ELI
[2025] WASAT 82
•15 AUGUST 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: ELI [2025] WASAT 82
MEMBER: MS R BUNNEY, MEMBER
HEARD: 28 JANUARY, 7 MARCH AND 1 MAY 2025
DELIVERED : 1 MAY 2025
PUBLISHED : 15 AUGUST 2025
FILE NO/S: GAA 63 of 2025
GAA 471 of 2025
ELI
Represented Person
APP
Applicant
RB
Third Party
Catchwords:
Guardianship - Administration - Enduring power of attorney - Enduring power of guardianship - Allegations of elder abuse - Allegations of alienation from family - Payment of legal fees from estate of incapable person - Enduring guardian must act in best interests of appointor - Enduring attorney must diligently protect interests of donor - Enduring attorney must keep accurate records of transactions made under the power - Application dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 51, s 107, s 110H, s 110N
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| Applicant | : | In Person |
| Third Party | : | Mr R Squires |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
| Third Party | : | JK Legal |
Case(s) referred to in decision(s):
EW [2010] WASAT 91
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
ELI is in her mid-90s and was diagnosed with dementia three years ago. The applicant, APP, is ELI's niece, being the daughter of her brother. APP made the application to the Tribunal to seek appointment as ELI's guardian and administrator when she discovered that ELI's home (Home) had been sold by her enduring attorney, RB. Further, RB would not tell APP where ELI lived.
RB also refused to tell the Tribunal where ELI was but agreed to tell the Sheriff so ELI could be served with notice of these proceedings. A directions hearing was held as soon as possible to confirm ELI's location and that she was safely accommodated.
ELI's family have been concerned about her welfare for several years. In early 2023, family members from ELI's husband's side of the family asked RB for information about ELI's health and care arrangements. In response, they received a letter from ELI's solicitor to advise that they were not to contact ELI or RB. In April 2023, ELI's nephew contacted the Office of the Public Advocate (Public Advocate) to express his concerns that RB may be financially exploiting ELI.
The Tribunal referred APP's application to the Public Advocate for investigation and report. When all the available evidence was reviewed and the matter was heard, it was apparent that this was an unfortunate story where all parties involved had acted in ELI's best interests, but due to the delusions and hallucinations caused by her illness, ELI chose to distance herself from her family members. RB's desire to respect ELI's wishes by not revealing her diagnosis or that she had moved into the Nursing Home in November 2023 caused the distrust and suspicion that led to the Tribunal proceedings.
I dismissed APP's application to allow RB to continue to act as ELI's enduring attorney and enduring guardian. I indicated that I would provide reasons for my decision. These are my reasons.
Principles to be observed by the Tribunal
The primary concern of the Tribunal when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is the best interests of the person for whom the application was made, ELI. The Tribunal must ascertain ELI's views and wishes, as far as possible.
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 about matters relating to their estate and their person. If this 'presumption of capacity' is set aside by cogent evidence, the Tribunal can consider making guardianship and administration orders.
The Tribunal must consider whether ELI's needs could be met by other means less restrictive on her freedom of decision and action. If the Tribunal makes an order, the order must impose the least restrictions possible.
The Tribunal will take all facts and circumstances into account when determining ELI's best interests. The Tribunal may inform itself on any matter as it sees fit, and is not bound by rules of evidence, which ensures, as far as possible, that all relevant information can be considered by the Tribunal to make the correct decision in ELI's best interests.[1]
[1] State Administrative Tribunal Act 2004 (WA), s 32(2) and s 32(4).
Evidence before the Tribunal
A directions hearing was held on 28 January 2025 to establish where ELI lived. Ms X, the Residential Manager at the Nursing Home, attended the directions hearing, as did RB and APP. APP became aware that ELI had signed an enduring power of guardianship and made an oral application that it be revoked.[2] RB confirmed that there was no reason why APP could not visit ELI at the Nursing Home. Ms X agreed to facilitate this and APP visited ELI soon thereafter.
[2] GA Act, s 110N.
The substantive hearing occurred on 7 March 2025. ELI, Ms X, APP, RB and RB's counsel Mr Squires attended the hearing. Mr B, an investigator from the Public Advocate, attended the hearing in lieu of the investigator Ms M (Investigator) who was unable to attend. A report prepared by the Investigator was filed with the Tribunal.
I asked RB to file further submissions to explain how she was going to manage the payment of her legal fees to JK Legal (Law Firm) for representation at the Tribunal proceedings as she had used ELI's funds to pay them. APP was also permitted to file any further submissions in response. Various documents and submissions were filed by APP, ELI's nephew N1 and RB, along with documents sought by the Tribunal from the real estate agent that sold ELI's Home, ELI's bank, her general practitioner Dr G and her geriatrician Dr F.
I have had regard to the written evidence filed with the Tribunal and the oral evidence given at the hearings. The relevant features are summarised in these reasons.
Issues
When deciding whether to appoint a guardian or an administrator, the Tribunal must first determine whether ELI lacks the capacity to make decisions about her personal and financial matters. If so, the Tribunal will then consider whether it needs to make an order, or whether there is another way for decisions to be made that is less restrictive on ELI's freedom of decision and action. If the Tribunal needs to make orders, the Tribunal must then decide who the guardian or administrator will be, the functions or powers they require and when the order will be reviewed.
The issues for the Tribunal to decide in this matter is whether the enduring power of attorney ELI signed in 2019 to appoint RB as her attorney (EPA) and the enduring power of guardianship ELI signed in 2021 to appoint RB as her guardian (EPG) are the appropriate way for financial and personal decisions to be made for ELI.
ELI's views and wishes
The Tribunal must ascertain ELI's views and wishes, as expressed or gathered from her previous actions. ELI told me at the hearing of 7 March that she only wants RB to act as her substitute decision-maker. She also expressed this view to Ms X[3] and to the Investigator.[4]
[3] Service provider report by Ms X dated 11 February 2025.
[4] Investigation report prepared by investigator Ms M dated 5 March 2025 (Investigation Report).
ELI's documented views and wishes in respect of RB have been consistent for ten years. RB has been an executor of ELI's will since 2015. ELI signed two enduring powers of attorney, one in 2016 and one in 2019, both of which appoint RB as her sole attorney. In mid-2021 shortly after receiving a diagnosis of mild cognitive impairment, ELI signed the EPG to appoint RB as her guardian.
Despite the symptoms of dementia impacting on other important relationships in her life, ELI was able to express her clear wish to the Tribunal that she only wants RB to make decisions for her.
Findings of fact
The facts set out in [20] to [43] below are not controversial and I make findings in accordance with those facts.
Background to ELI's will
ELI's husband NH passed away in mid-2012. They had no children together and NH always wanted his three nephews and one niece, N1, N2, N3 and N4 (collectively, the N Family), to inherit ELI's and NH's combined estate. In accordance with NH's wishes, ELI prepared a will in late-2012 that left her estate to the N Family in equal shares. N1, who is ELI's godson, was appointed as the executor.
Over time, ELI changed her mind about how she wanted to leave her estate. In a will signed in 2015, ELI appointed RB and APP's stepmother as her joint executors. She included APP and a friend JJ as beneficiaries along with the N Family in equal shares.
In a will signed in 2019, ELI appointed RB as her sole executor. JJ was removed as a beneficiary and RB was included as a beneficiary along with APP and the N Family in equal shares. ELI told APP at the time that she added RB as a beneficiary. APP told ELI that, as RB had been such a huge help to her, it was reasonable that she would leave RB a gift. By 2019, ELI needed more assistance on a daily basis and RB was taking her shopping, to medical appointments and running errands.
In 2021, ELI was diagnosed with a mild cognitive impairment.[5] ELI signed the EPG shortly thereafter.[6]
Events of 2022 - formal diagnosis and new will
[5] The mild cognitive impairment was discussed in a letter prepared by Dr F dated 7 April 2022.
[6] EPG dated 20 May 2021.
In April 2022, ELI first met her geriatrician, Dr F, who diagnosed her with Alzheimer's dementia.[7] In May 2022, ELI told Dr F that she would like to change her will.[8] In July 2022 following further testing, Dr F formed the view that ELI had the capacity to change her will.[9] In August 2022, ELI signed a new will that included the same beneficiaries but made a larger gift to RB.
[7] Letter from Dr F dated 7 April 2022.
[8] Letter from Dr F dated 27 May 2022.
[9] Letter from Dr F dated 29 July 2022.
Both EPAs, the EPG and ELI's wills dated 2012, 2015, 2019 and 2022 were all prepared by the Law Firm.
In December 2022, N1, N2 and some other family members visited ELI. ELI had received the diagnosis of dementia, but she forbade RB from telling anyone, which RB respected.
Events of 2023 - contact from N Family, concerns and decline
In January, N3, who lives overseas, visited Western Australia and saw ELI. ELI told him that she had changed her will and RB had control of her funds.[10] N3 asked ELI what the terms of the new will were, and ELI said that she did not know.[11] N3 offered to get a copy of the will from the Law Firm but was unable to do so.[12]
[10] Letter from Main Legal to the Law Firm dated 26 April 2023.
[11] The chronology filed by N1 (Chronology) states that N3 visited ELI on 15 January 2023.
[12] Letter from Main Legal, the N Family's solicitor, to the Law Firm dated 26 April 2023. Chronology states that N3 sent N1 an email on 18 January 2023 about the conversation with the Law Firm.
In February, the N Family attended ELI's Home to try to see her. She did not answer the door on 7 or 9 February, so they attended RB's home. On 9 February, RB told N1 that ELI was at home but she would not answer the door because she was upset by N3's visits in January.[13] RB told N1 that N3 had a young person with him who asked to see ELI's will.[14] RB also disclosed that ELI wanted her phone disconnected and while she has a new phone number, she did not want RB to give it to anyone.
[13] Summary document prepared by N1 and filed with the Tribunal on 3 February 2025.
[14] Summary document prepared by N1 and filed with the Tribunal on 3 February 2025.
On 8 February, N3 emailed the Law Firm to ask who ELI's enduring guardian was. On 22 February, the Law Firm responded to say that he should seek legal advice.[15]
[15] Chronology.
On 28 February, N1 and N4 spent time with ELI at Home. This was the last time they saw her. From the end of February, APP had limited contact with ELI.[16]
[16] Submissions of APP attached to the application filed 6 January 2025.
On 2, 12, and 21 March, the N Family attended ELI's Home, and then RB's home, but could not locate either of them. The N Family was not aware that ELI was staying in respite care as RB was interstate and ELI was too scared to stay at home by herself without RB close by.
On 29 March, the N Family wrote to RB to ask whether ELI was receiving care in her home and if a medical assessment had been prepared. The letter set out their belief that ELI may have Alzheimer's dementia, as withdrawing from family was a common symptom, as was mood swings, which they said they had observed in their visits with her in January and February. The letter requested that RB call the N Family each week to provide an update about ELI's condition.
In April, N1 called APP and explained that he could not get in touch with ELI as her telephone had been disconnected. N1 asked if APP knew if ELI was okay. APP called RB to ask about ELI and was told by RB that ELI was being 'harassed' by the N Family. RB said that ELI was scared, felt threatened by them and now disliked them more than she previously did.
APP did not tell RB that she had already been in touch with the N Family who had explained their version of events, which was different to what RB described.[17]
[17] Submissions of APP attached to the application filed 6 January 2025.
On 6 April, ELI instructed the Law Firm to write to the N Family to advise that she did not want to see them. The terms of each letter were different but the letter to N3 specifically alleged that N3 had:
(a)demanded to see ELI's will;
(b)demanded that ELI give the Law Firm authority to speak to N3 on ELI's behalf about the will;
(c)contacted ELI's neighbours when ELI did not open the door and tried to find out her whereabouts on the basis that she has dementia and could have wandered off; and
(d)displayed aggressive behaviour towards ELI and one of her neighbours.
The letter to N1 stated that:
(a)he and his siblings had attended ELI's Home demanding details of her finances and the contents of her will;
(b)he attended RB's home and interrogated her about ELI's finances and said words to the effect that ELI 'should be put away'; and
(c)he had displayed aggressive behaviour towards ELI and RB.
Shortly after the letters were sent, N3 contacted the Public Advocate Telephone Advisory Service to explain his concerns about RB's influence over ELI and potential to financially exploit ELI.
APP last saw ELI and RB on 27 April. APP spoke to ELI a few times in May and June, but did not have any contact with ELI for the rest of 2023 due to APP's own personal issues.
By late 2023, ELI was leaving the gas on, leaving taps running and was having falls. RB decided it was no longer safe for ELI to continue living alone at Home, so RB arranged for ELI to move to the Nursing Home in November 2023.
Events of 2024 - sale of Home and limited contact with APP
RB cleaned ELI's Home, packed all of her belongings and prepared the Home for sale, which took around four months. The proceeds of sale were banked in ELI's bank account at settlement in March 2024.
APP tried to contact ELI and RB intermittently in 2024. She spoke to RB in January and was told that ELI was 'doing great'. APP managed to speak to RB in October after 18 months of no contact and RB told APP that ELI had dementia and was living in aged care. RB explained that ELI did not want to have contact with any family members and did not want them to know where she was. APP was shocked to hear that this included her. She understood if it related to the N Family but APP had always had a close relationship with ELI.
In late November, APP asked RB to ask ELI if she would like to catch up for a coffee or lunch. RB asked ELI several times, but ELI said 'no'. RB tried to reassure APP that ELI was not upset with APP but her behaviour was caused by dementia. A few days later, APP searched the internet and found that ELI's Home was sold eight months earlier. APP messaged RB to ask about ELI's cognitive test scores and aged care team assessment but did not get a response.
In early December, APP texted RB to advise that ELI's family member had passed away. RB replied to say that ELI did not remember the family member. APP messaged again on Christmas Day and did not receive a response. APP then decided to file the application in early January 2025.
I will next turn to discuss the issue of ELI's capacity to make her own decisions.
Does ELI lack the capacity to make financial decisions?
To appoint an administrator, the Tribunal must be satisfied that ELI is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate.
At law a mental disability includes dementia.[18] The medical evidence of ELI's geriatrician Dr F, which I accept, is that ELI was formally diagnosed with Alzheimer's dementia in April 2022, which was confirmed by PET scan that showed structural changes and reduced metabolism in ELI's brain associated with Alzheimer's dementia. Following an MRI performed in May 2022, which showed volume loss and changes in the small vessels in ELI's brain consistent with vascular dementia, the diagnosis was expanded to Alzheimer's disease plus cerebral small vessel ischemia.[19]
[18] GA Act, s 3.
[19] Letter from Dr F dated 30 January 2025.
A person's 'estate' includes their real and personal property, all assets and liabilities, and all of their financial affairs. ELI's estate is simple but substantial and consists of her refundable accommodation deposit paid to the Nursing Home and many hundreds of thousands of dollars in the bank, the majority of which is the proceeds of sale from her Home.
There is no doubt, in my view, that the diagnosis of dementia is the cause of ELI's inability to make reasonable judgments in respect of her estate. Dr F's view is that ELI does not have the capacity to manage simple or complex financial matters or legal matters. RB managed all aspects of the sale of ELI's Home and made all arrangements in relation to the payment of ELI's aged care fees in late 2023 including paying the refundable accommodation deposit from ELI's savings.
I am satisfied, and I find, that the mental disability causes ELI to be unable to make reasonable judgments about her estate. The presumption of capacity in relation to ELI's ability to make financial decisions has been set aside, and ELI is therefore a person for whom I can appoint an administrator.
I next turn to explore whether ELI is able to make decisions about her personal matters.
Does ELI lack the capacity to make personal decisions?
To appoint a guardian for ELI, I must be satisfied that she is over 18 years of age and that one or more of 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.
I am satisfied, and I find, that ELI is currently incapable of looking after her own health and safety. I accept RB's evidence that ELI moved to the Nursing Home in November 2023 because she was unable to live safely at Home and her health and safety was at risk.
I am satisfied, and I find, that ELI is currently incapable of making reasonable judgments in respect of her person. The evidence from Ms X, which I accept, is that ELI will revert to the past and needs redirection and reminders to come back to the present.[20] Dr F's opinion is that ELI does not have the capacity to make personal decisions.[21]
[20] Service provider report by Ms X dated 11 February 2025.
[21] Letter from Dr F dated 30 January 2025 and medical report dated 31 January 2025.
I am satisfied, and I find, that ELI is in need of oversight, care or control in order to protect her health and safety. The Nursing Home provides 24/7 care. ELI is living in a secure part of the Nursing Home due to her tendency to wander.
I am satisfied, and I find, that the presumption of capacity has been set aside in relation to personal decisions and ELI is a person for whom I can appoint a guardian.
I next turn to explore whether ELI needs the Tribunal to appoint a guardian or an administrator. I must adopt a less restrictive option if possible. To determine whether the EPA and the EPG are an appropriate, less restrictive way for decisions to be made, I must consider whether the decisions made using those documents have been in ELI's best interests.
I will start with the EPG.
Is there a less restrictive option available to make personal decisions?
An enduring power of guardianship is usually considered less restrictive than a guardianship order if it was prepared at a time when the appointor had capacity and could choose who they wanted to make their personal decisions.
ELI signed the EPG on 20 May 2021. ELI's general practitioner (GP), Dr G, wrote a letter on 13 May 2021 to confirm that ELI had the capacity to sign an enduring power of guardianship. I accept Dr G's evidence, and I find, that ELI had the required capacity when she signed the EPG.
A guardian appointed by the Tribunal or pursuant to an enduring power of guardianship is required to act in the represented person/appointor's best interests.[22] Section 51 of the GA Act states a guardian acts in the best interests of a represented person if the guardian acts as far as possible:
[22] GA Act, s 110H.
…
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for themself and of making reasonable judgments in respect of matters relating to their person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment[.]
It is necessary to examine RB's decision in early 2023 not to tell APP and the N Family about ELI's diagnosis and her decision in November 2023 not to advise that ELI had moved to the Nursing Home. It is also necessary to consider the allegation that RB deliberately alienated ELI from APP and the N Family. APP further alleged during the Tribunal proceedings, after reviewing some of the documents filed, that RB had manipulated, coerced and abused ELI both financially and mentally and ignored a number of medical issues.
Decision not to disclose diagnosis of dementia in early 2023
I accept RB's evidence that in 2022, ELI forbade her from telling anyone about her diagnosis of dementia. At this time, APP was still in contact with ELI, but RB was ELI's sole support and was:
(a)managing all her finances;
(b)taking her to all medical and dental appointments and taking her shopping to buy clothes and food. RB also ensured her nails and toenails were done, and would cut her hair;
(c)arranging all matters relating to her home including the installation of security doors, gate, lights, a patio and security cameras;
(d)cooking daily to ensure ELI was getting proper nutrition. ELI liked to go out almost every day for coffee and cake or lunch so RB would take ELI wherever she wanted to go;
(e)cleaning her home, washing clothes and changing linen; and
(f)when ELI had her dog, RB would bathe him and take him to all vet appointments.
In addition, as set out earlier in these reasons, RB had been ELI's executor since 2015 and was first appointed as her enduring attorney in 2016. No other person has been appointed as a substitute decision-maker by ELI in that time. There is clearly a very close relationship of trust and confidence between ELI and RB and it is reasonable in my view that RB respected ELI's wishes in relation to not disclosing the diagnosis of dementia to other family members, particularly the N Family who only saw ELI sporadically.
Decision not to advise family members of ELI moving to the Nursing Home
In late November 2023 when ELI moved into the Nursing Home, RB told ELI that she was going to notify the family. ELI said that she did not want any family members to know. When RB asked, 'what about APP', ELI repeated that she did not want anyone to know. RB thought about it and concluded that if she went against ELI's wishes, then ELI would not trust her.[23]
[23] ts 36, 7 March 2025.
At this time, neither APP nor the N Family had been in contact for over 6 months, so I am satisfied that this was a reasonable decision at that time for RB to honour ELI's wishes.
Allegation of ignoring medical issues and mental abuse
APP raised two issues related to ELI's health, the first being a prolapse and the second relating to a wound on ELI's leg. I am satisfied on the basis of the extensive medical records before the Tribunal and the submissions filed by RB that she has not ignored any of ELI's medical issues.
In terms of the allegations of abuse, ELI has had the benefit of a number of independent professionals involved in her life for many years who would have identified the type of abuse APP is alleging. ELI attended upon the same medical practice for 19 years from 2004 up to her admission into the Nursing Home. From August 2019, well before the diagnosis of dementia, she almost exclusively saw her GP Dr G. ELI has been attending upon Dr F for around 2.5 years. These medical professionals would have likely identified if ELI was being physically, mentally or emotionally abused.
In addition, ELI has been a resident at the Nursing Home for almost three years. The medical and allied health professionals that treat and care for her at the Nursing Home would also likely identify any indicators of abuse of a resident.
ELI has attended upon the same Law Firm for 13 years and consulted with them for a variety of reasons over the years. Solicitors have a professional obligation to act in the client's best interests and are trained to identify issues such as undue influence or coercive control.
I am satisfied that there is no evidence before the Tribunal that demonstrates that ELI has been physically, mentally or emotionally abused in any way.
Allegation that RB alienated ELI from family members
APP contends that in early 2023 when she was still in contact with ELI, RB would ensure that ELI spent no time alone with her, would manipulate ELI when APP would meet them for coffee or lunch and would shut down ELI in conversations. In April 2023, N3 contacted the Public Advocate to discuss his concerns about RB's influence over ELI and potential to exploit ELI.
These are serious allegations and as RB was not forthcoming with information about ELI when she was asked, it is understandable that the N Family and APP were concerned about ELI's welfare. The Tribunal was equally concerned when RB did not disclose ELI's location and filed redacted documents.
However, the detailed clinic letters prepared by Dr F provide an independent account of ELI's experience of reality as her illness progressed and how the N Family's questions about her new will and their attempts to contact ELI impacted on her and the decisions made by RB on ELI's behalf. I accept the evidence of Dr F who is an experienced consultant geriatrician and was independent to all parties.
ELI saw Dr F on 21 March 2023 after she had spent three weeks in respite due to her fear of being home alone following the N Family's attempts to visit her in January and February 2023. Dr F noted that there had been a great deal of anxiety and stress due to the N family 'bothering her' over her will. Dr F reported that:[24]
…[O]ne of them who lives [overseas] had apparently come over to [Western Australia] and made a few unannounced visits. The one who lives in [Western Australia] also was making unannounced visits to her. I gather they were looking for the will and trying to work out what had been changed. [ELI] was very intimidated and fearful because of all this. She did let them in when they knocked at the door, but given her cognitive impairment that is not surprising. She became very fearful that they would drop by thereafter. Loud noises or car doors slamming made her visibly fearful. No actual physical harm or aggression was done[.]
[24] Letter from Dr F dated 21 March 2023.
RB's evidence is that N3 visited ELI on 12, 15 and 18 January 2023. ELI told RB that she was not sleeping at night because 'those boys' (referring to N1, N2 and N3) were peeping through her bedroom windows, banging on the glass and the front door, and then running away laughing. If there was an unfamiliar car parked nearby, ELI would say to RB that the N Family was 'hanging around'.[25]
[25] Submissions filed by RB on 10 February 2025.
In late April 2023, RB confided to APP what ELI told her happened in January 2023 when N3 came to visit her at Home. ELI told RB that:
(a)she was terrified by N3's behaviour as he went through her cupboards and drawers demanding to see a copy of the will;
(b)N3 said words to the effect of, 'the will better be how [NH] had wanted it or else'; and
(c)N3 had a young boy with him.[26]
[26] Submissions of APP attached to the application filed 6 January 2025.
APP spoke with the N Family who denied that any of those events occurred. The N Family said that no one went through any cupboards or made any demands or threats. They also said that N3 attended ELI's home alone or with his wife.[27]
[27] Submissions of APP attached to the application filed 6 January 2025.
In August 2023, Dr F noted that ELI's anxiety and fearfulness had improved as the N Family was not calling her anymore as the legal actions of the solicitors in April had prevented further contact.[28] In September 2023, ELI was still bothered by hallucinations of seeing children peering in through closed roller shutter blinds.[29] In November 2023, her visual hallucinations had become more frequent and she was complaining every day of seeing N1, N2 and N3 peering through her windows.[30]
[28] Dr F letter dated 4 August 2023.
[29] Dr F letter dated 13 September 2023.
[30] Dr F letter dated 15 November 2023.
While ELI's delusions and hallucinations about the N Family was driven by the dementia, the facts set out below demonstrate the basis for ELI's beliefs as follows:
(a)the N Family attempted to visit her multiple times in January, February and March 2023;
(b)the N Family sought legal advice from Main Legal in January 2023 about ELI's will;[31]
(c)N3 banged on the roller shutters and doors at ELI's Home, due to her hearing impairment, when he was attempting to visit her;
(d)N3 discussed the new will with ELI in January 2023, asked her what was in it and then attempted to obtain a copy of the new will from the Law Firm;[32] and
(e)the N Family questioned RB intensely when they saw her on 9 February 2023 about the level of supervision RB was providing, what ELI was eating, whether RB was receiving a carers pension, whether ELI gave RB any money and whether ELI had undergone an aged care assessment. They suggested that RB should get an alarm pendant for ELI, that ELI should attend respite care and that ELI would like to live in the residential aged care facility that her mother lived in. N1 reminded RB that NH wanted the N Family to take care of ELI which is why NH appointed N1 as the executor of his will.[33]
[31] Chronology.
[32] Letter from Main Legal to the Law Firm dated 26 April 2023.
[33] Submissions filed by N1 on 3 February 2025.
While the events set out above were experienced differently by the parties involved, they provide a basis to analyse the reasonableness of RB's actions at the time and whether she deliberately alienated ELI from APP and the N Family.
Conclusion
I consider that APP was an honest witness. APP spoke fondly of the time she spent with ELI as a small child and how they became closer over the years. APP acknowledged all the help RB had provided to ELI over the years and spoke of the trust she had in RB for many years, particularly in relation to caring for ELI.
In April 2023 when RB confided in APP about ELI's fears in relation to N3, APP was aware of the misalignment between the N Family's and RB's versions of events. APP reports that she started to become suspicious of RB but took no steps to investigate further and due to her own health issues, did not have contact with ELI or RB for the next 18 months. It is unfortunate that the opportunity was missed for APP to share with RB her knowledge of the N Family's version of events as some discussion or mediation may have resolved the matter at that point.
It is understandable, in my view, that APP was upset that she had lost touch with ELI, and did not believe that ELI would not want to have contact with her. However, APP made little or no attempt to spend time with ELI in the critical period when ELI's delusions and hallucinations started and she declined to the point where residential aged care was required. I accept that APP called and texted RB to attempt to reestablish contact but she did not visit ELI or RB at their respective homes when she did not hear back from them, so it is reasonable to conclude that APP was not concerned enough to do more than attempt telephone contact.
I do not accept APP's contention that RB alienated ELI from the family, deliberately withheld information or acted against ELI's interests. I am satisfied, based on the detailed evidence before the Tribunal, that RB has acted protectively towards ELI. I find that the actions taken by RB have consistently been in ELI's best interests and in accordance with her wishes. Dr F's letters provide evidence of RB's diligence in managing ELI's health and ensuring her attendance at medical appointments. RB succeeded in maintaining ELI's independence for as long as possible while also keeping her safe. APP was not aware of or involved in any aspect of ELI's care, which was managed singlehandedly by RB, in my view, to an exceptionally high standard.
It was canvassed at the hearing that RB had recently learned that when someone loses the capacity to make their own decisions, the guardian's role is to update family members and people important to the person with information about their welfare. Once a person has lost capacity, the guardian is required to make decision in their best interests, which might not always be in accordance with their wishes.
Conclusion
I am satisfied, and I find, that the EPG is an appropriate way for personal decisions to be made for ELI. I will dismiss the application to revoke the EPG and appoint a guardian.
I will next turn to discuss the EPA.
Is there a less restrictive option to make financial decisions?
An enduring power of attorney is usually considered less restrictive than an administration order if it was prepared at a time when the donor had capacity and could choose who they want to manage their finances.
ELI signed the EPA on 6 June 2019, which was consistent with the enduring power of attorney she signed in 2016, both of which appointed RB. The evidence is clear that ELI had capacity in 2019.
The statutory obligations of an enduring power of attorney are contained in s 107 of the GA Act, which provides:
107.Obligations of donee
(1)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[.]
Allegation of financial abuse and mismanagement
APP made the following allegations in respect of RB's management of ELI's finances:
(a)RB has withdrawn cash and not kept accurate records;
(b)RB has allowed ELI's money to be spent recklessly and limits should be put on the amounts spent; and
(c)RB has coerced and manipulated ELI for her own benefit in the present and the future.
It is important to note that before the Tribunal would scrutinise the actions of an enduring attorney, there must be something about the matter that requires an inquiry. As the Tribunal said in the decision in EW:[34]
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.
[34] EW [2010] WASAT 91 at [94].
As the Tribunal was not told where ELI was, this raised a serious concern about ELI's welfare and RB's judgment. In addition, bank statements for ELI's accounts were requested from RB and the copies filed with the Tribunal were incomplete and contained redacted information. When a full set of statements was sought directly from the bank, it was discovered that RB had used approximately $5,000 of ELI's money to pay the Law Firm to represent RB in the Tribunal proceedings.
I was satisfied that those matters provided a basis for the examination of all transactions and dealings by RB made in connection with the EPA. This is why APP was granted access to the financial documents that were filed with the Tribunal and was given the opportunity to ask questions about certain transactions.
APP analysed ELI's bank statements and contended that the amount ELI was spending on lunches and coffees was 'insane'. APP calculated that in May 2023, the total spend at cafes was $478. In June, it was $539. In July, $502. In August, $439. In September, $699.98, October, $678, and in November at $836.27. APP felt that this level of spending on cake and biscuits was wasteful and if she was managing ELI's funds, she would limit the amount spent. APP's view is that ELI should not be paying for RB's lunch and coffee, and ELI should not be purchasing petrol when she does not own a car. APP advised that she could find better interest rates when ELI's term deposits matured.
I accept that APP is acting protectively towards ELI, but I do not accept that ELI's funds have been mismanaged in any way. RB gave an acceptable explanation in relation to the cash withdrawals that APP questioned, which was to pay for hard-wired security cameras in late February 2023 just prior to ELI going into respite.[35] The petrol that ELI pays for allows RB to take ELI to all medical, dental and other appointments. RB also takes ELI out of the Nursing Home for coffee and/or lunch almost every day. Ms X explained that ELI has a very direct personality and does not want to be a burden on RB, so in exchange, she will insist that she pays for RB's coffee, cake and lunches.
[35] The Chronology filed by N1 notes that on 1 March 2023, new security cameras had been installed at ELI's Home.
RB impressed me, both as an honest and reliable witness and in her devotion to ELI. When RB became aware that she should not have used ELI's funds to pay her legal fees, she was apologetic and repaid the funds to ELI's bank account within days.
I have reviewed the bank statements and other documents filed with the Tribunal and could not find any transaction of concern, save for RB using ELI's funds to pay her legal fees, which she rectified almost immediately. I am satisfied that ELI's term deposits are earning adequate interest which provides her with a source of income. In terms of spending $500 to $800 per month on outings and entertainment, ELI is a self-funded retiree of significant means aged in her mid-90s. Her illness means that she has few pleasures in life, and while her health allows, using her funds to go out every day with her dearest friend and companion is not against her interests.
Allegation of coercion
APP has alleged that RB coerced ELI for several years and alienated ELI from the family in order to increase the inheritance she would receive. APP says that the evidence of coercion is that the will ELI signed in August 2022 increased the gift to RB and correspondingly decreased the gifts to APP, N1, N2, N3 and N4.
I am not satisfied that ELI was coerced into changing her will for two reasons. The first is due to the detailed evidence of ELI's capacity to change her will. Dr F met with ELI in May, June and July 2022 to assess her capacity to change her will. On 29 July 2022, Dr F noted that she scored 24 out of 30 on a mini-mental state exam and she recalled their earlier discussions sufficiently and with enough clarity for Dr F to declare that she had the capacity to alter her will. Dr F is qualified to assess whether or not ELI has the required capacity and I accept his evidence.
Further, whether or not a person has the capacity to make a will is a legal test to be determined by a solicitor, and ELI's solicitors also deemed her to be capable of signing a new will.
Second, as set out earlier, ELI had attended upon the same Law Firm for 10 years when the new will was signed. She had previously signed wills in 2012, 2015 and 2019. The continuity of the relationship with her solicitors means that they know her well and would identify if there was anything about the changes she sought to make to her will that would give rise to a concern that she was not acting independently or being coerced.
Conclusion
I am satisfied that RB has exercised reasonable diligence to protect ELI's interests and has kept accurate records and accounts. I am satisfied that RB has not financially abused or coerced ELI in any way.
I am satisfied, and I find, that the EPA is an appropriate way for ELI's finances to be managed.
I will dismiss the application to revoke the EPA and appoint an administrator.
Orders
GAA 63/2025
The Tribunal makes the following orders:
Administration
1.The application is dismissed.
Guardianship
2.The application is dismissed.
GAA 471/2025
The Tribunal orders:
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
15 AUGUST 2025
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