CS and JS
[2014] WASAT 173
•18 DECEMBER 2014
CS and JS [2014] WASAT 173
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 173 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1065/2014 | 1 JULY AND 12 SEPTEMBER 2014 | |
| Coram: | MS F CHILD (MEMBER) | 18/12/14 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Public Trustee appointed administrator | ||
| B | |||
| PDF Version |
| Parties: | CS JS |
Catchwords: | Guardianship and administration Application for the appointment of administrator Diagnosis of dementia Existing enduring power of attorney Presumption of capacity Allegations of incapacity at time of execution of enduring power of attorney and misconduct on the part of the attorneys Need for administration order Appointment of Public Trustee Enduring power of attorney not revoked |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(4), s 4(7), s 9, s 16(4), s 64, s 64(1)(a), s 64(1)(b, s 104, s 107, s 108(1), s 108(2)(b), s 108(1)(b), s 109, s 109(1)(c), s 110K(1), s 112(4) State Administrative Tribunal Act 2004 (WA), s 9, s 39, s 87(1) |
Case References: | GC and PC [2014] WASAT 10 Guthrie v Spence [2009] NSWCA 369 LC and JS [2007] WASAT 127 S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 |
Summary | Following an application by one of the represented person's adult children (her son, JS), the Tribunal appointed the Public Trustee as the administrator of her estate. The represented person, is a recently widowed, elderly woman with a diagnosis of dementia.,Although the represented person had an enduring power of attorney under which two of her other children could manage her affairs as attorneys, JS; challenged his mother's capacity to give the enduring power of attorney at the time it was executed. Later in the proceedings, JS also alleged that his sister and brother had acted inappropriately as attorneys.,The represented person was reported to be distressed by the proceedings before the Tribunal and by the escalating conflict between JS and her other children.,The Tribunal was satisfied that the represented person lacked capacity to manage her own financial affairs and that it was in her best interests that the proceedings before the Tribunal be brought to an end.,The attorneys undertook not to act under on the enduring power of attorney during the period of appointment of the Public Trustee. The Tribunal did not revoke the enduring power of attorney executed by the represented person as it was not satisfied that the presumption that she was capable of executing the enduring power of attorney in 2013 had been displaced. However, given the conflict between her children and the serious allegations made by JS regarding the conduct of the attorneys, the Tribunal determined that the represented person was in need of an administrator of her estate, at least in the short term. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : CS and JS [2014] WASAT 173 MEMBER : MS F CHILD (MEMBER) HEARD : 1 JULY AND 12 SEPTEMBER 2014 DELIVERED : 18 DECEMBER 2014 FILE NO/S : GAA 1065 of 2014
- GAA 1626 of 2014
- Represented Person
AND
JS
Applicant
Catchwords:
Guardianship and administration Application for the appointment of administrator Diagnosis of dementia Existing enduring power of attorney Presumption of capacity Allegations of incapacity at time of execution of enduring power of attorney and misconduct on the part of the attorneys Need for administration order Appointment of Public Trustee Enduring power of attorney not revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(4), s 4(7), s 9, s 16(4), s 64, s 64(1)(a), s 64(1)(b, s 104, s 107, s 108(1), s 108(2)(b), s 108(1)(b), s 109, s 109(1)(c), s 110K(1), s 112(4)
State Administrative Tribunal Act 2004 (WA), s 9, s 39, s 87(1)
Result:
Public Trustee appointed administrator
Summary of Tribunal's decision:
Following an application by one of the represented person's adult children (her son, JS), the Tribunal appointed the Public Trustee as the administrator of her estate. The represented person, is a recently widowed, elderly woman with a diagnosis of dementia.
Although the represented person had an enduring power of attorney under which two of her other children could manage her affairs as attorneys, JS; challenged his mother's capacity to give the enduring power of attorney at the time it was executed. Later in the proceedings, JS also alleged that his sister and brother had acted inappropriately as attorneys.
The represented person was reported to be distressed by the proceedings before the Tribunal and by the escalating conflict between JS and her other children.
The Tribunal was satisfied that the represented person lacked capacity to manage her own financial affairs and that it was in her best interests that the proceedings before the Tribunal be brought to an end.
The attorneys undertook not to act under on the enduring power of attorney during the period of appointment of the Public Trustee. The Tribunal did not revoke the enduring power of attorney executed by the represented person as it was not satisfied that the presumption that she was capable of executing the enduring power of attorney in 2013 had been displaced. However, given the conflict between her children and the serious allegations made by JS regarding the conduct of the attorneys, the Tribunal determined that the represented person was in need of an administrator of her estate, at least in the short term.
Category: B
Representation:
Counsel:
Represented Person : In person
Applicant : Mr J Eastoe
Solicitors:
Represented Person : N/A
Applicant : Jonathan Eastoe, Solicitor
Case(s) referred to in decision(s):
GC and PC [2014] WASAT 10
Guthrie v Spence [2009] NSWCA 369
LC and JS [2007] WASAT 127
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
Introduction
Application before the Tribunal
1 JS (applicant) filed an application seeking his appointment as administrator of the estate of his mother, CS (represented person) on 12 March 2014.
2 The applicant said that the represented person suffers from dementia and has done so for several years. The applicant said his solicitor wrote to his brother and sister seeking information about his mother's affairs, including an enduring power of attorney (EPA) and an enduring power of guardianship (EPG) he believed had been executed by his mother, but about which he had not received any information. A copy of the letter written by the applicant's solicitor is before the Tribunal.
3 (As the applicant and his brother share the same initials, the applicant's brother is referred to as IS in these reasons).
4 The applicant sought an urgent hearing of his application because he said he believed his brother and sister were acting under the EPA which he believed to be invalid, because his mother lacked capacity at the time of its execution. Further, the applicant said his father, AS, was dying of cancer and had a life expectancy of less than two months.
5 Orders were made listing the application for the appointment of an administrator for hearing and referring the application to the Public Advocate for investigation and for the filing of the EPA and a statement of assets and liabilities of the donor of the EPA.
6 A copy of an EPA is before the Tribunal. The document is dated 12 September 2013 by which the represented person appointed her spouse, AS, and her daughter, LE, as joint and several attorneys. The document provides that the represented person's other son, IS, is appointed as the substitute attorney for either LE or AS in the event of 'sickness, absent (sic) [or ] death'. The EPA is witnessed by a pharmacist and another person and, on its face, complies with the formality provisions set out in s 104 of the Guardianship and Administration Act 1990 (WA) (GA Act).
7 An EPG appointing LE as enduring guardian and IS as substitute guardian dated 18 February 2014 is also before the Tribunal.
8 The hearing was listed on 7 May 2014 but was vacated due to the death of AS, on 3 May 2014. It was relisted on 1 July 2014.
The legislative framework
9 At the first hearing, the Tribunal explained to the parties the relevant legislative framework of the GA Act under which the application is brought and the matters about which the Tribunal must be satisfied before any administration order is made.
10 Pursuant to s 64 of the GA Act, in order to appoint an administrator of an estate of a person, the Tribunal must be satisfied pursuant to s 64(1)(a) of the GA Act that that person is unable, by reason of a mental disability, of making reasonable judgments in matters relating to any or all of her estate, and that pursuant to s 64(1)(b) of the GA Act, she is in need of an administrator of her estate.
11 These provisions are subject to principles set out in s 4 of the GA Act, which relevantly provide that the primary obligation of the Tribunal is to act in the best interests of a person for whom applications have been made, that persons must be presumed to be capable of making reasonable judgments about their persons and about their estates, and that if less restrictive alternatives to the making of orders are available orders should not be made. Further, the principles require that the Tribunal must, as far as possible, ascertain the wishes of the person concerned as expressed or as gathered from that person's previous actions. These principles must be observed by the Tribunal in all proceedings brought under the GA Act.
12 Section 107 of the GA Act sets out the obligations of donees of EPAs, which include the obligation to act with reasonable diligence to protect the interests of the donor, and the obligation to maintain records.
13 Section 108(1) of the GA Act provides that the Tribunal may revoke or vary an EPA where it makes an administration order. Pursuant to s 108(1)(a) of the GA Act, where the continued operation of an EPA would be inconsistent with the functions of an administrator, the Tribunal must revoke the EPA. Pursuant to s 108(2)(b) of the GA Act, an appointed administrator has the same power to revoke an EPA as the donor would have, if she were of full legal capacity.
14 Section 109 of the GA Act gives the Tribunal specific jurisdiction in relation to EPAs on the application of a person with a proper interest.
First hearing
15 At the hearing, the applicant, who was legally represented, contended that the EPA executed by the represented person is invalid, as the represented person was not capable of executing it when it was made in September 2013. No other matters were advanced as to the need for an administrator of the estate, or the suitability of LE, the attorney, or IS, the substitute attorney, to operate under the EPA.
16 The hearing of the application was adjourned for further investigation by the Public Advocate and to report to the Tribunal on the question of whether the represented person was capable of executing an EPA at the time of its execution and whether the EPA represented an appropriate vehicle for the management of the represented person's financial affairs.
17 On the application of the applicant, orders were made for the production of medical records of the represented person and further orders as to the attendance of witnesses and for proposed draft orders to be filed.
Submissions
18 The applicant's solicitor filed proposed orders and submissions in support of those orders with the Tribunal on 26 August 2014. The orders sought were:
Order 1:
... the applicant be appointed as plenary administrator. …
Reasons
[The represented person] was diagnosed with Alzheimer's by Drs [K] and [C] on 27 November 2012, that is nearly two years ago. Prior to that, on 11 February 2011 she scored significantly below the cut off scores on tests conducted by Dr [S] (MMSE 18/25 cut off 22/30 and RUDAS 15/30 cut off 22/30[)].
Given that Alzheimer's is a progressive disease the proper inference to be drawn is that the evidence indicates that it is more likely than not that [the represented person] currently suffers from Alzheimer's disease and is not capable of managing her estate.
Order 2:
Pursuant to s 109(1)(c) of the Act that the Enduring Power of Attorney purportedly granted by the represented person to AS and LE (as joint and several attorneys) and JS (as substitute attorney on 12 September 2013) be revoked.
Note Section 109(1)(c) [of the Act] empowers the Tribunal to make this Order on the application by someone who has a proper interest in the matter I think we will need to either amend our application or make a second application and have the 2 heard together.
Reasons
The evidence establishes that [the represented person] had Alzheimer's disease almost 12 months before she purported to grant an Enduring Power of Attorney to her husband (now deceased) and daughter as joint and several attorneys with JS (as substitute). That document is invalid by virtue of Section 104 of the Act because [the represented person] lacked full legal capacity at the time. Notwithstanding its invalidity it is appropriate that a formal revocation order be made.
Order 3
See the decision of the Tribunal under the heading Costs.
19 An application pursuant to s 109(1)(c) of the GA Act was not filed with the Tribunal.
20 LE also filed submissions referring to a lack of support shown to their parents by the applicant and referring to the wishes of the represented person that LE manage her financial affairs with IS as a 'back up' if something happened to her. She said she was willing to provide her siblings with a statement of accounts every three months during the lifetime of the represented person.
Second hearing
21 At the reconvened hearing on 12 September 2014, the solicitor for the applicant said that in addition to the challenge to its validity, the applicant now said that the EPA was challenged because of a 'serious allegation of impropriety on the part of LE and [IS]' (T:7; 12.09.14).
22 The solicitor for the applicant said that AS, the late husband of the represented person who died in May 2014 (after commencement of the proceedings before the Tribunal), had kept a large amount of cash in his shed at his and the represented person's home. It was said that the applicant had seen the cash as recently as February 2014 but that it was no longer there when he had visited his mother's property a week before the hearing. The apparent inference being asked to be made is that cash had been removed by the attorneys and not reported by them in material provided to the Public Advocate.
23 In the course of the hearing, the represented person said through an interpreter that 'there was money in the shed but it was not there now' (T:13; 12.09.14). However, the Public Advocate's investigator reported that when questioned about this privately at her home on 12 August 2014 in the weeks before the hearing, the represented person had denied that there had been any cash in the shed. LE said that she was not aware of any cash held in the shed.(T:16; 12.09.14).
24 There was no reference to this serious allegation in the material filed with the Tribunal on 26 August 2014 prior to the reconvened hearing. When asked about this, the solicitor for the applicant said the materials filed were not submissions (T:9; 12.09.14). When asked about the lack of notice of the intent to make a serious allegation, the solicitor for the applicant said that both the siblings of the applicant and the Public Advocate had had notice of the allegation prior to the hearing. It is accepted that this had occurred but, in the view of the Tribunal, this was not sufficient notice in the circumstances.
25 The solicitor for the applicant proposed that the spouse of IS give some evidence to the Tribunal but a summons had not been served on her. The solicitor for the applicant proposed that the application be adjourned again for the filing of witness statements and for cross-examination of witnesses.
26 In opposition to an adjournment, LE said that proceedings before the Tribunal had had a negative effect on the represented person. She said that the applicant had attended the represented person's property and had been aggressive and threatening towards LE, which had upset the represented person. LE said that their mother had taken some time to reassure and had been visibly distressed. LE said she wanted the proceedings to come to an end and supported the appointment of the Public Trustee as administrator.
27 The matter was stood down for a short time to enable LE to discuss this proposal with IS and the Public Advocate's investigator.
28 After the brief adjournment, LE changed her position and proposed that the attorneys continue to operate under the EPA, as the Public Advocate's investigator had explained to her that the appointment of the Public Trustee would, in line with the normal practice of the Tribunal, likely lead to the revocation of the EPA as inconsistent with the appointment of the Public Trustee as administrator: see s 108(1) of the GA Act.
The 'validity' of the EPA
29 In contrast to the provisions regarding an EPG (see s 110K(1) of the GA Act), the Tribunal has no power under the GA Act to declare the validity or invalidity of an EPA.
Is the represented person a person for whom an administrator may be appointed?
30 The material before the Tribunal in relation to the capacity of the represented person includes a report dated 15 April 2014 from Dr GD, the represented person's general practitioner, who reports he has known her for three years. Dr GD provides a diagnosis of 'probable Alzheimer's first recognised in 2010'. He describes the condition as a 'progressive' one. He says he is 'not sure' in relation to the capacity of the represented person to make reasonable judgments about her estate or to execute an EPA.
31 A report of Dr KK, consultant physician, of the [name deleted] hospital dated 15 February 2013addressed to Dr AM, (a general practitioner from the same practice as Dr GD), refers to a review of the represented person in February 2013 and notes a 'deteriorating cognitive impairment', and that her decline over time was consistent with 'probable Alzheimer's disease'. A Mini Mental State Examination (MMSE) score of 9/30 as at November 2012 is reported. The score is noted to be limited by the represented person's lack of English.
32 A further bundle of documents received by the Tribunal following orders to produce to Dr AM includes correspondence from the same hospital unit as Dr KK from 2011 which refers to 'mild cognitive impairment' and that the represented person was 'maintaining good function at home and occasional forgetfulness'.
33 The Tribunal accepts the medical evidence that the represented person has a diagnosis of 'probable Alzheimer's disease' and has dementia. Dementia is a mental disability as defined in s 3 of the GA Act.
34 There must be a causal link between a person's mental disability and inability to make reasonable judgments about her estate to ground an administration order. The represented person has reportedly never managed her own financial affairs; while her husband was alive he made the financial decisions, and since his death it is reported that she has been reliant on LE and IS.
35 The Public Advocate's investigator interviewed the represented person with the assistance of an interpreter. Based on the interview, the investigator submits that more complex matters were beyond the represented person. In a detailed report submitted by the Public Advocate for the first hearing, reference is made to the represented person being dependent on her children for activities of daily living. It is reported that she suffers significant memory impairments and needs support for prompts with her medication. This is in contrast to her earlier independence with these activities.
36 The submission of the applicant is that it is more likely than not that the represented person is unable to make reasonable judgments about her estate because of her dementia. This is not challenged by the Public Advocate or the other children of the represented person.
37 The Tribunal is satisfied that the presumption of capacity is rebutted and the represented person is a person for whom an administration order may be made, and the Tribunal finds that it is more likely than not that she is unable now, by reason of her dementia, to make reasonable judgments about all of her estate.
Is the represented person in need of an administrator of her estate?
38 Turning to s 64(1)(b) of the GA Act, the Tribunal must consider whether there is a need for the appointment of an administrator of the represented person's estate. Consistent with the principles in s 4 of the GA Act, even where a person is found to be a person for whom an order may be made, there must be a need for an order and the person's needs must not be able to be met by less restrictive means: s 4(4) of the GA Act.
39 An EPA can be a less restrictive alternative to the making of an administration order where a person is found to be a person for whom such an order may be made. An EPA may also reflect the previous wishes of the person as to how their affairs are to be managed: s 4(7) of the GA Act. Accordingly, if an EPA executed by a person is an appropriate vehicle for the management of their affairs, consistent with the principles in the GA Act, the EPA should be maintained.
40 The applicant contended that because the represented person has, and had in 2010, a diagnosis of probable Alzheimer's disease, at the time of the execution of the EPA in September 2013 she did not have full legal capacity. The Tribunal does not accept that this is necessarily the case. The test for capacity as it is understood to apply to an EPA is summarised as follows:
'Under the general law there is no single test for capacity to perform legally valid acts – rather, capacity is decided, in relation to each particular piece of business transacted, by reference to whether the person has sufficient mental ability "to be capable of understanding the general nature of what he is doing by his participation", and concerning any legal instrument "is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained": Gibbons v Wright[1954] HCA 17; (1954) 91 CLR 423 at 437–8 per Dixon CJ, Kitto and Taylor JJ.
- Guthrie v Spence[2009] NSWCA 369 at [174].
42 The material before the Tribunal relevant to this issue includes the letter of Dr KK dated 15 February 2013 to the general practitioner reporting that the represented person's capacity to execute an EPA had been considered by him. The represented person was reported to be 'much improved on clinical interview'. In particular, the letter stated':
She is very much better. More alert and positive, we discussed an [EPA]. Family have always managed her financial affairs. On explanation today [the represented person] was able to inform me she is very happy for her daughter and husband to jointly manage her money. She knows that they have always done so. She is aware the assets include house and car and she banks with Bankwest. There is no potential conflict within the family and 'after explanation [the represented person] today appeared to have a satisfactory understanding of the nature and implications of appointing her daughter and husband jointly as powers of attorney'.
43 At the first hearing, the report of Dr KK was considered in some detail and oral submissions were made by the applicant's solicitor regarding the report. The applicant was alerted to the need to call Dr KK to be questioned about his report by the Tribunal (T:22; 01.07.14) since this was the only medical evidence directly on this point which was relatively close in time to the execution of the EPA. The solicitor for the applicant instead sought an order to obtain further medical records from the represented person's general practitioner and records from the hospital where the represented person had attended in either 2005 or 2006 for major abdominal surgery. The applicant supported his request for these records by reference to a conversation he said he had with a nurse about his mother's mental state during that admission. He said he was asked if his mother suffered 'any mental illness like dementia'. He said that although his mother was nervous and unsettled during the admission, he thought she was 'fine' (T:12; 01.07.14). The Tribunal declined to order the production of the hospital records as it was not satisfied that the material which might be produced was relevant to the questions before the Tribunal, as the alleged question by the nurse had occurred some years before the relevant period and the represented person had been, at the time, hospitalised for major surgery. The more recent records were obtained and inspected by the applicant's solicitor.
44 Despite the identification of the matters which needed to be determined by the Tribunal at the first hearing, no professional witnesses were called by the applicant to give evidence at the final hearing. In particular, Dr KK was not called to be cross-examined in relation to his assessment and opinion. However, submissions were made on behalf of the applicant regarding what was said to be 'internal inconsistency' in the report of Dr KK. The inconsistency was said to be, on the one hand, that the doctor reported that the represented person had capacity to execute an EPA and, on the other, how the doctor had assessed this, as the represented person was unable to speak English. However, as the doctor had not been called to respond to the question or to give any other evidence, this issue could not be resolved.
45 In summary, the evidence regarding the represented person's capacity to execute an EPA is that of Dr KK who, in February 2013, recorded the opinion, after having reportedly assessed the represented person, that she was capable of executing an EPA. The other medical evidence directly on this point is the opinion contained in Dr GD's report, who says he is 'not sure' whether the represented person is currently capable of executing an EPA.
46 In GC and PC[2014] WASAT 10 at [36], the Full Tribunal held that 'clear and cogent evidence is required to rebut the presumption of capacity.'
47 In S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 at 105, Heenan J held that:
… it is necessary for the evidence to displace the statutory presumption of capacity contained in s 4(3) of the G & A Act. The necessity for the contrary to be proved to the satisfaction of the SAT (s 4(3)) does not diminish the standard of proof or permit some standard less than the Briginshaw standard to be adopted and applied.
48 The Tribunal noted at the first hearing that the EPA is, on its face, a regularly executed EPA. Despite this, there are aspects of the EPA which raise some doubt about the circumstances of its execution; for example, the apparent lack of translation or a 'read over clause', even though the represented person is said not to read or write in English, and the choice of non-medical witnesses in the circumstances. However, these matters were not raised by the applicant.
49 Further, the reported MMSE score of 9/30 indicates a significant impairment. On the other hand, the represented person's low MMSE score was qualified by the doctor as the represented person is not an English speaker.
50 The matters referred to above might raise a concern or even a suspicion about the capacity of the represented person to execute such a document but, in the face of the unambiguous statement by Dr KK some six months before the EPA was signed, together with the opinion of the current general practitioner in 2014, Dr GD, who has known the represented person for three years. When asked to give an opinion now on this point, Dr GD states that he is 'not sure' if she is capable. This evidence falls short of clear and cogent evidence, which actually persuades the Tribunal that the represented person was not capable, at the time, of executing the EPA. The Tribunal is not satisfied that the presumption of capacity of the represented person to execute the EPA in 2013 has been displaced.
51 The second consideration regarding the EPA is that, even if it complies with the formality requirements and was validly executed, the question must be asked: is it an appropriate vehicle for the management of the represented person's affairs or is she in need of an administrator of her estate because the attorneys have not acted with reasonable diligence to protect the interests of the donor as they are required to do pursuant to s 107 of the GA Act?
52 A serious allegation was made on behalf of the applicant at the final hearing regarding the disappearance of cash said to be held in a shed by the late husband of the represented person prior to his death at their jointly owned property. The inference upon which the Tribunal is asked to draw, is that the attorneys removed the cash, which, if true, goes to the question of their fitness to continue in their roles. This matter could not be examined appropriately in the hearing. The matter had been listed for two hours only and the allegation was first made known to the Tribunal after the commencement of that hearing. There was no specific reference to this allegation in the first hearing, or in correspondence sent to the Tribunal or in the proposed orders and submissions filed by the solicitor for the applicant two weeks before the hearing.
53 In respect of the question of whether the second limb of s 64 of the GA Act is made out on the material before the Tribunal, it is acknowledged that the EPA, on its face, provides a vehicle for the management of the represented person's estate and the attorneys wish to continue in the roles. The need to bring the present proceeding to a conclusion in the represented person's best interests, did not allow for the allegation of impropriety made against the attorneys to be properly ventilated. They did have not sufficient notice or an opportunity to answer the allegation made. However, given the impact of the proceedings before the Tribunal on the represented person, who has been recently widowed, and the escalating conflict between her children as reported by LE, there is a need to bring those current proceedings to an end. In making the order appointing the Public Trustee as administrator, the Tribunal makes no findings regarding that allegation.
54 Because it is clear that the represented person cannot now protect her interests and is dependent on others, if the attorneys have not met their duty to protect her interests, as alleged by the applicant, the represented person will be in continuing need of an administrator of her estate.
55 There is a need for the appointment of an administrator in the present circumstances and for an independent examination of the allegations made by the applicant, to the extent that such allegations can be investigated.
56 The Tribunal did not make the order sought by the applicant for revocation of the EPA, as it was not satisfied that the presumption that the represented person was capable of executing the EPA in 2013, had been displaced. However, given the conflict between the represented person's children, and the serious allegations made by the applicant regarding the conduct of the attorneys, the Tribunal determined that she was in need of an administrator of her estate, at least in the short term.
57 It is noted that the attorneys have given an undertaking not to act on the EPA while the Public Trustee is appointed as administrator. The Public Trustee has plenary authority and so any operation of the EPA would be inconsistent with the functions of the administrator.
58 The application will be brought on for review in six months' time to enable the Public Trustee to report on the extent of the estate of the represented person and in relation to the allegation made. It will be then for the Tribunal to determine whether, after a full examination of the allegation at a hearing, the evidence regarding the conduct of the attorneys is such that, even if the EPA were validly executed, it would be inappropriate for the Tribunal to allow the EPA to continue, and that the administration order should be confirmed and the EPA revoked.
Conclusion
59 The Tribunal, having considered the principles in the legislation and circumstances of the represented person, determined that it was in the best interests of the represented person that the proceeding be brought to an end and appointed the Public Trustee as administrator. However the Tribunal determined that the EPA should not be revoked.
60 As the appointed administrator, the Public Trustee was asked to investigate the management of the estate by the attorneys, including the allegation made about the disappearance of cash made at the final hearing, and to report the matter at the review of the order, which was set down for February 2015.
61 The question of whether the EPA is an appropriate vehicle for the ongoing management of the affairs of the represented person will be considered at the review.
Costs application
62 The applicant sought payment of his costs pursuant to s 16(4) of the GA Act. No submission was made in the written submission or at the hearing as to the quantum of costs. Rather, further orders were sought for the filing of a draft bill of costs and for service on the attorneys and for 'an appointment to assess costs'.
63 Pursuant to s 16(4) of the GA Act, the Tribunal can order that costs relative to the proceedings be paid from the estate of the represented person if satisfied that the applicant for costs has acted in the best interests of the represented person.
64 Although the applicant is entitled to legal representation pursuant to s 39 of the State Administrative Tribunal Act 2004 (WA), the Act provides at s 87(1) that the starting point is that parties bear their own costs.
65 Section 16(4) of the GA Act must be read with s 87(1) of the SAT Act. As noted in previous decisions of the Tribunal, the GA Act contained a similar provision until repealed when the guardianship and administration jurisdiction was brought into the Tribunal from 24 January 2005.
66 The applicant argues that legal representation was necessary because:
• LE and IS refused to provide information about the represented person's affairs to the applicant;
• there was an issue concerning the validity of the EPA, and that involved complexity of evidence and a significant the degree of conflict; and
• a layperson would not have been able to comply with orders of the Tribunal requiring the filing of draft orders.
67 The applicant submits that factors identified in LC and JS [2007] WASAT 127 (LC and JS) at [34] are relevant to the applicant's submission that his costs ought to be paid from the estate of the represented person.
68 LC and JSidentified the following as a non-exhaustive list of factors which might be taken into account by the Tribunal when deciding that a costs order may be warranted under s 16(4) of the GA Act:
• where it is unlikely that an application would have been made to the Tribunal and the proposed represented person benefit from the protection of an order, had not legal advice been sought by the applicant;
• where there are serious allegations that the proposed represented person is suffering from abuse, and legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner;
• where conflict between significant parties is of such magnitude that it is unlikely they could present a coherent case to the Tribunal in respect of the history and needs of the proposed represented person without legal assistance;
• where the application is of such complexity that legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner;
• where the application is contentious and unique, and
• where the application raises a special point of law.
69 As noted in previous decisions, the role played by the Tribunal in assisting parties in the preparation for the hearing and the gathering of evidence generally means that legal advice and assistance is not required in making an application under the GA Act. At the time the proceedings were commenced in the Tribunal, the spouse of the represented person, appointed as a joint and several attorney under the EPA, was alive, although reported to be ill, and the applicant was reportedly in personal contact with him regarding the affairs of the represented person, and he could have therefore obtained information from him.
70 The allegation made of serious impropriety in the conduct of the attorneys was made late in the proceeding, well after the application was filed and the applicant had already retained legal representation prior to this allegation being made.
71 Although the conflict between the parties was significant and apparently increased over the course of the proceedings, the level of conflict was not such that the parties were not able to express their views in the hearings before the Tribunal, which they all did. The applicant was the only party represented.
72 Costs applications in GA Act matters (and in other jurisdictions of the Tribunal) are considered within the context of the obligations of the Tribunal to act fairly and according to the substantial merits of the case, speedily and with as little formality as is practicable, and to minimise costs to the parties: (s 9 of the SAT Act).
73 In this case, the conduct of the proceedings before the Tribunal, and in particular, the lack of notice of the serious allegation made about the attorneys' conduct in the written submissions filed with the Tribunal two weeks before the hearing, meant that the process was an unsatisfactory one. Had not LE proposed the appointment of the Public Trustee as administrator, the matter would have had to be adjourned because of the need to accord procedural fairness to the attorneys. As the applicant was legally represented, it is unclear to the Tribunal why such a course was adopted. The September 2014 hearing would have effectively been 'thrown away' because of the decision taken by the applicant not to give notice of this serious allegation to the Tribunal in a timely way. Such an adjournment would have prolonged the proceeding, adding to the costs and to the burden of such a proceeding on all the parties involved. In addition, the failure to call Dr KK to question him on his report - which had been identified as central to the question of the capacity of the represented person to execute the EPA - at the same time that submissions were made as to its internal inconsistency did not assist the Tribunal.
74 The application for costs is dismissed.
Orders
75 The Tribunal makes the following orders:
The Tribunal declares that the represented person:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b) is in need of an administrator of her estate,
- and the Tribunal orders that:
1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2. The administrator is directed to examine the management of the estate of the represented person by the attorneys during the operation of the enduring power of attorney, including the allegation made on behalf of the applicant at the hearing on 12 September 2014 that cash previously held by the late spouse of the represented person in a shed at the property of the represented person has been misappropriated and report to the Tribunal as to the outcome of that investigation at the review of the order.
3. Pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) all documents filed with the Tribunal in this matter are to be provided to the Public Trustee.
4. This order is to be reviewed by 12 February 2015.
5. The application made pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) for the applicant's legal costs to be paid out of the estate of the represented person is refused.
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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