EE
[2024] WASAT 51
•21 MAY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: EE [2024] WASAT 51
MEMBER: MS R BUNNEY, MEMBER
HEARD: 12 OCTOBER 2023, 5 MARCH 2024 AND 15 APRIL 2024
DELIVERED : 26 APRIL 2024
PUBLISHED : 21 MAY 2024
FILE NO/S: GAA 3664 of 2023
GAA 3706 of 2023
EE
Represented Person
TC
Applicant
Catchwords:
Guardianship - Administration - Application to withdraw - Donor with capacity or presumed to have capacity - Whole purpose of enduring power of attorney - Enduring power of attorney to continue in force notwithstanding subsequent legal incapacity - Role of emergency administrator appointed pursuant to s 65 - Revocation of enduring power of attorney and enduring power of guardianship - Appointment of Public Trustee as administrator - Appointment of private guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 40, s 43(1)(b), s 43(1)(c), s 44(1)(a), s 44(1)(b), s 44(1)(c), s 44(5), s 64, s 65, s 84, s 97, s 104(1)(a), s 104(1)(b)(i), s 104(1)(b)(ii), s 105(1), s 107(1)(a), s 107(1)(b), s 110N, s 110ZD, Pt 9, Sch 3
State Administrative Tribunal Act 2004 (WA), s 46(1)
Result:
Enduring power of attorney revoked
Public Trustee appointed as administrator
Enduring power of guardianship revoked
Private guardian appointed
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
AQ [2015] WASAT 139
Briginshaw v Briginshaw (1938) 60 CLR 336
Clark and Western Australian Planning Commission [2007] WASAT 33
EW [2010] WASAT 91
FY [2019] WASAT 118
GC and PC [2014] WASAT 10
GYM [2017] WASAT 136
KS [2008] WASAT 29
LP [2020] WASAT 25
PP [2016] WASAT 133
SMM [2020] WASAT 85
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
EE is a 99-year-old woman who moved into residential aged care (Care Home) in May 2023. EE did not want to sell her home (Property) so it was leased partly furnished so that the rent could supplement her pension to pay the Care Home fees. By August 2023, EE was frequently complaining to TC, the facility manager at the Care Home, that she did not know where the rent money was, and she wanted the Office of the Public Trustee (Public Trustee) and the Office of the Public Advocate (Public Advocate) to manage her affairs.
TC filed the application to the Tribunal on 14 August 2023 in accordance with EE's wishes seeking the appointment of a guardian and an administrator.[1] The Tribunal referred the matter to the Public Advocate for investigation and the preparation of a report.[2]
[1] GA Act, s 40. The application was taken to have also been made under s 110N of the GA Act to seek the amendment or revocation of an enduring power of guardianship.
[2] GA Act, s 97.
Enduring power of attorney and enduring power of guardianship
On 13 October 2021, EE signed an enduring power of attorney to appoint her friend of 35 years CC as her attorney and her solicitor NN as the substitute attorney (EPA).[3] The EPA was required as EE had mobility issues, a hearing impairment and difficulties with communication so she was unable to use the telephone. The EPA was expressed to continue in force notwithstanding EE's subsequent legal incapacity.
[3] The substitute is authorised to act in certain circumstances, such as when CC is out of the jurisdiction for more than one week, as CC travels for work.
EE also signed an enduring power of guardianship on 13 October 2021 appointing CC and NN to act as her joint enduring guardians (EPG). NN's law firm, [Law Firm A], prepared the EPA, EPG, EE's will and the lease for EE's Property (Lease).
CC organised carers to assist EE so she could live independently for as long as possible. Around six months before EE went into care, CC started paying EE's bills online on her behalf using the EPA. EE decided in April 2023 that it was time to move into permanent residential care as she recognised that her care needs could no longer be met at home.
Application to withdraw
On 22 September 2023, TC filed a letter with the Tribunal attaching a Montréal Cognitive Assessment (MoCA) with a score of 6/25.[4] The letter sought that the application be withdrawn because:
(a)EE had appointed an enduring attorney and an enduring guardian;
(b)she did not have the capacity to make a decision about public appointments 'due to her severe impairment' as evidenced by the MoCA score;
(c)her bills were paid; and
(d)there were no concerns in relation to her care needs.
[4] The MoCA was performed on 19 September 2023 by an occupational therapist.
Section 46(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) confers a discretion on the Tribunal as to whether to grant leave to allow the withdrawal of an application. The subsection states:
(1)If the Tribunal gives leave, the applicant may withdraw or agree to the withdrawal of a proceeding or a part of a proceeding.
The SAT Act does not disclose the reason why leave to withdraw is required and does not set out the considerations that the Tribunal must take into account in exercising its discretion.[5] However, as the primary concern of the Tribunal when exercising its protective jurisdiction under the Guardianship and Administration Act 1990 (WA) (GA Act) is the best interests of the person concerned,[6] the Tribunal will only grant leave for the withdrawal of an application under the GA Act if the Tribunal is satisfied that the withdrawal is in the best interests of the proposed represented person.
[5] Clark and Western Australian Planning Commission [2007] WASAT 33 at [33].
[6] GA Act, s 4(2).
As the matter had been referred to the Public Advocate for investigation, the Tribunal sought the Public Advocate's view in respect of the request to withdraw. Following some preliminary enquiries, the Senior Investigator Advocate (Investigator) advised the Tribunal that the Public Advocate did not support the withdrawal, believing that there were some issues, particularly in relation to the EPA, that would benefit from being ventilated in the Tribunal.[7]
[7] Report prepared by Investigator from Office of the Public Advocate (OPA Report), page 2.
I did not grant leave for the matter to be withdrawn.
The hearings – October 2023, March and April 2024
The matter required three hearings due to the difficulties involved in obtaining clear evidence in respect of EE's capacity to make reasonable decisions in her best interests. The first hearing occurred on 12 October 2023 (First Hearing) and I became concerned about the management of the Lease, particularly because CC did not have a copy of the Lease and had not received a statement to confirm the amount of rent that had been paid.
The conflict between CC and NN was evident at the First Hearing, as was the fact that EE's estate was not being managed in her best interests. I determined that EE 'may' be a person for whom the Tribunal may appoint an administrator and in light of the uncertainty about the management of her estate, I was satisfied that there was a need to make immediate provision for her estate.[8] I therefore appointed the Public Trustee as EE's emergency administrator to protect and secure her estate, and specifically, to secure EE's rent money that was held in the trust account of Law Firm A (Trust Account).
[8] GA Act, s 65.
I made further orders seeking that NN file documents with the Tribunal including a copy of the Lease, the cost agreement between EE and Law Firm A, the invoices issued to EE by Law Firm A and the communications between CC and Law Firm A in respect of the Lease.[9]
[9] Orders of 10 November and 6 December 2023.
It was agreed at the First Hearing that TC would arrange for EE's General Practitioner (GP) to refer EE for a formal capacity assessment by a geriatrician. The assessment was scheduled for 26 February 2024, so the next hearing was scheduled for 5 March 2024 (Second Hearing).
Unfortunately, no one knew the name of the geriatrician that assessed EE, including EE, so the Tribunal was unable to ensure that a medical report was filed prior to the Second Hearing. This necessitated a third hearing on 15 April 2024 (Third Hearing), by which time the capacity evidence had been received.
Principles observed by the Tribunal and the presumption of capacity
The primary concern of the Tribunal is the best interests of the proposed represented person.[10] The starting point for the Tribunal is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments in respect of matters relating to their estate and their person.[11]
[10] GA Act, s 4(2).
[11] GA Act, s 4(3).
The presumption of capacity is a fundamental principle in the GA Act and can only be displaced by clear and cogent evidence of incapacity leading the Tribunal to be actually persuaded that the proposed represented person is a person for whom a guardianship and an administration order can be made.[12]
[12]Briginshaw v Briginshaw (1938) 60 CLR 336; LP [2020] WASAT 25 at [48]; GC and PC [2014] WASAT 10 at [36].
Orders should not be made if EE needs could, in the opinion of the Tribunal, be met by other means less restrictive of her freedom of decision and action.[13] It was therefore necessary to examine whether the EPA and EPG would provide a less restrictive way for decisions to be made in EE's best interests.
[13] GA Act, s 4(4).
If I was persuaded that EE retained capacity, I could dismiss the application as EE could revoke the EPA and EPG herself. She could then execute new enduring powers of attorney and guardianship to choose who she wanted to manage her finances and personal matters when she was no longer capable. However, if I found that EE lacked capacity, I could appoint a guardian and an administrator as her substitute decision-makers if I found it necessary to revoke the EPA and EPG.
In the event that orders are made appointing an administrator or a guardian, the orders should be in terms that impose the least restrictions possible on EE's freedom of decision and action.[14] The Tribunal is also required to ask about the views and wishes of the person concerned.[15]
[14] GA Act, s 4(6).
[15] GA Act, s 4(7).
Evidence at the First Hearing about capacity
I was concerned that the score on the MoCA, being a cognitive screening tool, may not be a true reflection of EE's cognitive abilities on the basis of her communication difficulties and the evidence given by the other parties. EE did not attend the First Hearing, so I was unable to speak to her directly. EE's GP stated in a medical report that he was 'unsure' about whether EE could make decisions about financial or personal matters.[16]
[16] Medical report dated 11 October 2023.
CC, who had known EE the longest, conceded that EE was 'not as sharp as she was'.[17] CC said that EE may have wanted the Public Trustee to pay her 'pocket money' so she could have more control over her money. CC had started paying the hairdresser at the Care Home directly on EE's behalf, which meant that EE did not have cash to pay the hairdresser herself. EE had complained to TC that she wanted cash to pay the hairdresser and buy lollies from the lolly cart, so CC made arrangements for EE to always have cash available for these purposes.[18]
[17] ts 36, 12 October 2024.
[18] ts 24, 12 October 2024.
TC advised that many of the residents at the Care Home had the Public Trustee as their administrator and received 'pocket money', so this may have been how EE became aware of the benefits of having the Public Trustee manage her funds.
NN's belief was that EE retained capacity and NN was therefore required to take instructions directly from EE. NN's opinion was that the EPA only came into effect once EE lost capacity, so it was not appropriate for NN to accept instructions from CC. NN stated that if she did, she would breach her professional obligations to EE, particularly in respect of confidentiality. NN stated that she could only provide CC with a copy of the Lease if EE instructed her to do so. NN was prepared to visit EE to seek her instructions.
NN's view was that it was only at the point that EE lost capacity that CC would assume complete control over EE's finances. NN's opinion was that CC's role was limited to undertaking tasks that EE could not manage herself due to her mobility issues and communication difficulties.
NN stated that when she saw EE in September 2023, her instructions were clear that she wanted the Public Trustee to manage her finances. NN said that she advised EE against engaging the Public Trustee due to the costs involved, the inconvenience and NN's view that it was not in EE's best interests.[19]
[19] ts 31, 12 October 2023.
The Investigator reported that when he met with EE on 6 October 2023, she displayed more capability than he had anticipated having seen the other evidence. However, EE told him that she did not remember signing the EPA and EPG and that her signature was forged.
The Investigator's view was that this was unlikely considering that the documents were prepared by Law Firm A and witnessed by solicitors. The Investigator noted that while EE may have lacked insight into the exact details of the problems with the rent money, her concerns were grounded in reality.[20]
[20] OPA Report, page 9.
Evidence about the rent money
NN explained that Law Firm A was collecting the rent money because, when appointed as executor of a person's will, it is more straightforward for taxation and accounting purposes if Law Firm A has a clear record of the income of the estate.[21] It was also easier for Law Firm A to ensure that the rent is paid regularly and to put warnings in place if required.[22]
[21] ts 8 and 9, 12 October 2023; OPA Report, page 9.
[22] ts 8, 14 and 15, 12 October 2023.
NN advised that there was no charge to EE for managing the property.[23] Following discussions with EE and CC in mid-2023, NN determined the weekly rent payable for the Property based on her knowledge of the suburb and her involvement with many estate matters where Law Firm A leases properties. The tenant (Tenant) was a client of Law Firm A that NN was aware was looking for a property to rent.
[23] ts 14, 12 October 2023; OPA Report, page 8.
CC had visited the Tenant to perform 'informal' property inspections and was satisfied with the condition of the Property. CC had also photographed EE's furniture that was included in the Lease. A property manager had not been formally engaged because EE was very mindful of spending any unnecessary money.[24] NN and CC both commented on, and respected, EE's frugal nature.
[24] ts 7 and 29, 12 October 2023.
CC asserted that she had asked NN on numerous occasions that the rent money be paid directly to EE's bank account so that the funds could be used to pay the Care Home fees. CC had also asked Law Firm A for a statement setting out how much rent had been paid as CC could not reconcile the amount of rent paid by the Tenant with the amount that EE had received.
As at the date of the First Hearing, Law Firm A was holding $3,960 of EE's rent money in trust. EE had only received one payment of rent on 11 August 2023 in the amount of $1,813.90.
EE's estate and the Lease
EE's estate consists of:
(a)the Property and furniture;
(b)her bank account with [Bank 1] which is the account the Care Home fees are deducted from (Bank Account);
(c)a term deposit that held $30,000 when EE went into care and held $25,000 as at the date of the First Hearing (Term Deposit); and
(d)a further account holding approximately $17,000 with [Bank 2].
The Lease commenced on 21 June 2023 for six months at $440 per week and set out the following contact information:
(a)the address was EE's address at the Care Home;
(b)the telephone number was NN's telephone number; and
(c)the email address was NN's email address at Law Firm A.
The payment details for the rent were the BSB and account number of the Trust Account at Law Firm A.
Evidence at Second Hearing – 5 March 2024
EE attended the Second Hearing in person, along with an employee of the Care Home to assist her. CC and the Investigator also attended the hearing in person. NN and EE's trust manager from the Public Trustee (TM) both attended the Second Hearing by telephone.
TM advised that the Public Trustee had arranged payment of:
(a)an invoice from a plumber who conducted emergency repairs at the Property in November 2023. The invoice was sent to NN for payment in December 2023. NN forwarded it to the Public Trustee for payment on 28 February 2024;[25] and
(b)three invoices issued by Law Firm A to EE totalling $1,285.35.[26]
[25] Email between NN and TM dated 28 February 2024.
[26] Invoices dated 8 November 2023 in the amount of $381.70 (Invoice 1), 11 January 2024 in the amount of $673.20 (Invoice 2) and 17 June 2022 in the amount of $230.45.
On 5 December 2023, the Public Trustee asked Law Firm A to arrange for the Tenant to pay EE's rent directly to the Public Trustee.[27] Despite that request, Law Firm A continued to collect the rent for the Property and was holding $5,720 in the Trust Account as at the date of the Second Hearing. Law Firm A's position was that before it could instruct the Tenant to pay the Public Trustee directly, the Public Trustee must to sign a document to indemnify Law Firm A.[28]
[27] ts 37, 5 March 2024 and email from TM to NN dated 5 December 2023.
[28] ts 19, 5 March 2024. The document was a 'Notice given under section 20 of the Property Law Act 1969'.
When asked why an indemnity was necessary when the Public Trustee was appointed as the administrator, NN advised that:[29]
… at this stage we don't know whether [the Public Trustee is] going to be actually appointed as limited administrators, plenary administrators or as administrators at all, and that's a decision that hasn't been made as yet. So in the meantime, in the interim, it would assist us to have [the Public Trustee] just simply sign and say, 'Yes, we will accept that rent', … So it would suit us and our paperwork[.]
[29] ts 21, 5 March 2024.
NN further stated that:[30]
We still have instructions from our client, so until our client [EE] is deemed to lack capacity, we still have to take instructions from her. ... I saw her yesterday, followed her up to say, 'You're happy for the rent and everything'. I didn't actually take instructions from her as to the rent being paid directly to the Public Trustee. That's something that we can arrange today[.]
[30] ts 20, 5 March 2024.
To assist, I prepared an order directing that Law Firm A instruct the Tenant to pay EE's rent directly to the Public Trustee.
Evidence at the Third Hearing – 15 April 2024
The Third Hearing was attended by the Investigator in person and TC by video link. EE was at the Care Home with TC and did not attend the hearing as she would not be able to hear what was said, but she was available if I wanted to ask her a question. CC was overseas and had been in communication with the Investigator prior to the Third Hearing. NN advised the Tribunal just prior to the Third Hearing that she was unable to attend.
The report by geriatrician Dr Y was received by the Tribunal on 26 March 2024 (Medical Report). The Medical Report stated that EE had a mental disability, which was dementia, and that she was not capable of making reasonable decisions about her personal and financial matters. I was satisfied that the evidence was sufficiently consistent and cogent to set aside the presumption of capacity and that EE was someone for whom I could appoint a guardian and an administrator.
Evidence and material before the Tribunal
I have had regard to and considered the following documents filed in the proceedings:
(a)aged care assessment team assessment dated 10 May 2017;
(b)EPA dated 13 October 2021;
(c)EPG dated 13 October 2021;
(d)letter from Geriatric Medicine Consultant from [Hospital] dated 26 April 2023;
(e)application filed by TC on 14 August 2023;
(f)letter from TC that attached a MoCA dated 19 September 2023 which indicates a score of 6/25;
(g)submissions filed by CC setting out assets, income and expenses of EE dated 22 August 2023 and a further submission setting out the dates that CC is out of the jurisdiction dated 30 November 2023;
(h)service provider report dated 10 October 2023 prepared by TC;
(i)medical report dated 11 October 2023 by the GP Dr P;
(j)report from the Investigator dated 11 October 2023 (OPA Report) and emails between CC and the Investigator filed 10 April 2024;
(k)documents filed by Law Firm A on 4 December and 12 January 2024;
(l)outpatient progress notes from Hospital dated 26 February 2024;
(m)letters from Law Firm A to the Tribunal dated 26 February, 14 and 16 April 2024; and
(n)reports from the trust manager from the Public Trustee dated 1 March and 5 April 2024, and 'indemnity' filed 12 March 2024; and
(o)medical report/letter from Geriatrician Dr Y dated 26 March 2024.
I also had regard to the oral evidence and submissions given the course of the hearings by each of:
(a)EE;
(b)TC;
(c)CC;
(d)NN;
(e)the Investigator; and
(f)the trust manager from the Public Trustee, TM.
It is important to note that my decision in relation to whether a guardian or administrator should be appointed for EE is wholly distinct from the consideration of whether a legal practitioner has complied with their professional obligations. The Tribunal has no disciplinary jurisdiction over legal practitioners in proceedings under the GA Act.
When can an administrator be appointed?
To appoint an administrator for EE, I must be satisfied that EE is currently unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate and that she is in need of an administrator of her estate.[31]
[31] GA Act, s 64.
The term 'mental disability' is defined in s 3 of the GA Act. The definition describes certain disabilities such as an intellectual disability, a psychiatric condition, dementia, and acquired brain injury. The definition also includes the ordinary meaning of the term 'mental disability' which 'contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal'.[32]
[32] FY [2019] WASAT 118 at [27].
Role of emergency administrator
I appointed the Public Trustee as the emergency, or interim, administrator pursuant to s 65 of the GA Act to protect and secure EE's estate until such time as a decision could be made about whether or not to appoint an administrator on a final basis.[33]
[33] GYM [2017] WASAT 136 at [17].
To appoint an emergency administrator, the Tribunal must be satisfied that the person 'may' be someone for whom the Tribunal could appoint an administrator.[34] To make such an order, there must be sufficient evidence to persuade the Tribunal that:
(a)the person concerned may have a mental disability that causes them to be unable to manage all or part of their estate;
(b)the person may be in need of an administrator; and
(c)it is necessary to make immediate provision for the protection of their estate.[35]
[34] GA Act, s 65.
[35] AQ [2015] WASAT 139 (AQ) at [7].
The Tribunal can appoint the Public Trustee or a private person to be an emergency administrator. The order will state whether the emergency administrator has the functions of a plenary or limited administrator and may mention specific authorities or assets the emergency administrator is directed to protect and secure.[36]
[36] PP [2016] WASAT 133 at [6].
The emergency administrator will usually secure funds held in bank accounts, pay debts, caveat properties and obtain information, for example, about the person's assets, liabilities, income and expenses. An emergency administrator can negotiate with interested parties, cancel contracts, enter into new contracts and can seek further orders from the Tribunal as required.[37]
[37] AQ at [11] and [110].
The orders appointing the emergency administrator will require the administrator to provide a report regarding their authority before the next Tribunal hearing. This report will usually comment about financial matters or transactions of concern, and interactions between the administrator and relevant parties, including requests for funds, the level of insight shown and cooperation with the administrator.
The emergency administration order I made on 12 October 2023 to protect and secure EE's estate included the following paragraphs:
1.Pursuant to s 65 of the [GA Act] the Public Trustee is authorised to exercise the functions of a plenary administrator with all the powers and duties conferred by the [GA Act] to protect and secure all of the estate of the proposed represented person including, but not limited to, the following part of the estate:
(a)the residential property of the proposed represented person at [address of Property], but not to caveat the Property;
(b)the bank accounts held by the proposed represented person; and
(c)the rental income earned by the Property and held in the trust account of [Law Firm A].
It was therefore clear on the terms of the order that the Public Trustee was:
(a)fully authorised; and
(b)directed by the Tribunal,
to secure the rental income held by Law Firm A and the income earned by the Property.
As such, the order of the Tribunal dated 12 October 2023 was the only legal authority the Public Trustee required to direct where EE's rent money was to be paid and to compel Law Firm A to transfer EE's rent from the Trust Account to the Public Trustee.
EE's views and wishes
EE's wish in 2021, as recorded in the EPA, was that CC would manage her finances, with NN as a substitute attorney. The EPG records EE's wish that she wanted CC and NN to jointly make decisions about her personal matters. When I asked EE about CC's role as guardian at the Second Hearing, I was unable to understand her response.[38]
[38] ts 8 – 9, 5 March 2024.
I asked EE at the Second Hearing about her concerns about her rent money and who she wanted to manage her money, and she was clear that she wanted the Public Trustee. I explained the ongoing fees of the Public Trustee to EE[39] and she said that she was happy with those fees, although due to the diagnosis of dementia, I cannot be certain whether or not she truly understood.
[39] Set out in the report of the Trust Manager dated 5 April 2024.
Does EE have a mental disability?
Having regard to the documentary and oral evidence provided to the Tribunal, I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of EE's ability to make reasonable judgments in respect of her estate. Dr Y performed a capacity assessment on EE on 26 February 2024 and made a diagnosis of dementia. He stated that EE was incapable of making reasonable judgments in respect of her financial and legal matters. I accept the evidence given by Dr Y, and on that basis, I find that EE does not have the capacity to revoke the EPA herself.
The evidence shows that EE was able to independently manage her finances until late 2022, when CC started assisting because EE's mobility had decreased. It appears that at some time prior to August 2023 EE started to experience confusion about her funds, in terms of the stated desire for pocket money from the Public Trustee and an inability to determine the location of her rent money.
I am satisfied that the mental disability is the cause of EE's inability to make reasonable judgments in respect of her estate. The MoCA dated 19 September 2023 provides evidence of her incapacity at that time, however I am satisfied, and I find, that she lacked capacity by 28 August 2023 when she signed the Lease.
EE had been expressing concern about her rent money with such frequency that the application was filed on 14 August 2023. The Lease clearly stated that the rent was to be paid to the Trust Account of Law Firm A, so I am satisfied that on 28 August 2023 when NN visited EE to sign the Lease, EE did not have capacity to understand the document she signed. If she had the capacity to understand the Lease on 28 August, she would have instructed NN to amend the Lease so that the rent was paid directly to her Bank Account. This would have resolved her concerns about the location of the rent money, which was the impetus for the application to the Tribunal.
Has the EPA been working in EE's best interests?
As I am satisfied that EE does not have the cognitive capacity to make reasonable judgments in respect of her estate, it follows that she does not have the legal capacity required to revoke the EPA. It is therefore necessary to examine whether the EPA is an appropriate way for decisions to be made in EE's best interests.
Enduring powers of attorney are created by Pt 9 of the GA Act. The Tribunal has the power to supervise the conduct of donees of the power to ensure that they fulfill their obligations to act diligently and protect the donor's interests.[40] This jurisdiction is available to the Tribunal whether the donor of the power is living or not, and whether they have capacity or not.[41]
[40] KS [2008] WASAT 29 (KS) at [26] and [47]; EW [2010] WASAT 91 (EW) at [17].
SMM [2020] WASAT 85 (SMM); GA Act, s 107.
[41] KS [31] – [37] and [47] – [59]; EW at [18].
All enduring power of attorney instruments are to be in the form, or substantially in the form, of Form 1 in Sch 3 of the GA Act.[42] The donor must elect whether the power will immediately operate and continue if the donor loses capacity,[43] or whether the power is only in force once the Tribunal makes a declaration of legal incapacity.[44] The EPA signed by EE states that the power is operative and will 'continue in force notwithstanding [her] subsequent legal incapacity'.
[42] GA Act, s 104(1)(a).
[43] GA Act, s 104(1)(b)(i).
[44] GA Act, s 104(1)(b)(ii).
The Tribunal has pronounced that the 'whole purpose of an enduring power of attorney is to permit a person to act on behalf of the donor during the donor's lifetime, even where they lose legal capacity'.[45] This intent is evident in the clear wording of the enduring power of attorney which states 'I authorise my attorney to do on my behalf anything that I can lawfully do by an attorney'.[46]
[45] KS at [21].
[46] Clause 2 of Form 1 set out in Sch 3 of the GA Act.
In circumstances where the donor has capacity or is presumed to have capacity, an enduring power of attorney operates as a parallel authority with that of the donor.[47] This allows the donor to ask their attorney for assistance if they are, for example, unwell, overseas or if they have a disability that makes it difficult for them to physically go out and attend to their affairs.
[47] SMM at [67].
Most importantly, as demonstrated in the current case, an enduring power of attorney that will 'continue in force notwithstanding' allows the attorney to assist where there is a gradual decline in capacity, as the attorney is able to monitor the donor's bank accounts, finances and interests, and take action as and when required. This demonstrates the reason why enduring powers of attorney were created by statute to remedy the shortcoming of a general power of attorney which ceased to operate when the donor lost capacity.
To put it simply, an enduring power of attorney will 'endure the loss of legal capacity of a donor, which would otherwise terminate the operation of a general power of attorney under the general law'.[48] As the legislation clearly states:[49]
105.Enduring power of attorney survives incapacity
(1)Notwithstanding any rule of law to the contrary or anything in this Act, an enduring power of attorney that is in force is not affected by the subsequent legal incapacity of the donor of the power[.]
[48] KS at [51].
[49] GA Act, s 105(1).
Attorney must act with reasonable diligence to protect EE's interests
While an enduring power of attorney is operating, the donee must keep and preserve accurate records and accounts of all dealings and transactions made under the power and must act diligently to protect the interests of the donor.[50]
[50] GA Act, s 107(1)(a) and (b).
I am satisfied, and I find, that CC has acted with reasonable diligence to protect EE's interests for the following reasons:
(a)the Tenant took possession of the Property on 25 June 2023 and when no rent had been received by 4 July 2023, CC emailed NN to follow up on when the rent would be paid. The Tenant started depositing rent from 17 July 2023 onwards;[51]
(b)CC continued to follow up in relation to the payment of rent and requested for the rent to be paid by the Tenant directly to EE's Bank Account;[52]
(c)CC requested a statement for the Trust Account multiple times in order to monitor the amount of rent paid by the Tenant and received by EE;[53]
(d)CC followed up on the signing of the Lease and requested a copy of the signed Lease.[54] CC also noted that the Tenant should have been provided with a copy of the Lease prior to receiving the keys to the Property;[55]
(e)CC requested an explanation of the charges EE had incurred with Law Firm A on the basis that NN informed CC 'that there would be no charge to receive and disburse rental funds';[56]
(f)CC asked whether it was possible, after EE had signed the Lease, that the Tenant be directed to pay the rent directly to EE's Bank Account;[57] and
(g)CC diligently managed the payment of Care Home fees and EE's Bank Account to ensure that funds were always available to pay the fees,[58] including transferring $5,000 from the Term Deposit to the Bank Account.
[51] Email from CC to NN dated 4 July 2023.
[52] Emails from CC to NN dated 4 July, 1, 8 and 15 August 2023 and 14 September 2023.
[53] Email from CC to Law Firm A dated 11 August 2023 and email from CC to NN dated 15 August 2023.
[54] Email from CC to NN dated 1 August 2023.
[55] Email from CC to NN dated 8 August 2023.
[56] Email from CC to Law Firm A dated 11 August 2023 and email from CC to NN dated 15 August 2023.
[57] Email from CC to Law Firm A dated 11 August 2023.
[58] Email from CC to NN dated 8 August 2023 and 14 September 2023.
Is the EPA an appropriate way for financial decisions to be made?
I am satisfied, and I find, that the EPA has not operated to provide an effective way for EE's finances to be managed in her best interests. CC's instructions were not followed in relation to the payment of rent to EE's Bank Account. CC was not provided with a statement of the Trust Account or a copy of the Lease, so she had no knowledge of EE's rights in respect of the Lease, the rent funds, or the Trust Account.
CC was also not provided with any information about the charges incurred by EE with Law Firm A. EE and CC were assured by NN, as was the Tribunal[59] and the Investigator,[60] that there would be no charge to EE in respect of Law Firm A collecting the rent. No cost agreement or estimate had been prepared by Law Firm A and provided to EE in relation to the Lease file. However, EE did incur charges in relation to the Lease, and then the Tribunal proceedings, including but not limited to:
(a)the transfer of rent from the Trust Account to EE's Bank Account;[61]
(b)enquires of a paralegal about how to pay the bond;[62]
(c)the bond lodgement;[63]
(d)filing documents in accordance with the orders of the Tribunal;[64] and
(e)telephone calls between NN and the Tenant, and NN and the Public Trustee.[65]
[59] ts 14, 12 October 2023.
[60] OPA Report, page 8.
[61] Invoice 1.
[62] Invoice 1.
[63] Invoice 1.
[64] Invoice 2.
[65] Invoice 2.
CC anticipated that EE must have incurred legal fees when the payment of $1,813.90 in rent was received on 11 August 2023. CC requested a statement on 11 August 2023 so she could reconcile the amount received but it was not provided to her. Following the First Hearing, I made orders requiring Law Firm A to file the trust statement and copies of all invoices issued to EE in respect of the Lease file.
The documents filed revealed that the Tenant started depositing rent on 17 July 2023. By 27 July 2023, Law Firm A was holding $840 in rent. Law Firm A used those funds to pay two invoices issued to EE totalling $826.10, leaving a balance of $13.90 in the Trust Account.[66] EE and CC were not aware of these two invoices as Law Firm A had emailed them to NN, rather than directly to EE or to CC as EE's attorney. NN advised that she saved the invoices to the file.[67]
[66] Invoice dated 22 June 2023 in the amount of $617.10 and invoice dated 13 July 2023 in the amount of $209.00, giving a total was $826.10.
[67] ts 32, 5 March 2024.
In relation to the legal costs incurred by EE, this exchange occurred during the Second Hearing:
NN:... [EE] does want the Public Trustee to deal with her funds. I think that reassures her, but the question which she asked us a moment ago was how much do they charge, because she didn't want me either to appear today ...
I needed to put that on record, because she said to me in her exact words, 'You charge me like a bull'. So I said, 'Well, that's fine. We need to find out how much the Public Trustee charges so that you're clear'. So yes, I wanted to ask a question, Member, if I may, in relation to my costs for the appearance. Would it be appropriate to charge [EE]?
MEMBER:Well, that really depends on what your cost agreement says and the scope of your instructions.
NN:Well, this wasn't envisaged at the time, so I'm not quite sure. I can review, yes, the letter of engagement, but this wasn't envisaged, as I say, at the time …[.][68]
[68] ts 23, 5 March 2024.
Conclusion in relation to EPA
There is no evidence in any of the documents provided to the Tribunal, and no one gave oral evidence at any hearing, that raised any concern about CC acting against EE's interests in any way. The Investigator's view, which I share, is that CC has consistently acted in EE's best interests in relation to the management of her estate. CC has managed EE's finances transparently and has shared bank statements with NN. CC has also taken copies of statements and bills to EE when she visits twice weekly to keep her informed of what is happening and what is being spent.[69]
[69] OPA Report, page 7.
However, the EPA has not functioned as expected and CC has been unable to appropriately exercise the power, with multiple examples listed above. The EPA names NN as the substitute attorney to act in circumstances where CC is out of the jurisdiction for more than one week. I have no confidence that such an arrangement is in EE's best interests.
I will therefore revoke the EPA and appoint an administrator.
Conclusion on administrator
CC did not propose herself as administrator and was agreeable to following EE's wishes in relation to having the Public Trustee appointed as administrator.
As there were no nominees for appointment as administrator, the only option open to the Tribunal is to appoint the Public Trustee as EE's plenary administrator. I am therefore able to follow EE's wish. I will also include a gifting authority of $1,000 per year so the administrator can purchase gifts on EE's behalf.
When can a guardian be appointed?
To appoint a guardian for EE, I must be satisfied that one or more the following criteria apply:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.[70]
[70] GA Act, s 43(1)(b).
I must also be satisfied that there is a need for a guardian.[71]
[71] GA Act, s 43(1)(c).
Conclusion on capacity to make personal decisions
There is ample evidence that persuades me that that the presumption of capacity has been set aside in respect of making personal decisions, and that EE is someone for whom I can appoint a guardian.
I am satisfied and I find that EE is incapable of looking after her own health and safety. As at April 2023, EE's required level of care was such that she was unable to live safely at home with a home care package, making it necessary for her to move to the Care Home.
However, one year later, she is now unable to make reasonable judgments in respect of her person. The evidence from the Medical Report states that she currently does not have the cognitive capacity to make decisions about accommodation, services and medical treatment. It was CC that noticed that EE needed new dentures and made arrangements with TC for a dentist to visit EE at the Care Home. EE was unable to recognise the need for new dentures or to make that arrangement for herself.
EE is in need of supervision and oversight in order to protect her health and safety. This is evidenced by the fact that she could not remember the name of the geriatrician she saw in February 2024, and no one else had oversight and could advise the Tribunal of the name of the geriatrician.
I am satisfied that EE is someone for whom I can and should appoint a guardian.
Is there a need for a guardian?
I am not satisfied that the EPG will be an effective way for decisions to be made in EE's best interests. CC and NN were not able to work cooperatively together in respect of the EPA, and I have no confidence they will be able to work together to make personal decisions for EE. I will revoke the EPG on that basis.
In order to ascertain whether there is a need for a guardian, it is necessary to examine whether there are any ongoing personal decisions that EE is unable to make herself and would require a guardian to make for her.
Functions of guardian required
There is no need for a guardian to make decisions about accommodation or services. EE chose the Care Home in April 2023 and all services she may require are included. It is clear that the Care Home is diligently caring for EE, evidenced by the filing of the application to the Tribunal in accordance with her wishes. While the Care Home did seek to withdraw, the act of making the application was all that was required to discharge their obligations to EE, and it was then up to the Tribunal, with the assistance of the Public Advocate, to decide whether or not to allow the withdrawal. I am grateful to TC for making the application.
My view is that EE requires a medical treatment guardian to give informed consent to medical treatment and procedures. The evidence from Dr Y is that she lacks the capacity to make these decisions and the new diagnosis of dementia, which is a progressive condition, will require follow up appointments and monitoring. The medical treatment guardian will ensure that EE's family members will be kept updated about EE's health. I note that CC already contacts EE's family overseas to provide updates by email.
I am satisfied, and I find, that EE requires a limited guardian to make decisions about medical treatment. While CC would having standing under s 110ZD of the GA Act to make medical treatment decisions as someone that maintains a close personal relationship with EE, my view is that it is in EE's best interests that there is clarity for all health professionals that treat EE about who has the authority to make medical treatment decisions for her.
Suitability of proposed guardians
The Tribunal is unable to appoint the Public Advocate as guardian unless the Tribunal is satisfied that there is no other person who is suitable and willing to act.[72]
[72] GA Act, s 44(5).
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of the person, is suitable to act as the guardian,[73] is not in a position where their interests' conflict or may conflict with EE's interests[74] and that the proposed guardian will be able to perform functions vested in them.[75]
[73] GA Act, s 44(1)(a).
[74] GA Act, s 44(1)(c).
[75] GA Act, s 44(1)(b).
CC told me that she promised EE that she would look after her until she died, and she intends to keep that promise. All the evidence before me demonstrates that CC has always acted in EE's best interests. CC confirmed by email to the Investigator that she consents to the appointment.[76] I am satisfied, and I find, that CC is suitable to be appointed as EE's medical treatment guardian, and I will make that appointment.
[76] Emails between CC and the Investigator filed 10 April 2024.
How long should the order run for before it must be reviewed?
When making orders, the Tribunal is required to fix a period for the review of the order.[77] The medical evidence is clear that EE has a diagnosis of a progressive illness such that her need for a guardian and administrator will be lifelong. Therefore, these orders are to be reviewed within the maximum term possible which is within 5 years of the date of the orders.
[77] GA Act, s 84.
Orders
GAA/3664/2023
The Tribunal declares that the represented person, [EE] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
1.The order made on 12 October 2023 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.
4.The enduring power of attorney dated 13 October 2021 by which the represented person appointed [CC] to be their attorney, is revoked.
5.The Public Trustee is to be provided with copies of all documents on files GAA/3664/2023, and GAA/3706/2023.
6.The administration order is to be reviewed by 26 April 2029.
Guardianship
7.[CC] of [address] is appointed limited guardian of the represented person with the following function:
(a)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA).
8.The guardianship order is to be reviewed by 26 April 2029.
GAA/3706/2023
The Tribunal notes:
1.The represented person signed an enduring power of guardianship on 13 October 2021 appointing [CC] and [NN] as her joint enduring guardians.
The Tribunal orders:
2.The enduring power of guardianship is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
21 MAY 2024
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