CW - [2022] WASAT 11 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   CW [2022] WASAT 11
MEMBER:   MS F CHILD, MEMBER
HEARD:   6 AUGUST 2021 AND 15 OCTOBER 2021
DELIVERED          :   10 FEBRUARY 2022
FILE NO/S:   GAA 2340 of 2021
GAA 2336 of 2021
GAA 2324 of 2021
GAA 2338 of 2021
GAA 2042 of 2021
CW
Proposed Represented Person

Catchwords:

Guardianship and administration - Applications for the appointment of guardian and administrator and for revocation of enduring power of guardianship and enduring power of attorney and for filing of records of transactions by attorneys - Proposed represented person with diagnosis of dementia - Family conflict - Whether enduring guardians and attorneys have a conflict of interest - No conflict established - Less restrictive alternative of existing enduring powers of attorney and guardianship to meet needs - No need for guardianship and administration orders - Whether applicants have a proper interest in bringing applications for intervention in enduring power of guardianship and enduring power of attorney

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(1)(b), s 43(1)(c), s 44, s 44(1)(b), s 48, s 49, s 50, s 51, s 51(2)(b), s 53(a), s 54, s 64(1), s 68, s 97(1)(b), s 97(1)(b)(i), s 104, s 104(1)(a), s 107, s 108, s 108(1a), s 109(1), s 109(1)(a), s 109(1)(c), s 110, s 110B, s 110E, s 110F, s 110H, s 110J, s 110K, s 110N, s 110N(b), s 110(1)(b)(i), s 110(1)(b)(ii), s 112(4), Sch 3, Pt 5, Div 3, Pt 9

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Proposed Represented Person

N/A

Solicitors:

Proposed Represented Person

N/A

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

AR [2021] WASAT 137
BFO & Ors and KPW [2014] WASAT 68
BJB and GB [2008] WASAT 307
GA and EA and GS [2013] WASAT 175
LFG and Public Trustee [2015] WASAT 71
MB [2004] WAGAB 25
PHQ and LPQ [2015] WASAT 5

REASONS FOR DECISION OF THE TRIBUNAL:

Background

These are the reasons for the decisions made on applications brought under the Guardianship and Administration Act 1990 (WA) (GA Act) seeking orders in respect of CW.
In all reported decisions of the Tribunal in GA Act matters any identifying information is removed to protect the privacy of CW.

Applications and the proceeding before the Tribunal

CW is an elderly man with a diagnosis of dementia. He is a widower and has four living daughters SP, LC, RR and PB and a son IW.
CW is described as a self-funded retiree, lives in his own home and owns another property in which his daughter, SP lives. CW is dependent on a combination of domestic support services from family and paid supports.
CW made enduring powers of attorney (EPA) and guardianship (EPG) on 8 October 2013 by which he appointed his daughters, RR and LC as his attorneys and enduring guardians (enduring guardians/attorneys).
The enduring guardians/attorneys made an application for directions which was dismissed following a directions hearing in May 2021. RR applied to the Tribunal in May 2021 seeking revocation of the EPG because of family conflict.[1] She later withdrew this application. Leave to withdraw was granted.
[1] GAA2042/2021 pursuant to s 110N , GA Act.
Applications were filed in May and June 2021 seeking orders in respect of CW by IW and IW's daughter K. The applications were later amended to include SP and her son AP as additional applicants (the applicants). In case management orders made in a directions hearing on 9 June 2021, the applications were confirmed as:[2]
1)An application for the appointment of a guardian and an administrator of the estate of CW.[3] In this application IW, K and SP are proposed for appointment as joint guardians and administrators or in the alternative that IW and K are appointed.
2)Applications for orders for the revocation of the EPA and EPG made by CW in 2013.[4]
3)An application for orders for the filing of records of transactions and accounts kept by the attorneys.[5]
[2] Orders dated 9 June 2021.
[3] GAA 2340/2021 pursuant to s 40, GA Act, after being filed the application was amended to include all the current applicants.
[4] GAA 2324 and 2338/2021 pursuant to s109(1)(c) and s110N, GA Act.
[5] GAA 2336/2021, s 109(1)(a), GA Act.
By the same orders, the applications were referred to the Office of the Public Advocate for investigation of a number of matters, including the need for the appointment of a guardian and administrator for CW and of his views and wishes. The attorneys were also ordered to file a statement of the assets and liabilities and current regular income and expenditure of CW.
All the applications were first heard on 6 August 2021. The hearing was attended by all the applicants (IW and K appearing by telephone from Queensland where they live) the enduring guardians/attorneys RR and LC (LC appearing by telephone) and PB. CW did not attend the hearing. The applicants were legally represented and written and oral submissions were made on their behalf. The investigator from the office of the Public Advocate (investigator) also attended and filed a report of the investigation and made oral submissions in the hearing.
Having heard from counsel for the applicants, from the parties and the investigator, the hearing was adjourned for the provision of a copy of the aged care assessment of CW and for a report from his general practitioner.
At the second hearing on 15 October 2021 the Tribunal heard further from the parties. At the conclusion of the hearing all the applications were dismissed.
The following comprises the reasons for the decisions made.

Legislation and principles to be observed

As noted, there are a number of applications before the Tribunal:
In respect of the application pursuant to s 110N of the GA Act the Tribunal may intervene to revoke or vary an EPG if satisfied that the applicants have a proper interest[6] in some circumstances.[7]
[6] Section 110J, GA Act.
[7] Section 110(1)(b)(i) and s 110(1)(b)(ii), GA Act.
In respect of the applications for revocation of the EPA[8] and for the filing of accounts[9] again the Tribunal must be satisfied that the applicants have a proper interest and the orders as proposed should be made.
[8] Section 109(1)(c) GA Act.
[9] Section 109(1)(a) GA Act.
To appoint an administrator of his estate the Tribunal must be satisfied that CW is unable by reason of a mental disability to make reasonable judgments about all or any part of his estate and that he is in need of an administrator of his estate.[10]
[10] Section 64(1), GA Act.
To appoint a guardian the Tribunal must be satisfied that CW is incapable of looking after his own health and safety, unable to make reasonable judgments about his person, or is in need of oversight care or control in the interests of his own health and safety and is in need of a guardian.[11]
[11] Section 43(1)(b) and s 43(1)(c), GA Act.
If satisfied that CW is a person for whom orders can and should be made, the Tribunal must then consider who should be appointed[12] and other matters such as the scope of the authority and the duration of the orders.
[12] Section 68 and s 44, GA Act.
All these provisions are subject to principles which the Tribunal must observe in all proceedings brought under the GA Act, set out in s 4 of the GA Act.
The principles provide that the primary concern of the Tribunal is the best interests of CW.[13]
[13] Section 4(2), GA Act.
The principles also provide that CW is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal.[14]
[14] Section 4(3), GA Act
The principles say that orders should not be made unless they are needed; if the needs of CW can be met by less restrictive means then orders should not be made for him.[15] If an order is made it should be in the least restrictive terms possible.[16]
[15] Section 4(4), GA Act.
[16] Section 4(6), GA Act.
Finally, the principles require that in considering any matter relating to CW, the Tribunal should seek to ascertain his wishes as expressed at the time or gathered from his previous actions.[17]

Evidence and material before the Tribunal

[17] Section 4(7), GA Act.

In the material filed and the evidence given various allegations are made about the conduct of the parties including in the role they have played in the care of CW. There are also allegations of inappropriate or intimidatory conduct by AP or by the enduring guardians at CW's home. Although, if true, much of what is alleged would be distressing to the parties, many of the disputed allegations are not relevant to the questions which need to be determined in this proceeding.
The present applications require determination of the primary questions of whether CW is a person for whom guardianship and administration orders may be made and whether he is need of those orders and whether there should be intervention in the EPA and EPG made by him as proposed. In respect of a number of matters, the conflict in the evidence does not need to be resolved to determine those questions.
In addition to hearing from the parties in the hearings and the material referred to above, other documents were filed which include:
•letter from Dr C (geriatrician) dated 29 March 2021 addressed to RR which confirms CW suffers significant cognitive impairment likely due to a combination of Alzheimer's disease and Cerebrovascular disease. 24 hour supervision of CW is recommended to provide the reassurance, direction and supervision needed by him. Concern is expressed about the level of his care at home;
•a completed medical guide dated 31 August 2021 from Dr N, CW's general practitioner, reporting that he has known CW for 18 years and had seen him twice in the last 12 months accompanied by his daughter RR. The report of Dr N attaches a further report from Dr C. In his report Dr N states that CW has a progressive condition. His opinion is that CW is incapable in all spheres of decision-making both financial and personal and that he is now incapable of giving an EPA or EPG or of making an advance health directive;
•Dr C's report addressed to Dr N is dated 17 May 2021. It records numerous significant health problems including dementia syndrome and anxiety experienced by CW, noting recent triggers of anxiety for CW of not being able to seek help. A cognitive test (MoCA)[18] score of 6/27 is reported in February 2021, (the scoring adjusted for CW's hearing impairment). A MoCA score of 8/30 May 2021 is reported with hearing amplifier. CW was described as physically robust with dementia; 'vulnerable to disorientation and recurrent episodes of distress when he can't find help'. A recommendation is made for review of his hearing aids as his hearing is reported to have improved significantly with the use of the hearing amplifier;
•a report from Dr T geriatrician dated 6 October 2021 confirms CW has dementia and experiences episodes of anxiety in his own home. CW's inability to manage his personal hygiene and his incontinence and his lack of insight into these issues and the degree of his cognitive impairment are reported. Dr T's recommendation is for placement of CW in residential aged care. Dr T states 'I believe the routine in a nursing home and constant supervision will improve personal hygiene and may well relieve his anxiety. Additionally, the socialization available may also be beneficial';
•an Aged Care Assessment (ACAT) dated 14 June 2021 reports that CW is approved for permanent residential care, residential respite care at a high level and a home care package level 4. He is noted to be on a waiting list for the home care package. The assessment occurred in CW's home with RR in attendance as well as a paid carer. AP was reported to be present at home but not participating in the ACAT assessment. Multiple health problems are reported, including mixed dementia syndrome. Multiple emergency department presentations are noted. It is noted that family wish to support CW remaining in his own home:
However in conversation with [CW]. It is evident he can provide one or two word answers for some long term memories and could not answer in regards to present arrangements with his grandson on-site nor duties undertaken by carers. He is limited in his ability to express his thoughts and wishes. No longer managing bills or financials. Was in receipt of a pension until October 2020, when it was deemed to be incorrectly claimed. Wife deceased eight years ago and had previously managed all finances.
CW is described as selffunded retiree. The recommendation given is for Permanent Residential - Residential Respite High and a Home Care Package Level 4 to support family caring arrangements.
•a service provider dated 4 October 2021 reports that CW receives carer shifts to assist with personal care and other domestic tasks. The report notes that CW is diagnosed with advanced dementia and is unable to fully make decisions in his best interests and vulnerable to possible financial exploitation. The report notes that a carer took CW to hospital for an anxiety attack 'which would not go away' and noted that he had had similar episodes before. Invoices for services are paid by the attorneys. CW is reported not to communicate clearly enough to make financial decisions. He is noted to refuse to have a shower or to accept assistance with personal hygiene. A health and safety risk was identified when AP was said to be 'putting the wooden fire on even when carers are not there to supervise'; and
•in another service provider report dated 25 August 2021, L is noted as the contact for the service provider. Atrial fibrillation, hypotension and amnesia are reported as diagnoses of CW. He was reportedly referred for an aged care assessment due to a change in his care needs and cognitive status: 'Daughters concerned he was not showering and has been declining assistance'. The report notes the My Aged Care assessment indicates he requires assistance with managing his finances. Client has refused showering on a number of occasions as reported by [the service provider's] care aides.
[18] Montreal Cognitive Assessment.
The investigator's report following the investigation of the matters referred includes a summary of an interview conducted with CW at his home in which he expressed his wish that SP make decisions for him. The investigator reports that CW believes he is making his own decisions and paying his own bills. It is clear from the report CW does not appreciate his dependence on others.
The report provides some detail about the financial and personal circumstances of CW and the arrangements and recommendations for his care. Conflict among family members as to the need for 24 hour care of CW and the adequacy of the existing care arrangements is reported.
It is submitted on behalf of the applicants that other than in respect of the wishes of CW, the report of the Public Advocate cannot be relied on because it is said the investigator failed to report on the conflict of interest[19] of the enduring guardians or to address a constructive trust[20] AP is said to have in CW's property. Although the independence of the Public Advocate is acknowledged in the oral submissions,[21] it is argued that the investigator did not sufficiently report IW's views or speak to AP in the course of his investigation[22] and therefore had not been advised of AP's perspective in relation to the existing care arrangements for CW.
[19] ts 20, 6 August 2021.
[20] Applicants' submission, 5 August 2021.
[21] ts 14, 15 October 2021.
[22] ts 9, 6 August 2021.
The investigator reports he had made efforts to contact AP but had been unable to do so prior to the hearing.
The views of IW and discussions with him are reported both in the written report and the oral submissions of the investigator.
The investigator's report is one part of the material before the Tribunal but an important part because of the role of the Public Advocate in proceedings before the Tribunal. The Public Advocate is an independent statutory officer with a number of functions under the GA Act, including to advance the best interests of the represented person or person to whom the proceedings relate[23] and to investigate any matter referred by a Judge, Court or Tribunal.[24] The investigator reports comprehensively on the matters referred by the Tribunal in the orders made on 9 June 2021.
[23] Section 97(1)(b)(i), GA Act.
[24] Section 97(1)(b), GA Act.
As the applicants were legally represented and their positions were argued before the Tribunal in extensive written and oral submissions, if there was any material omission in the investigator's report from the applicants' perspective this was addressed in those submissions.

Is CW a person for whom guardianship and administration orders may be made?

Although the applicants brought the applications seeking their appointment as guardians and as administrators of CW's estate, there was initially a lack of clarity as to whether they accepted that the requisite findings could be made for CW.
While it was accepted CW has cognitive decline the diagnosis of Alzheimer's dementia was queried. The Aged Care Assessment is challenged, and it is asserted CW is 'quite capable.'[25] The basis of the medical opinion of Dr T is challenged[26] and the enduring guardians are said to exaggerate CW's medical condition.[27]
[25] Applicant's submissions dated 5 August 2021, para 4.16.
[26] ts 13, 15 October 2021.
[27] Applicants' submissions dated 5 August 2021, para 4.12.
However, it was conceded that CW is a person for whom a guardian and administrator may be appointed.[28]
[28] ts 22, 6 August 2021.
I am satisfied on the medical evidence of the two geriatricians who have reviewed CW and the opinion of his long-term general practitioner that CW has a significant cognitive impairment associated with the dementia diagnosis. I am satisfied the presumption of capacity is displaced.
I am satisfied and I find that CW is unable by reason of his mental disability of making reasonable judgments about any or all of his estate. I am also satisfied that CW is unable to look after his own health and safety, unable to make reasonable judgments about his person, and is in need of oversight care and control in the interests of his own health and safety. He is therefore a person for whom an administrator order and guardianship order may be made.

Is CW in need of guardianship and administrator orders?

As noted even when a person the subject of proceedings under the GA Act lacks capacity in the relevant spheres of decision-making, the GA Act requires that the person be in need of a guardian and/or an administrator before those orders can be made. If the person's needs can be met less restrictively, orders should not be made.[29]
[29] Section 4(4), GA Act.
CW made an EPA and EPG in 2013. An EPA and an EPG might be regarded as less restrictive alternatives to the making of orders.

The EPG

The EPG made by CW has been drawn up by solicitors and meets the formal requirements for creation of an EPG.[30]
[30] Section 110E, GA Act.
By operation of s 110F of the GA Act, an EPG has effect, subject to its terms, at any time the appointor in unable to make reasonable judgments about his person.
Based on the opinions of the geriatricians of CW's significant cognitive impairment and his lack of insight into his impairment and his personal circumstances I find that the EPG made by CW is in effect, as I am satisfied that he lacks capacity to make reasonable judgments in respect of matters relating to his person.[31]
[31] Section 110F, GA Act.
As in that case, the EPG made by CW is an unrestricted authority which empowers the enduring guardians to make substitute decisions regarding his personal affairs with the same scope of authority as plenary guardians appointed by the Tribunal.

I considered the authority of and obligations on enduring guardians recently in AR [2021] WASAT 137 at [136]:
136….
Pursuant to s 110G(1) of the GA Act, the enduring guardians [who had an unrestricted authority granted to them] have the same functions as plenary guardians appointed by the Tribunal.
137According to s 45(1) of the GA Act plenary guardians have all of the functions in respect of the represented person that are, under the Family Court Act 1997 (WA) vested in a person who has parenting orders made by the Court as if the represented person were a child lacking mature understanding.

The EPA

The EPA was also drawn by solicitors and is executed in compliance with the requirements of the GA Act.[32] However, the applicants say there was a later amendment to the EPA by the attorneys which was not endorsed by CW. The copy of the EPA submitted to the Tribunal shows this amendment.
[32] Section 104, GA Act as to the acceptance and witness endorsements.
The applicants say that EPA is defective as the attorneys have purported to exclude the term in the document which provides that attorneys are subject to the provisions of Pt 9 of the GA Act. That Part deals with EPAs including the formality requirements, the obligations on attorneys and the jurisdiction of the Tribunal to intervene.
The applicants submit that for this and other reasons the Tribunal should declare the EPA invalid or revoke the EPA.[33]
[33] Applicants' submissions.
It was not argued for the applicants that CW's EPA is not in the form (or substantially in the form) of an EPA as set out in the Sch 3 to the GA Act.[34]
[34] Section 104(1)(a), Sch 3.
I accept the submissions of the applicants that the attorneys, despite their purported amendment of the EPA, cannot contract out of their statutory obligations and are bound by the provisions of Pt 9. Those provisions include the obligations on the attorneys provided in s 107 of the GA Act:
The donee of an enduring power of attorney -
(a)shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure;
(b)shall keep and preserve accurate records and accounts of all dealings and transactions made under the power;
(c)subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and
(d)shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal.
Penalty applicable to paragraph (b): $2 000[.]
The Tribunal does not have the power to declare the validity or invalidity of an EPA (in contrast to an EPG).[35] However, if an administration order is made which is inconsistent with an EPA, or pursuant to s 109(1)(c) of the GA Act an EPA may be revoked.[36]

Should the EPA and EPG be revoked?

[35] Section110K.

[36] Section 108, GA Act.

In support of their applications that the EPA and EPG be revoked the applicants say that the enduring guardians/attorneys have a conflict or potential conflict with CW and are therefore unable to act in his best interests.
As set out above, enduring guardians are subject to certain provisions in the GA Act that apply to guardians appointed by the Tribunal by operation of s 110H.[37] In contrast to what was argued for the applicants, s 44(1)(b) of the GA Act (which precludes the appointment as guardian of any person who has a conflict or potential conflict with the proposed represented person), is not one of those provisions.
[37] Sections 48-51, s 53(a), s 54, Pt 5, Div 3 other than s 57(2), GA Act.
The Tribunal may intervene in an EPG pursuant to s 110N of the GA Act if, the enduring guardian or guardians:
…
(i)wishes to be discharged; or
(ii)has been guilty of neglect or misconduct or of such default as, in the opinion of the Tribunal, renders the person unfit to continue as an enduring guardian; or
(iii)appears to the Tribunal to be incapable by reason of mental or physical incapacity of carrying out the person's duties[.][38]
[38] Section 110N(b), GA Act.
The essence of the alleged conflict of the enduring guardians/attorneys is that they are seeking to sell CW's properties, place CW into a nursing home, away from family support and comfort[39] when it is submitted that CW is being successfully cared for at his home.[40] It is asserted by the applicants that it has not been determined that CW requires residential care and the enduring guardians/attorneys are 'fixated on alienating CW from the rest of his family'[41]and wish to sell CW's property so that the attorneys would have 'surplus funds that they control'.[42]
[39] Applicant's submissions dated 5 August 2021, paragraph 3.4.
[40] ts 22, 6 August 2021.
[41] ts 25, 6 August 2021.
[42] ts 29, 6 August 2021.
It is argued that because 24 hour care is provided for CW that there could be no other reason for the move of CW into residential aged care other than the enduring guardians/attorneys wanting to be placed in a position where they have 'got those funds at their disposal'.[43]
[43] ts 23, 6 August 2021.
A decision by enduring guardians to move the appointor to a nursing home for such a purpose would on its face be a breach of the obligation on the enduring guardians to act in the best interests of the appointor. Section 51 of the GA Act sets out those requirements. A guardian acts in the best interests of the represented person if they act as far as possible 'in such a way to encourage the represented person to live in the general community and participate as much as possible in the life of the community'.[44]
[44] Section 51(2)(b), GA Act.
Whether 24 hour care is or can be provided to CW in his home is a matter which is in dispute between the parties. The position of the applicants is that such care is provided. The investigator reports that the enduring guardians have had difficulties in arranging and maintaining appropriate care and supervision for CW.
The annexures to the applicants' submissions include email exchanges[45] which record that AP may be called away to work at short or no notice and that notice of this cannot be given to the enduring guardians. An email from LC asserts that since AP cannot be available to provide supervision of CW that he will need to arrange a replacement. This is countered in a response that it is the enduring guardian's responsibility to arrange care for CW.
[45] Annexure 'K'.
Although the hours of care provided to CW are set out in the submissions filed by the applicants, all parties agree that at times these arrangements have broken down and on at least one occasion CW was left alone and wandered away from his home.[46] He was eventually taken to hospital but could not give an account of what had happened. Although there is now an argument as to who was responsible for this breakdown in the care arrangements there is no dispute that it occurred.
[46] ts 35, 15 October 2021.
In his report the investigator submits the difficulties reported by the enduring guardians/attorneys regarding the continuity of care reflect the complexity of the provision of 24 hour in-home care and the mix of private and paid care.[47] It is submitted that a decision about residential care for CW may be a solution to this problem.[48]
[47] ts 14, 6 August 2021.
[48] ts 30, 15 October 2021.
The recommendation of Dr T regarding the need for residential care for CW is challenged by the applicants. It is argued that Dr T's report cannot be relied on as RR may not have provided a 'completely accurate version' of CW's care needs and provision to Dr T.[49]
[49] ts 13, 15 October 2021.
Although SP says she was excluded from the most recent assessment conducted by Dr T,[50] I consider her evidence in the hearing regarding CW's functioning and the support provided to him, largely confirms the professional assessments of CW's care needs and his history of refusal of personal care and the risks this poses to him.[51]
[50] ts 25, 15 October 2021.
[51] ts 24, 15 October 2021.
In her direct evidence SP said that she had been told by a paid carer that it was the doctor who had suggested 'getting [CW] into a home' and not the enduring guardians/attorneys.[52] This is consistent with the recent recommendation of Dr T.
[52] ts 24, 15 October 2021.
From this and for the following reasons I consider I can rely on the report of Dr T. Dr T's report is consistent with the report of Dr C. Both are geriatricians and have specialist qualifications in the assessment and care of elderly patients. Both have experience with patients suffering cognitive impairment and the consequences of this for the patient's functioning.
It is accepted that in the assessments conducted by the geriatricians they would gather collateral information about CW's functioning from the person accompanying him, in this case RR (and a paid carer). However, there are other sources of information such as their clinical assessments and observations and the historical clinic record.
There is nothing to support the assertion that RR misrepresented CW's situation. In fact, counsel for the applicants said 'we do not know what Dr T has been told'.[53]
[53] ts 13,15 October 2021.
In addition to this, the geriatricians reports are consistent with the service providers reports and findings of the ACAT of CW's dependence on others for fundamental aspects of his care and for reassurance.
Again, the applicants challenge the ACAT Assessment findings and recommendations and say that the enduring guardians/attorneys exaggerate CW's medical condition with the intent to portray CW as being less capable than he actually is.[54]
[54] Applicants' submissions, 4 December 2021, para 4.23.
These submissions are not persuasive as while CW may be able to make himself a cup of tea as asserted, the overwhelming evidence of the professional reports before the Tribunal is that CW's presentation is significantly cognitively impaired and dependent on others for support and prompting in his activities of daily living and management of his affairs.
Whether CW needs residential care is, of course not a matter for the Tribunal, but the consideration of this material is necessary because of the assertion that the enduring guardians/attorneys have a conflict of interest arising from their proposal for residential aged care for CW.
The applicants say that the attorneys wanted to sell the properties simply so that they would have significant funds 'at their disposal' or have 'a personal interest in the estate.'[55] The assertion that the attorneys had a personal interest was denied by RR who said that the entire family were beneficiaries (under CW's will).[56]
[55] ts 23, 6 August 2021.
[56] ts 46, 6 August 2021.
These assertions (which are acknowledged as very serious) are not supported by any persuasive evidence. It is simply argued that 'otherwise' why would there be actions to 'alienate' CW from the rest of the family and get AP out of the house.[57]
[57] ts 45, 6 August 2021.
People may reasonably disagree about entry of a parent into residential aged care but the applicants have not established their contention that there is no basis for the proposal for a move to residential care for CW. In fact, it is one of the approvals in the ACAT assessment and more recently the recommendation of the geriatrician, Dr T.
In addition to this allegation the applicants say that the enduring guardians have given 'false' information about CW's hearing impairment telling the applicants at a family meeting in September 2020 that he had no hearing when in fact he has 30% hearing. There is also said to have been neglect of CW in a delay in arranging a hearing test for him which occurred in November 2020 arranged by SP. It is argued by the applicants that this should have occurred 'years ago'.
LC responded to the allegation that the enduring guardians had misrepresented the extent of CW's hearing loss and the alleged failure to arrange assessments by saying that the enduring guardians were relying on what CW had said himself historically about his hearing and what they had been told by medical professionals.[58] LC said CW decided to stop wearing his hearing aids.
[58] ts 37, 15 October 2021.
The professional and other evidence confirms CW has a hearing impairment. This is acknowledged by members of the family who refer to him being encouraged to use his hearing aids and needing assistance to change the batteries.[59] It is noted that in her letter to the general practitioner in May 2021, Dr C reports CW performed marginally better on cognitive testing with a hearing amplifier and recommends a hearing test.
[59] ts 38, 15 October 2021.
Impaired hearing may increase CW's reported communication difficulties and as a consequence contribute to his disorientation and anxiety. There is an obligation of the enduring guardians to ensure CW has access to appropriate care and services. However, even if the enduring guardians told the applicants that CW had 'no hearing' as alleged and CW does have a greater level of hearing, LC's explanation about this is a plausible one. AP and SP were in regular contact with CW and could make their own assessments.
Despite the ACAT assessment being challenged by the applicants it is also asserted by them that there has been neglect of CW by the enduring guardians by a delay in seeking an ACAT assessment of CW.
It is submitted by the investigator that an ACAT assessment is the mechanism to access all forms of subsidised aged care including domestic services and residential aged care.
It is the assertion of the applicants that CW is provided 24 hour care and that all parties appeared satisfied with the care provided to CW until a family meeting in March 2021. Since the ACAT assessment occurred in June 2021, it is unclear when the assessment should have been sought. The investigator questioned whether in fact there had been a delay.
A further allegation is that the enduring guardians do not to share information about CW's care needs with the applicants, in particular with SP and AP, who are involved in the direct care and supervision of CW.
The report of Dr C addressed to RR was provided to the Tribunal by the applicants as an annexure to their submissions and so presumably was provided to them. The applicants report attendance at a family meeting arranged by the enduring guardians. Although it is accepted that there is poor communication on both sides, the assertion that the enduring guardians have failed to share information is not accepted.
Although RR will not communicate with SP or AP, I accept other family members, LC and PB undertake that communication as necessary. An example of this was given in the hearing.[60]
[60] ts 35, 15 October 2021.
It is argued that the attorneys have not been transparent and have not shared financial information of CW with other family members. In March 2021 IW requested financial records of CW from RR but was refused.[61] Although it is acknowledged that transparency about financial matters might reduce suspicion and concerns about how CW's affairs are managed, it was conceded for the applicants that the attorneys are not under any obligation to provide financial information of CW to the applicants.[62]
[61] Applicants' submissions dated 2 August 2021.
[62] ts 27, 6 August 2021.
When asked whether CW had shared information with family members in the past about financial matters, SP said that CW's late wife had managed 'that side of everything'. SP said CW 'was very quiet' and agreed he did not volunteer information.[63]
[63] ts 23, 15 October 2021.
The applicants say that because AP and SP provide care for CW, they should be fully informed with regard to his financial information so they can determine whether particular services are appropriate and whether further financial assistance for CW's care is required. This is not consistent with the previously expressed view that the provision of services to CW is the responsibility of the enduring guardians.
Decision-making about entry into residential aged care is challenging both for the person concerned and for family members. This is not only because of the loss of independence and the familiar environment of that person, but also the financial implications arising from the payment of aged care costs which may require the sale of what is considered the 'family home'. In this case the issues are further complicated in that both SP and AP have lived in properties owned by CW for many years. Any change to those arrangements will be extremely disruptive for them personally.
CW is the registered proprietor of both of the properties. AP is said to have a constructive trust in CW's home and SP is said to have a life interest in his second property[64] by way of an unexecuted and uncompleted contract made by CW's late wife to transfer what was described as her interest in the property which was in joint names being transferred to CW on survivorship after her death.
[64] Applicants' submissions dated 2 August 2021 and ts 36, 6 August 2021.
These matters are set out in some detail in the applicants' written submissions. However, in the hearing, the submission made for the applicants is that these issues are not within the jurisdiction of the Tribunal. This is accepted. Any claims of this nature would be determined elsewhere, potentially at considerable cost to the parties.
The decision about residential care for CW must be made in his best interests taking into account his expressed wish to remain in his own home and the adequacy and sustainability of care arrangements to ensure his health and safety.
A decision which does not accord with CWs wishes to remain at home but is consistent with the obligations on the enduring guardians to ensure his health and safety and to prevent self or other types of neglect is within their authority and does not, I find represent a conflict of interest as is asserted.

Is the EPG a less restrictive alternative?

The investigator submits that the EPG is sufficient to make the relevant decisions for CW and is a less restrictive alternative to the making of a guardianship order. It is argued the EPG is consistent with his wishes as expressed at the time of execution in 2013. Notably, this was well before his diagnosis of cognitive impairment.
It is argued for the applicants that CW now wants SP, or SP and AP to make decisions for him. It is said there has been a 'breach of trust'[65] which CW cannot express but he has 'shown by his conduct' that he does not want to 'abide by the instructions of the guardians'. It is said that if he could, he would change the EPA.[66]
[65] ts 26, 15 October 2021.
[66] ts 27, 15 October 2021.
Although CW did not attend the hearings he was interviewed by the investigator at his home. The investigator reports that when asked CW said he was making his own decisions and paying his own bills. However, he said if he needed assistance that he would want SP to make medical and financial decisions for him. The investigator reported CW nodded his head when advised RR and LC were helping him with decisions as to where he should live and his finances. He reportedly shook his head and said no when asked if he wanted IW to manage his finances.
Although I accept that CW has recently expressed the wish that SP be his decision-maker, having regard to the medical assessments I am satisfied, and I find that CW lacks the requisite capacity to make a new EPA and EPG as he is not of full legal capacity.[67]
[67] As required by s 104 and s 110B, GA Act.
In ascertaining a person's wishes the Tribunal can have regard to the wishes expressed at the time or of that person's previous actions.[68]
[68] Section 4(7), GA Act.
I accept the investigator's submission that the EPA and EPG executed by CW in 2013 may be considered an expression of his wishes regarding the management of his personal and financial affairs made at a time when it is not asserted he lacked capacity to make those choices. CW did not change those instruments in the intervening years.

I am not satisfied that CW's recent change of mind as to who is to make decisions for him is sufficient to warrant the revocation of the EPG as is proposed and the appointment of a guardian by the Tribunal.
To do this would be inconsistent with the principle that orders be made only if needed.[69] Although the Tribunal is to ascertain the wishes of a person the subject of proceedings, those wishes are not determinative of the matter and the Tribunal's primary concern must be the best interests of CW.[70]
[69] Section 4(4), GA Act.
[70] Section 4(7) and s 4(2), GA Act.
The enduring guardians wish to continue in the role. Nothing has been established in the evidence that they have been guilty of neglect or misconduct which would render them unfit to continue as enduring guardians.
Even if it were accepted that the enduring guardians had delayed either the arrangement of the ACAT assessment or the hearing assessment of CW, neither would, in my judgment alone warrant the revocation of the choice made by CW in 2013.
I find there is no need for the EPG to be revoked and a guardianship order made.
Even if a guardianship order was needed it would not be possible to appoint SP as guardian in line with CW's recently expressed wishes because of the operation of s 44(1)(b) of the GA Act and the position of recognised conflict of SP regarding CW's property in which she lives and claims a life interest.[71]

Need for an administration order - is the EPA a less restrictive alternative?

[71] Applicant's submissions 14 October 2021, para 3.2

Documents submitted to the Tribunal[72] show that the EPA has been accepted and has been used at Landgate to effect the transfer of CW's properties on survivorship after the death of his late wife.
[72] Self-lodgment form survivorship, statutory declaration and identification documents and solicitor's letter dated 7 October 2013.
The attorneys filed a statement of CW's assets and liabilities and regular income as ordered.
The investigator reports that CW is a self-funded retiree who has assets including two properties but that his outgoings (of his costs of care) outstrip his income from shares and interest.
The investigator reports that proposals for care for CW by the enduring guardians/attorneys have included the consideration of whether his properties will need to be sold to fund a Refundable Accommodation Deposit estimated by the attorneys at $400500k. The investigator reports these proposals have understandably caused both SP and AP considerable upset.
In respect of the management of CW's finances, the investigator reports that RR has been managing CW's finances for three years and has taken over complete control for the past 18 months. The attorneys report they have a working relationship with CW's long-term accountant.
Although the EPA has been in place since 2013 and acted on it is said for 18 months no other issues are raised about the conduct of CW's financial affairs other than it is argued his properties should not be sold and the attorneys have failed to provide financial information when this was requested in March 2021.
The investigator reports there is mistrust in the family but submits there is no identified evidence of any wrongdoing on the part of the attorneys.
The attempt by the attorneys to amend the EPA may have contributed to distrust between the parties when the applicants became aware of it. The investigator submits that there is no compelling need to appoint an administrator of CW's estate as the EPA is sufficient for the management of CW's finances and is a less restrictive alternative to the making of an administration order. It is submitted that communication issues within the family could be resolved with the attorneys providing six monthly statements to other family members.[73]
[73] ts 17, 6 August 2021.
In all the circumstances I am satisfied that the EPA is a less restrictive alternative to meet the financial management needs of GW. As such I find there is no need for the appointment of an administrator of his estate.

Applications for intervention in the EPG and EPA

The applicants seek the revocation of the EPG pursuant to s 110N of the GA Act and the EPA pursuant to s 109(1)(c) of the GA Act and for orders that the attorneys file records of accounts kept by them of dealings and transactions made in connection with the EPA pursuant to s 109(1)(a) of the GA Act
Both s 109 and s 110 of the GA Act require the Tribunal to determine the preliminary question of whether the applicants have a proper interest in bringing the applications for intervention.[74]
[74] Section 109(1) and s 110J, GA Act.
SP and AP have a clear conflict in respect of decisions about accommodation for CW because they presently live in his properties and claim an interest in them. The decision about where CW lives is the central issue argued for the revocation of the EPG. Although, the other applicants, IW and his daughter K, no doubt have concerns about CW and may have a general interest in CW's affairs, the fact that they are family members alone does not establish a proper interest in bringing the applications made.[75] It might be arguable that they have a proper interest in reassuring themselves that CW's care is appropriate. They are living at considerable distance and it is alleged that medical and care information about CW is not shared appropriately by the guardians.
[75] BFO & Ors and KPW [2014] WASAT 68 (BFO & Ors) citing BJB and GB [2008] WASAT 307 at [58].
In some circumstances, a refusal or failure to provide relevant medical and personal information to family members by an enduring guardian might support intervention in an EPG but it would depend on the facts of the particular case.[76] In this case I find that this allegation is not made out.
[76] BFO & Ors at [22].
In respect of intervention in the EPA, the statutory framework for the making of orders under s 109 of the GA Act was set out in GA and EA and GS [2013] WASAT 175 (GA and EA and GS) at [24], [25] and [26]:
24As explained in the decisions of the Tribunal in KS [2008] WASAT 29 and EW [2010] WASAT 91 (EW), the Tribunal exercises a supervisory jurisdiction under s 109(1)(a) and (b) of the GA Act. Those sections are to be understood in the context of s 107(1)(a) and (b) of the GA Act which state that:
…
25As the Tribunal said in the decision in EW at [94]:
An enduring power of attorney is an essentially private agreement between the donor and donee, and the transactions undertaken pursuant to that agreement should not be scrutinised unless there is reason to do so.
26In EW, having found some assistance in cases concerning supervision of trustees and liquidators, which were referred to at [96]-[100] of the decision, the Tribunal said at [101] that the issues for determination in an application for orders under s 109(1)(a) and (b) are whether there is:
... something which requires an inquiry[.]
and whether there is:
… a sufficient basis for making an order for an audit of the records and accounts kept by the [donee] of dealings and transactions made by [him or] her as attorney[.]
In BFO & Ors which dealt in part with an application for costs arising from applications made under s 109 (1)(a), s 109(1)(b) and s 110N of the GA Act the Tribunal confirmed that:
28Given 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. However, there is nothing in the published decisions of the Tribunal to suggest that there must be an allegation of misappropriation or failure to comply with the obligations of an attorney so as to provide a 'proper interest' for the purposes of s 109(1) of the GA Act.
29In the absence of any allegation of misconduct or failure to comply with the attorney's obligations, factors such as whether the donor has been in the habit of sharing financial information with the applicant and the purpose of the applicant in seeking the orders for intervention will be relevant to the determination of whether the applicant has a 'proper interest' (Re SS; Ex Parte RA [2008] WASAT 218 (Re SS) at [62]). The nature of the relationship between the applicant and the donor of the EPA, that is, whether they had a close relationship or were estranged, is another relevant factor (see KS (2) [2008] WASAT 167 (KS (2)) at [38] - [46]).
There have been allegations of misconduct on the part of the enduring guardians/attorneys. In the use of language such as 'personal interest' or 'at their disposal' the applicants appear to invite an inference that there is a risk that the attorneys intend to misappropriate funds of CW on the sale of his properties. The applicants say this is the motivation for the sale of the properties of CW, but this central assertion is not supported by the evidence. I do not consider that such an allegation is reasonably based.
I find on the material before me that CW did not have a practice of sharing financial information with the applicants. The question of whether his financial information should now be shared is a matter for the attorneys in this case. This is a balance between the privacy of CW and the reassurance which might be given to family members that his affairs are being managed appropriately.
Except in rare exceptions[77] proceedings under the GA Act cannot and should not be initiated for a purpose other than a purpose of the GA Act.[78]
[77] MB [2004] WAGAB 25, identified 'persons charged by law with the responsibility to conduct investigations in the public interest' as a class of persons who may be provided access to documents pursuant to an application under s 112(4) of the GA Act.
[78] LFG and Public Trustee [2015] WASAT 71 at [34].
Applications for the appointment of a guardian and an administrator and for intervention in an EPA and EPG should not be initiated or maintained to further the interests of persons which are or may be in conflict with the interests of the proposed represented person or donor. Any such application might fall into the category of an application made for an improper or ulterior purpose.[79]
[79] See for example GA and EA and GS at [48] and PHQ and LPQ [2015] WASAT 5.
For these reasons I am not satisfied that the applicants have a proper interest in bringing the applications for intervention.
However, even if the applicants do have a proper interest, for the reasons given above I find there is no basis for intervention in the EPG as proposed. Further I am not satisfied that any reason has been established by the applicants which warrants an inquiry into the conduct of CW's financial affairs by the attorneys which would support an order of the Tribunal for provision of CW's financial records to the applicants.
For these reasons I dismissed all the applications.

Orders

In matters:
GAA 2340/2021
GAA 2336/2021
GAA 2324/2021
GAA 2338/2021
GAA 2042/2021
The Tribunal orders:
1.The applications are dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
10 FEBRUARY 2022