ES
[2017] WASAT 34
•22 FEBRUARY 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: ES [2017] WASAT 34
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 12 OCTOBER 2016
DELIVERED : 22 FEBRUARY 2017
FILE NO/S: GAA 3075 of 2016
GAA 3076 of 2016
MATTER: ES
Represented Person
Catchwords:
Guardianship and administration Enduring power of attorney Enduring power of guardianship Conflict in evidence concerning capacity Duty of an attorney to keep and preserve records and exercise their powers with reasonable diligence to protect interests of donor Question of how that obligation should be interpreted in a familial relationship is not necessarily straightforward Person responsible provisions in the making of treatment decisions
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1), s 44, s 45, s 64(1), s 68, s 69, s 84, s 97(1)(b)(iii), s 107, s 108(1), s 108(1a), s 110N(1)(a), s 110ZD, Pt 9C
Result:
Applications for appointment of a guardian and administrator are dismissed
Enduring power of guardianship revoked
Summary of Tribunal's decision:
ES is a 97yearold woman who resides in a nursing home.
ES has two children, a son JS and a daughter, PS.
ES had appointed JS as her attorney under an enduring power of attorney and guardian under an enduring power of guardianship.
PS made applications to the Tribunal for revocation of the enduring power of attorney and enduring power of guardianship and the appointment of a guardian and an administrator of the estate of ES.
The principal asset held by ES was a property in Western Australia. She also had substantial bank funds.
PS alleged that JS was managing the estate of ES under the enduring power of attorney largely for his own benefit because in particular he had not sold ES's property to pay for an accommodation bond but had decided to use the income of ES to pay interest on the unpaid bond amount.
ES had made a number of wills over the years and in 2014 PS became aware of a will ES made in 2000 which left the major part of her estate including the property to JS. The most recent will prior to the one made in 2000 bequeathed the estate in equal shares to JS and PS.
PS proposed that the Public Trustee be appointed the administrator of the estate of ES. She further proposed that she be appointed the guardian for ES regarding her medical decisions because JS lived outside of Western Australia.
The way in which ES intended to deal with her estate upon her death was not a matter for the Tribunal other than the allegation made by PS that JS had been managing the estate of ES through the enduring power of attorney to protect his inheritance rather than in her current best interests.
The Tribunal did not accept the allegation made by PS.
The Tribunal dismissed the application for an administration order permitting the enduring power of attorney to continue to operate.
The Tribunal revoked the enduring power of guardianship because JS had unilaterally changed the instrument by adding PS as guardian in an attempt to have PS be part of the formal decisionmaking around ES's personal matters.
The Tribunal decided that a guardianship order was not required and that both PS and JS could act under the person responsible provisions of the Guardianship and Administration Act 1990 (WA) on the basis that despite their differences they would communicate should any significant medical decision need to be made for ES.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
GC and PC [2014] WASAT 10
KS [2008] WASAT 29
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
ES is a 97yearold woman who resides in a nursing home.
ES has two children, a son, JS and a daughter, PS.
On 20 April 1993, ES made an enduring power of attorney appointing JS as her sole attorney.
On 25 January 1996, ES made another enduring power of attorney appointing JS as her attorney. JS declared that the instrument could begin to operate immediately on execution and acceptance. The enduring power of attorney was filed with the Registrar of Titles on 2 February 1996 (EPA).
On 26 October 2012, ES made an enduring power of guardianship appointing JS as her enduring guardian (EPG). It was accepted by JS on 18 December 2012. JS with the approval of PS added PS to the EPG as an additional guardian so that the instrument became a joint appointment. The change was not made by ES.
In August 2016, PS filed three applications with the Tribunal pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act).
The applications are for the appointment of a guardian for ES, the appointment of an administrator of her estate and an application for the revocation of the EPG.
The applications were referred to the Public Advocate pursuant to s 97(1)(b)(iii) of the GA Act.
The applications were heard on 12 October 2016 and the hearing was attended by ES, JS, PS and other family members and a representative of the Public Advocate (Public Advocate).
The decision was reserved.
The relevant legislation
The primary concern of the Tribunal is the best interests of ES: s 4(2) of the GA Act.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of ES as expressed, in whatever manner, at the time, or as gathered from ES's previous actions: s 4(7) of the GA Act.
ES is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for ES unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of ES unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to ES, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of ES can be met in a manner less restrictive of her freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
If the Tribunal decides that ES is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of ES then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on ES: s 4(5) and s 4(6) of the GA Act.
Section 107 of the GA Act sets out the obligations of an attorney under an enduring power of attorney. The attorney shall exercise their powers with reasonable diligence to protect the interests of the donor or and, if they fail to do so, are liable to the donor or for any loss occasioned by the failure: s 107(1)(a). An attorney shall keep and preserve accurate records and accounts of all dealings and transactions made under the enduring power of attorney: s 107(1)(b). An attorney may not renounce a power during any period of legal capacity of the donor and shall, if the attorney becomes bankrupt, report that bankruptcy to the Tribunal: s 107(1)(c) and s 107(1)(d) of the GA Act.
If an administration order is made the Tribunal can revoke or vary an enduring power of attorney: s 108(1) of the GA Act. If an administration order is made and the continued operation of an enduring power of attorney would be inconsistent with the functions of the administrator the Tribunal must revoke the power or vary the enduring power of attorney to remove the inconsistency: s 108(1a) of the GA Act.
Under s 110N(1)(a) of the GA Act, the Tribunal can revoke an enduring power of guardianship.
Under the 'person responsible for patients' provisions of the GA Act (Pt 9C), the person responsible may make a treatment decision for the patient if the patient is unable to make reasonable judgments in respect of the proposed treatment. The person responsible is considered to be the first person in order of priority, the order of priority being, a spouse or de facto partner of the patient, a nearest relative of the patient (spouse or de facto partner, child, parent, sibling), a person who is the primary provider of care and support (including emotional support) to the patient, but is not remunerated for providing that care and support and any other person over the age of 18 years who maintains a close personal relationship with the patient: s 110ZD of the GA Act.
Medical and allied health reports
The Tribunal has before it a report from the general practitioner Dr WK who has attended to ES for 14 months.
Dr WK states that ES has been diagnosed with frontotemporal dementia and this was first noted by him on her arrival at the nursing home.
Dr WK states that the dementia is a progressive condition and opines that ES has no insight into her problems and is incapable of making personal and financial decisions. Dr WK is unsure whether ES retains the capacity to make an enduring power of attorney but is of the view that she is incapable now of making an enduring power of guardianship.
ES underwent a cognitive skills assessment on 21 April 2016 by an occupational therapist (Psychogeriatric Assessment Scales). The assessment instrument, which is before the Tribunal, notes 'very minimal cognitive impairment'.
In a report from the Facility Manager of the nursing home, the diagnosis of Dr WK is noted. The Facility Manager states that ES remembers the names of staff and knows when there is new staff. She continues to ask for what she wants until she gets her needs met to her satisfaction. ES is said to follow instructions if she wants to do what is required. She can converse sensibly, spontaneously and appropriately.
The Facility Manager states that ES knows when she needs money for new clothes. She states that according to PS, ES would be unlikely to be able to manage large amounts of money.
In respect to personal matters the Facility Manager is of the view that ES knows where she wishes to live, what services she wants to receive and that she would hold an opinion on what medical treatment she should have.
The Facility Manager states that PS visits regularly, and JS who lives outside of Western Australia, visits periodically. PS is reported to attend to the daytoday needs of ES including pharmacy liaison and taking ES to appointments as required. When JS visits he takes ES on outings. In addition a person from a carers organisation visits ES.
The case presented by PS
PS filed a written submission with the Tribunal and gave oral evidence.
PS states that she has cared for ES for the past 16 years including involvement in the provision of care when ES was still living in her home. PS states that she would often act as a buffer between ES and the agency providing care because of ES's difficult personality.
PS states that ES suffered a number of transient ischaemic attacks in October 2013 and again in March 2014. In May 2014, ES was hospitalised with a urinary tract infection that caused a delirium. From hospital, ES went into a transitional care placement and ultimately into the nursing home in June 2014 where she continues to reside.
PS states that she sent all of the relevant information to JS regarding a nursing home placement and it was agreed the nursing home was suitable for ES.
At the time PS says that she advised JS she would need an enduring power of attorney and enduring power of guardianship to deal with ES's affairs. JS is reported to have said that an enduring power of attorney was not required because it would take six months to have it registered with Landgate (Registrar of Titles) and further that he was the enduring guardian for ES under the EPG.
In respect to the EPG, PS states:
He [JS] typed my name in there and gave my address and then at the top of the acceptance he put my name in there on her typewriter and said, 'Just sign here'. So I signed this guardianship document that he had been that he had got. Because I know now that it wouldn't have held its held any water because it wasn't the original. (T:1415; 12.10.16)
PS states that there had never been any discussion with JS regarding guardianship for ES.
The initial view of PS is that ES is able to make her own personal decisions. She states:
She hasn't lost capacity. She knows exactly what's going on. (T:16; 12.10.16)
However, PS then states that she receives numerous telephone calls from the nursing home concerning ES's medication 'or anything like that required'. PS says that she deals with the relevant pharmacy and will arrange ES's medication scripts and she has directed the pharmacy not to dispense any medication unless contact has first been made with her (T:1617; 12.10.16). She also says that the nursing home asks that she give consent to ES having her eyes tested for reasons that are not clear other than ES cannot sign 'properly any more. Her signature is very wispy and unsteady' (T:17; 12.10.16).
When presented with the diagnosis of Dr WK that ES has dementia, PS states that she does not believe that ES can make her own medical decisions and that in those circumstances ES would defer to JS immediately.
PS states that there is no intention of moving ES from the nursing home in which she currently resides.
PS proposes that she be appointed the guardian for ES because:
Well, I've been here for the last 16 years doing all those medical decisions and making decisions for her. (T:20; 12.10.16)
In regards to the estate of ES, PS states that ES owns the property in which she used to live (property). She says that when ES was admitted to the nursing home she became liable to pay an accommodation bond of $420,000 (bond). PS says that she thought that the property would need to be sold to pay for the bond but was advised by JS that was not necessary and that the interest on the unpaid portion of the bond could be met from ES's funds.
PS states that an initial payment of $25,000 was made against the bond which left a balance of $395,000 which accrued interest at a rate of 6.8% per annum.
PS says that she was unaware of the rationale behind the decision to pay interest on the bond and she did not discuss this with JS or ES. She says that she was not opposed to that decision at the time.
PS states that she became concerned with the decision not to sell the property when in around the middle of 2014 she came across a particular will that ES had purportedly made in 2000.
ES appears to have made a number of wills over the years and the Tribunal has before it copies of three wills.
The first which was purportedly signed by ES on 12 March 1988 and gives the whole of her estate to JS and should he not survive her then her estate would go to PS (first will).
The next will was purportedly signed by ES on 30 January 1989 (second will) in which ES gives her estate in equal shares to JS and PS. Should JS or PS predecease ES then the survivor receives the whole of the estate.
PS states that the first will was made soon after the death of ES's spouse and the second will was made when ES visited PS in South Africa.
In respect to the second will, PS states that JS contacted her in 1998 to say that he had concerns about it because there was no inclusion of the extended family of the beneficiaries. JS is reported to have said that he wanted an agreement made between he and PS that would deal with this matter (agreement).
An unsigned copy of the agreement which is before the Tribunal provides that in the event that either of the beneficiaries (PS and JS) are the surviving beneficiary upon the death of ES they will pay 50% of the estate to the nominated family members of the deceased beneficiary. PS says she signed her part of the agreement and sent it to JS. She says that she did not pursue the matter further and never received a copy of the completed agreement.
The third will (undated and unsigned) which PS states that she found on a computer disk purportedly belonging to JS and formatted in September 2000, states that JS is to receive the property, motor vehicle and bank accounts with the remaining assets and monies to be shared equally between JS and PS (third will). It states that if JS predeceases ES, his share of the estate will go to his marriage partner and children. The same applies to that part of the estate which is bequeathed to PS.
Both PS and JS are appointed joint executors in the three wills.
In viewing the third will, PS states that she concluded that the reason the property was not sold was because it is a direct bequest to JS. She says that at some point in time JS had alluded to a discussion about the property and the third will just after ES had entered the nursing home. ES had made it known that she was giving JS the property upon which PS says that she phoned JS. JS is reported to have said that ES was always changing her mind and that he did not have a copy of the third will which was with legal representatives.
In a written submission to the Tribunal, PS alleges that JS coerced ES into writing the third will and she was told by JS's spouse that they had been counting on the inheritance.
PS contends that ES would be better off financially now if she had sold the house because from the time she went into hospital right through until December 2014 the property was empty and there were ongoing costs incurred for such things such as rates, utilities and gardening.
PS states that the property was tenanted from January 2015 but maintains that ES would not be liable for the extra property costs such as land tax and rates if the property was sold and she believes that ES's cash funds will soon be depleted. She states her understanding that the cash funds currently amount to about $65,000.
PS states that if she had control of the financial affairs of ES she would sell the property.
PS states that she is aware that the nursing home fees and interest on the bond which in total approximates $5000 per month is paid uptodate.
PS alleges that JS has used the funds of ES for his own purposes. She points to a number of debits on bank statements that she has relating to the bank accounts of ES. Bank statements from 2014 show an account in the name of ES and JS and bank statements from February 2016 to June 2016 show the same account number in the name of ES only.
PS states that for a period she had bank statements sent to her address but at times that became irregular upon which she asked ES to contact the bank.
PS states that ES authorised her to have access to internet banking in May 2015 but this was cancelled by JS in September 2015. For a period she would withdraw $600 a month as a cash float for ES at the nursing home.
PS states that she still has the bank ATM card for ES which she uses to pay the pharmacy account.
PS nominates a number of transactions as examples of where JS has inappropriately used the funds of ES. The transactions are:
| 16 May 2014 Coles (WA) | Purchase $36.17 | Cash $100 |
| 26 May 2014 Coles (WA) | Purchase $15.19 | Cash $50 |
| 2 June 2014 Coles (WA) | Purchase $33.18 | Cash $100 |
| 3 June 2014 Coles (WA) | Midas Car Care | $125 |
| 5 June 2014 Coles (WA) | Cash | $100 |
| 11 June 2014 ATM | Reimbursement of car services | $1,675 |
| November 2014 ATM | Cash | $700 |
| 25 August 2014 Coles (Canberra) | Cash | $300 |
| May 2016 JS's spouse | Reimbursement for clothes | $535 |
PS maintains that the reimbursement for clothes and makeup amounting to $535 in May 2016 is effectively ES paying for her own birthday presents, her birthday being on 14 May.
PS alleges that when JS comes to Western Australian to visit ES, he consistently uses the funds of ES for his personal use. She says she has totalled the cash withdrawals for 2014 as $3076 and $470 in 2015.
In addition, PS states that JS reimbursed himself $4,300 in May 2015 for all the expenses of visiting ES for the years 2014 and 2015, including airfares and taxis.
PS states that she started looking into the bank withdrawals in about November 2014 when the cash withdrawal of $700 occurred. She says that she queried JS who could not provide her with proof of receipts and she says that he became quite upset at her querying the withdrawal.
When asked why she is now bringing attention to these withdrawals rather than at the time they were incurred JS states:
… Because I didn't think it was I thought, okay, fine, but I was keeping monitoring it. But my main objection was the fact that on this May, this year when he knew when he used 525 55 dollars of her money to pay for her presents, that I thought was absolutely despicable. (T:40; 12.10.16)
PS states that she first alerted ES to her concerns 'probably after 2014' and ES's response was reported as being that she perhaps allowed JS to do it. PS says that ES would not have had any inkling of what JS was 'doing with her money (T:42; 12.10.16).
PS makes reference to a motor vehicle owned by ES. She states that JS keeps the vehicle solely for his use when he comes to visit ES, incurring more costs to the account of ES. She alleges that JS keeps the motor vehicle maintained at no cost to him so he can inherit it when ES dies.
In 2014 when ES was admitted to the nursing home, the view of JS is that ES was capable of running her affairs and knew exactly what she was doing with her money, however JS took over the financial management and ES trusted him.
PS submits that the Public Trustee should be appointed the administrator of the estate of ES.
The case presented by JS
JS filed a written submission with the Tribunal and gave oral evidence.
JS states that since the death of his father he has been discussing finances with ES. He says that he has done what ES has wanted including not selling the property.
JS states that ES was quite clear in her wish that the property not be sold and that she would rather it stayed in the family for 'all generations' (T:47; 12.10.16). In his written submission JS provides a copy of a text message to the granddaughter of ES dated 16 August 2015 stating that ES had wanted to see the property and he had done that for her.
JS says that he has discussed with ES the costs associated with not selling the property and she has maintained a preference for its retention.
JS states that PS's spouse, MS, told him that their financial advisors supported the retention of property when that decision was being made.
JS confirms that the property has been rented from January 2015.
JS states that he does not accept the diagnosis of Dr WK and believes that ES is capable of making her own decisions with reference to the report from the Facility Manager and the occupational therapy assessment. JS contends that the report of Dr WK is inconsistent when assessing ES as being incapable of making simple or complex financial decisions but expressing the opinion as 'unsure' in being able to execute an enduring power of attorney.
JS says that he has not been specifically asked by the nursing home to give consent to medical procedures for ES. He states that he has received a letter regarding having her eyes tested but in those sorts of instances he would speak to ES about whether she wanted the testing done and that is the process he undertakes with related decisions.
JS states that the reason ES went into the nursing home in 2014 was due to a fall sustained as a consequence of a urinary tract infection. Since then she has not had similar falls. JS states that ES goes for walks with a walker mostly because she knows she needs the exercise.
In his written submission JS states that ES is frail, hard of hearing, needs assistance with mobility, ablutions and making meals but has not lost her mental capacity.
In respect to the current financial position of ES, JS states that there is $81,592 in the joint bank accounts. He says that he has been a joint holder of the accounts for about 16 years and that his mother wanted this arrangement because when her spouse died the bank accounts were frozen and she could not access any funds for about nine months.
When asked whether he considered the funds in the joint accounts as much his as belonging to ES, JS states:
That's correct. … I'm on there so that when she dies I can manage her funeral expenses and everything else without being hindered by a bank account being closed. (T:50; 12.10.16)
JS states that currently ES's average monthly income is $8,114 and her average monthly expenditure is $7,223 giving a surplus of $891 per month.
The monthly income of ES comprises an overseas service pension of $5,428, a veterans' affairs pension of $520, rent from her property of $2,000 and bank interest of $166. The bulk of the monthly expenditure is paid to the nursing home for bed fees and interest on the bond which amounts to about $5,500.
JS contends that ES's income allows her to quite easily maintain her current level of expenditure.
In respect to the individual transactions presented by PS, JS states as follows.
JS says that he sent PS the receipts evidencing the expenditure of the $700 of cash withdrawn in November 2014, however the registered envelope was returned to him unopened (PS states that she did receive an envelope and opened it).
In a letter he says he wrote to PS dated 27 January 2015, JS questions the $600 a month withdrawn from the bank account of ES by PS he says without providing receipts for any expenditure. In the letter he proposes to PS that they each approve any reimbursement to the other for expenditure made on the production of supporting receipts.
Also in the letter dated 27 January 2015, JS states that he undertook an audit of the expenditure he made on behalf of ES and had concluded that he was owed $4300 the receipts of which he says he provided in the envelope that was subsequently returned unopened.
The reimbursement of $535 to JS in May 2016, which PS says was ES paying for her own birthday presents, JS states was not the case and that ES had asked for new clothes and makeup which he arranged.
As regards other cash withdrawals detailed by PS, JS states that when ES was admitted to the nursing home it was expected that PS and MS would maintain the property but this did not happen for a period and before setting up an account payment he would pay contractors such as lawn mowing and maintenance in cash. In addition, cash would be used to pay for the outings on which JS says he took ES when he visited her including petrol for the car.
As for the concerns raised by PS regarding ES's motor vehicle, JS states as follows.
The initial agreement was that ES's granddaughter would use the motor vehicle to keep it roadworthy. At a point in time the granddaughter did not pay for the registration or the insurance for the motor vehicle and it sat in her front garden for three months. JS states he subsequently took control of the car and it has since been garaged by the 'gardener friend' of ES.
JS states that he purchased a mobile phone for ES but this was ultimately taken by PS and is being used by her.
JS states that the ATM card that PS holds belongs to ES.
JS submits that he has been effectively and efficiently managing the estate of ES and should be able to continue to do so under the EPA.
JS states that it was 'unwise of me' to put PS on the EPG but did so as a response to the carping from PS not being in a formal decisionmaking role. He submits that as far as personal decisionmaking for ES is concerned that the current arrangement should remain in place (T:60; 12.10.16).
The Public Advocate
The Public Advocate provided a report to the Tribunal and gave oral evidence.
The Public Advocate interviewed ES on 3 October 2016.
ES told the Public Advocate that PS had gone 'overboard' in making the applications and that they were unnecessary. ES is of the view that she is in control of her lifestyle and financial decisions and that is the way she wishes things to remain. She is happy with her accommodation and does not want anyone else interfering in her life. She is satisfied that the EPA and EPG are working in her best interests and she wants nothing to do with changing or replacing the documents.
In her oral evidence, the Public Advocate reiterates the wish of ES that JS continues to manage her affairs and that if she wants something done she contacts him and he will make a time to visit Western Australia to see her about the particular matter. The Public Advocate states that ES told her that she appreciates PS visiting her and taking her to her appointments but other than that she relies on JS as the 'man' of the family (T:64; 12.10.16).
The Public Advocate submits that the applications made by PS should be dismissed.
Discussion of the issues
The applications by PS have been made in somewhat unusual circumstances in that the concerns she has raised with the Tribunal about the management of ES's finances have largely been known to her since sometime in 2014.
PS became aware of the third will in 2014.
It seems that the ultimate trigger for applications was the view formed by PS that in about May 2016, JS reimbursed himself from the estate of ES for the purchase of her birthday present. That perhaps was the 'last straw' for PS.
However it seems to me from the evidence that the fundamental issue raised by PS has its genesis in the way ES purportedly distributes her estate in the third will.
The way in which ES intends to deal with her estate upon her death is not a matter for the Tribunal other than the allegation now being made by PS that JS has been managing the estate of ES through the EPA to protect his inheritance rather than in her current best interests.
I do not accept the allegation made by PS for the following reasons.
It is common ground that the decision to retain the property was made in the middle of 2014 when ES was admitted to the nursing home. PS does not dispute the evidence of JS that it was the wish of ES at the time that the property not be sold and PS had no objection to that decision when it was initially made.
I accept that the financial decisions that must be made when a person enters a nursing home and becomes liable for an accommodation bond or something similar, involve consideration of both financial and personal matters.
The evidence of JS is that the income of ES has been and continues to be sufficient to meet her expenditure. ES has substantial funds in her bank accounts. This evidence of JS is not disputed by PS.
As to the ownership of the bank accounts which are jointly held by ES and JS, it is common ground that this arrangement commenced 16 years ago when both PS and JS agree that ES was fully capable of making her own decisions.
PS has detailed a number of individual transactions which she says are evidence that JS is using the funds of ES for his personal use.
An attorney must be cautious as to deciding what expenditure should be paid from the estate of a donor for reimbursement of expenses incurred by the attorney, in light of the requirement under s 107 of the GA Act to act with reasonable diligence to protect the interests of the donor and in circumstances where the attorney and donor are related. The question of how this obligation should be interpreted in a familial relationship is not necessarily straightforward (KS [2008] WASAT 29 at [56]).
I accept in the case of ES that because a major asset (the property) is in Western Australia and JS as attorney lives outside of the State, that from time to time in his capacity as attorney he would need to inspect the property to ensure that it is being maintained and to deal with related matters including discussions with ES to the extent that remains possible.
I am not satisfied that the transactions highlighted by PS show anything materially untoward in the management of the estate of ES by JS.
PS is seeking the appointment of an administrator of the estate of ES and the revocation of the EPA.
Before an administration order can be considered the Tribunal must find that by reason of a mental disability, ES is unable to make reasonable judgments in respect of matters relating to all or any part of her estate: s 64(1)(a) of the GA Act.
There is a conflict in the evidence of the capacity of ES to make reasonable judgments about her financial affairs. Dr WK has diagnosed ES with dementia but on the basis it appears that it was first noted by him when ES was admitted to the nursing home. However, he makes no reference to any formal diagnosis by a specialist medical practitioner. The assessment of Dr WK is somewhat at odds with the evidence of PS, JS and the Public Advocate as to the ability of ES to understand her situation and give capable expression to her wishes.
It must be remembered that ES is 97 years of age. However, neither her age nor her alleged deferral to JS is of itself evidence of incapacity.
The Tribunal must have clear and cogent evidence to rebut the statutory presumption of capacity in s 4(3)(d) of the GA Act (GC and PC [2014] WASAT 10 at [36]).
Ultimately I do not need to resolve the question of capacity of ES in the context of the making of an administration order because I have decided that for the reasons already given it is in her current best interests for the EPA to be permitted to continue to operate.
I therefore dismiss the application for the making of an administration order.
PS is also seeking revocation of the EPG and the appointment of herself as the guardian of ES to make treatment (medical) decisions.
I agree with JS that it was unwise of him to alter the EPG as a means by which PS could be included in the personal decisionmaking for ES. In the circumstances it may have been open for ES to make a fresh EPG if she was considered to have the capacity to do so. However, in my view, by altering the EPG, JS has effectively invalidated the instrument.
I will therefore order that the EPG be revoked.
Both JS and PS (and for that matter ES) agree that the nursing home in which ES resides is appropriate and that her accommodation does not need to change.
It seems to me that the only ongoing decisions of a personal nature which may require formal authority depending on the capacity of ES at the time is that of her treatment decisions. It appears from the evidence that both PS and JS have had input into the health care and medical needs of ES.
It is the case that ES has expressed a wish through the EPG that JS make her personal decisions. However in a practical sense, PS is 'on the ground' and can respond quickly to any healthrelated situation that may arise for ES.
Despite the obvious tension between PS and ES which it appears relates largely to financial matters, I am satisfied that they both have the best interests of ES at heart when considering her care and health needs.
I am also satisfied that should there be the need for a significant medical decision to be made, then PS and JS will communicate to ensure that a 'family' decision is made for ES.
I therefore find that there is no need for a guardian to be appointed for ES and that the matter of her treatment decisions can be dealt with under the person responsible provisions of the GA Act (s 110ZD). This has the effect of allowing both JS and PS to have input into treatment decisions for ES should she not be capable of making a particular medical decision when that arises.
On that basis I will dismiss the application for the making of a guardianship order.
Orders
The Tribunal makes the following orders:
GAA 3075 of 2016:
1.The administration application is dismissed.
2.The guardianship application is dismissed.
GAA 3076 of 2016:
In relation to the enduring power of guardianship dated 26 October 2012 made by [ES] ('the appointor') appointing [JS] as her enduring guardian, the Tribunal declares and orders:
1.The enduring power of guardianship is revoked.
I certify that this and the preceding [138] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER