty in understanding. The speech pathologist notes CJC's improved comprehension of written words and strength in understanding single words. However, her recommendation to keep communication with CJC 'short simple and to the point' indicates the significance of CJC's cognitive and communication impairment. Such a recommendation is not possible when the question or matter before CJC has any complexity, is nuanced or requires significant information to be conveyed to inform the decision to be made. J's own evidence given in the first hearing is that CJC would have difficulty managing complex decisions and needs assistance and 'can't take too much information'.[79]
[79] J explaining that this was why the EPA was done for [J] to manage her affairs ts 14, 15 January 2024.
For the 18 months prior to her arrival in late October 2023, J says she was in almost daily remote communication with CJC engaging in activities and prompting her regarding her diet, medications and household tasks. In later submissions filed after the orders were made, J says CJC is independent for these activities. In her submission regarding travel made to the guardian J asserts that CJC is dependent on her due to her communication disability and describes their relationship as mother and child with J being the mother.
While J asserts that CJC is not cognitively impaired and her disability relates only to her aphasia, I consider that J's earlier evidence and her conduct indicates that J understands that CJC is dependent on others for support in decision making.
Having regard to all of the evidence I am satisfied that the presumption that CJC is capable of making reasonable judgments about her person and her estate and managing her own affairs is displaced. In coming to a determination of this issue, which is the role of the Tribunal, I place weight on the opinion of Dr D given his contact with CJC over time. The opinion regarding capacity of a patient of a general practitioner can be accepted over that of a specialist having regard to the contact the particular doctor has had with the patient.[80]

No party proposes their appointment as guardian. J proposes that she act under the German EPA which is both a personal and a financial power. For the reasons I have given, I am not satisfied that the German EPA if it exists, represents a less restrictive alternative to the appointment of a guardian for CJC.
I am satisfied and I find there is no-one else who is suitable or willing to be appointed CJC's guardian[132] and therefore I appoint the Public Advocate as CJC's guardian.

Scope of orders

[132] See s 44(5) of the GA Act.

It is submitted by the solicitor for the Public Trustee that due to the complexities of CJC's estate that the Public Trustee should be appointed plenary administrator. I accept this submission and am satisfied given the extent and nature of the estate of CJC both in Western Australia and outside it that a plenary administration order is appropriate, necessary and in the best interests of CJC.
I am satisfied that a limited guardianship order with the functions in the existing order together with the addition of functions to make representations and enquiries on CJC's behalf in Germany to act as next friend and to release medical information to appropriate authorities are sufficient to meet the identified needs such that a plenary order is not necessary.

Length of orders

CJC has a progressive condition and will need substitute decision makers in the longer term. Counsel for the applicant seeks orders be made for a period not less than two years.
In light of the complexity of CJC's estate and the enquiries and investigations being conducted by the Public Trustee, a two-year order is appropriate.
Equally given the need for clarification of CJC's health and visa status and the potential need for enquiries to be made in Germany, a two‑year guardianship order is also appropriate so that these matters may be reviewed together.

Applications for intervention in the EPA and EPG

In respect of the applications pursuant to s 110N and s 109(1)(a) of the GA Act for intervention in the EPG and the EPAs made by CJC, I must determine whether the applicant has a proper interest[133] and then whether I should exercise the discretion to intervene as proposed.

EPAs

[133] GA Act, s 109(1) and s 110J.

In considering whether the applicant has established a proper interest Tribunal has previously held:
Given the supervisory role of the Tribunal in relation to EPAs, and the public interest in ensuring that attorneys under EPAs fulfil their obligations, it is likely that any person raising a genuine, reasonably based, allegation that an attorney has misappropriated funds or otherwise failed to comply with his/her obligations as an attorney, will have a 'proper interest' for the purposes of making an application under s 109(1)(a) or s 109(1)(b) of the GA Act[.][134]
[134] BFO & Ors and KPW [2014]WASAT68 at [28].
I am satisfied that C has a proper interest in the matter, because of three factors: being a daughter of CJC,[135] as the holder of a later inconsistent EPA and most importantly her application having brought to the attention of the Tribunal the circumstances of CJC in respect of the sale of her property under the 2022 EPA.[136]
[135] A family relationship has on its own not been found to to support a finding of a 'proper interest'. See for example BJB and GB [2008] WASAT 307 at [58].
[136] Factors of this kind were accepted to establish a 'proper interest' EW [2010] WASAT 91.
Having found C has a proper interest, I am satisfied that the orders proposed should be made. For the reasons given I do not consider the 2022 EPA has operated in the best interests of CJC and should be revoked.
I accept the submission of the senior investigator that neither the 2022 EPA nor the EPA executed on 7 February 2023 (in favour of C and M) provide less restrictive alternatives to the making of an administration order.
In respect of the EPA made in February 2023, C does not propose to act under the EPA made in 2023 and submissions made on her behalf seek the revocation of the EPA which appoints her in favour of the appointment of the Public Trustee as administrator of the estate. M has not appeared and other than responding to questions by the senior investigator has not participated in the process before the Tribunal.[137] However, M is the estranged spouse of CJC and serious allegations have been made against him regarding his conduct towards CJC, both historically during their marriage and since separation in 2019. Further it is said property settlement proceedings have been initiated by him and so he has a clear conflict between his interests and CJC's.
[137] It is said however that he is funding the applicant's legal costs.
Further I find that both EPAs should be revoked as they are inconsistent with the appointment of the Public Trustee as plenary administrator of the estate of CJC.[138]
[138] See GA Act, s 108.
In respect of the application pursuant to s 109(1)(a) of the GA Act for the filing of accounts by J, although orders have previously been made pursuant to s 109 (1)(a) of the GA Act at the request of the Public Trustee, I am satisfied that a further order should be made.
This is so as there is sufficient material before me, including on J's own evidence to justify an enquiry into the operation of the 2022 EPA.[139] J clearly has undertaken transactions using the 2022 EPA and has access to records.[140]
[139] GA and EA and GS [2013] WASAT 175 at [25] - [27] citing EW [2010] WASAT 91.
[140] See BFO supra at [31].
In addition, I accept the submission of Counsel for C that despite the suspension of the EPA in orders made on 15 January 2024, that J may have continued to present herself as acting under that power and therefore will make the order for the filing of the records and accounts from the execution of the 2022 EPA to the date of these orders.

EPG

The 2023 EPG is styled so that J is appointed as CJC's sole enduring guardian and in substitution on J's death, C is appointed. An EPG is in effect only when the appointor is unable to make reasonable judgments about her person.[141] Because I am satisfied that CJC has lost capacity the 2023 EPG is in effect.
[141] GA Act, s 110F.
I am satisfied that the Public Advcoate, being the statutory officer with functions under the GA Act including to investigate whether a person is under inappropriate guardianship[142] and her representative, being the senior investigator have a proper interest to make an application under s 110N of the GA Act.
[142] See s 97(1)(c) of the GA Act.
In respect of whether I should exercise my discretion to intervene in the 2023 EPG to revoke it. I am satisfied that I should do so in the best interests of CJC.
I am satisfied that CJC was likely not of full legal capacity in November 2023 when granting the EPG and so its execution is not compliant with the GA Act to create a valid EPG.[143]
[143] See s 110 of the GA Act.
Even if I am not correct as to CJC's lack of full capacity to execute the EPG, I am satisfied that CJC is in need of an independent guardian for the reasons given and the 2023 EPG is inconsistent with the continued appointment of the Public Advocate as CJC's guardian and should be revoked.

Application by J for access to documents

Over the course of the proceedings, orders[144] have been made granting access pursuant to s 112(4) of the GA Act to copies of documents to solicitors then acting for J.
[144] 16 January 2024, 23 January 2024 and 2 February 2024.
J made a further application for access to documents specifically to the report of the Public Trustee on 25 June 2024.
Access was granted to inspect the documents at the Tribunal's premises however in practical terms as J is in Germany she has not inspected them. The application for copies of the documents was refused other than to a solicitor acting for J on the record in Western Australia.
The reason of that refusal is that I do not consider it in the best interests of CJC that documents be made available to J without there being control over the use of that material as would be provided on the usual undertakings given by a solicitor on the record.
The decision is consistent with the established protocols dealing with access to material filed with the Tribunal in GA Act proceedings due to the sensitive nature of the material filed and the need make decisions in the best interest of CJC as the primary concern of the Tribunal.[145] That is the case even where it may compromise the needs or interests of other parties to a proceeding.
[145] See CD [2020] WASAT 41 at [32] - [41].
I am satisfied that J has had legal advice about her position both here in Western Australia and in Germany and could be represented as in the past. J and A refer to legal advice from a German solicitor not to provide a copy of the German EPA to the Tribunal so it is clear they have access to advice. Their lawyer in Germany could brief a solicitor in Perth to access further documents.
For the reasons given I make the following orders.

Orders

GAA 205 of 2024
The Tribunal declares that the represented person, [CJC] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.

Administration

1.The order made on 12 January 2024 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
2.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).
3.The enduring power of attorney dated 7 February 2024 by which the represented person appointed [M] and [C] to be her attorney, is revoked.
4.The enduring power of attorney dated 25 November 2022 by which the represented person appointed [J], to be her attorney, is revoked.
5.The administration order is to be reviewed by 29 July 2026.

GAA 240 of 2024
The Tribunal declares that the represented person, [CJC], is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.

Guardianship
The guardianship order dated 12 January 2024 is amended so that it now reads:
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)to determine the services to which the represented person should have access;
(f)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person, including any proceedings dealing with adult guardianship of the represented person;
(g)to decide whether the represented person is to travel interstate or overseas; and
(h)to decide the terms and conditions for which the represented person's travel.

2.The Public Advocate is authorised in exercise of these functions or in related matters or when making any representations or enquiries to government departments or health or welfare agencies or other organisations or courts either in Western Australia, Australia or Germany to provide medical or other information and documents held by her office as she considers necessary to the third parties to advance the best interests of the represented person.
3.The Public Advocate is authorised to provide any medical or allied health professionals reports to any medical or other health professional providing services to the represented person.
4.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.
5.The guardianship order is to be reviewed by 29 July 2026.

GAA 264 of 2024
On the application pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA), lodged by the applicant on 12 January 2024, for intervention in an enduring power of attorney dated 25 November 2022 by which [CJC], appointed [J] her attorney, determined by Member F Child on 29 July 2024.
The Tribunal orders:
1.Pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA), [J] (the attorney) must within 30 days of this order file with the Tribunal and serve on the applicant and the Public Trustee of Western Australia a copy of all records and accounts kept by the attorney of dealings and transactions made by her in connection with the power from 25 November 2022 to the date of this order.
2.The records ordered to be produced must be filed in an indexed and paginated bundle in chronological or other logical order.

GAA 265 of 2024
The Tribunal orders:
1.The enduring power of guardianship dated 3 November 2023 by which the represented person appointed [J], to be her enduring guardian, is revoked.

GAA 1802 of 2024
The Tribunal orders:
1.The application for leave to apply for review of the guardianship order is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
31 JULY 2024