ET - [2021] WASAT 36 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   ET [2021] WASAT 36
MEMBER:   MR J MANSVELD, SENIOR MEMBER
HEARD:   8 AND 9 OCTOBER 2020
DELIVERED          :   15 MARCH 2021
FILE NO/S:   GAA 3589 of 2020

ET
Represented Person

Catchwords:

Guardianship and administration - Application for appointment of administrator - Enduring power of attorney - Application for revocation of enduring power of attorney - Application to require attorneys to file records and accounts - Allegation that attorneys have not acted in donor's best interests - Allegation that one of attorneys intermingled his roles as attorney and donor's solicitor - Costs agreement - Enduring power of guardianship - Enduring guardian to decide where appointor is to live and level of care she is to receive - No challenge to role of enduring guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 107, s 107(1), s 109(1)(a), Pt 6, Pt 9

Result:

Application for appointment of administrator dismissed
Application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) to be referred to a directions hearing

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Charlton v Baber [2003] NSWSC 745
KS [2008] WASAT 29
Public Trustee v Blackwood (1998) 8 Tas R 256

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

ET is 92 years of age. At the time of the Tribunal proceedings she remained living on her farm with full-time care and with the assistance of her long-time farm worker, DG.
ET has extensive farming interests, rental properties, and blocks of land and bank funds.
ET is a widow. She has three daughters, DS, MH and LH. MH and her spouse, RH operate one of the farms under an arrangement detailed in the body of these reasons.
On 17 December 2015 ET executed an enduring power of attorney appointing MH and LH jointly and severally with DS as the substitute attorney (apparently a then existing enduring power of attorney appointing MH solely was revoked) (2015 EPA).
On 20 April 2016 ET executed an enduring power of guardianship appointing DS and LH (2016 EPG).
On 2 July 2018 MH and DS made applications for the appointment of a guardian for ET and the appointment of an administrator of her estate (2018 applications).
It was proposed that MH and DS be appointed joint administrators and LH and DS as joint guardians.
The 2018 applications were made pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
On 24 July 2018 MH and DS sought the leave of the Tribunal to withdraw the 2018 applications which was granted on 24 August 2018.
On 16 July 2018 ET revoked the 2015 EPA and the 2016 EPG.
On the same day she made another EPA and EPG.
She appointed her solicitor CR and the spouse of her niece, MW as joint and several attorneys (2018 EPA). The attorneys were directed to account to ET's daughters for their actions on an annual basis commencing 12 months after the date of the instrument.
Also on 16 July 2018, ET entered into a costs agreement with CR which purported to include the basis on which fees would also be charged for acting as attorney, namely at the rates set out in the costs agreement (letter by CR to ET dated 13 July 2018) (costs agreement).
ET appointed LH as her enduring guardian with the authority to make specified decisions should she lose capacity (evidenced by statutory declarations by two medical practitioners) (2018 EPG). Although not entirely clear on the face of the document the specified decisions appeared to be those concerning ET's accommodation (whether permanent or temporary) and with whom she should associate.
On 17 June 2020 MH filed with the Tribunal an application under s 109(1)(c) of the GA Act seeking revocation of the 2018 EPA but in the body of the application also seeking orders as follows:
1)an order under s 109(1)(a) of the GA Act requiring the attorneys to disclose copies of all records and accounts kept by them in relation to the dealings and transactions made in connection with the power including the cost agreement and every invoice raised in connection with the 2018 EPA; and
2)an order appointing the Public Trustee as administrator of ET's estate.
By way of directions made on 7 July 2020, the Tribunal accepted the applications to be determined as follows:
a)an application for the appointment of an administrator of ET's estate and the revocation of the 2018 EPA; and
b)an application under s 109(1)(a) of the GA Act requiring the attorneys to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the attorneys of dealing and transactions made by them in connection with the power.
By way of further directions made on 4 August 2020, the attorneys were required to file and serve a copy of every invoice issued by CR's legal firm in connection with the 2018 EPA.
Orders were also made for the parties to file submissions and witness statements.
The proceedings took place over two days on the 8 and 9 October 2020 and the decision was reserved.

Relevant legislation

The making of an administration order is dealt with in Pt 6 of the GA Act and Pt 9A for matters concerning an EPA.
The principles to be observed by the Tribunal in dealing with proceedings under the GA Act are set out in s 4.
The primary concern of the Tribunal is the best interests of ET.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of ET has expressed, in whatever manner at the time, or as gathered from her previous actions.
ET is presumed to be capable making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.
The Tribunal cannot consider appointing an administrator of the estate of ET 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 the GA Act to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to ET the Tribunal must further determine whether she is in need of an administration order. If the needs of ET can be met in a manner less restrictive of her freedom of decision and action then orders should not be made.
If the Tribunal decides that ET is in need of an administration order it must then decide what authority should be given to the administrator, who should be appointed administrator and what review date should be set, given the requirement that orders must be reviewed at least once every five years.
If a limited administration order is made the order must place the least restriction necessary on ET.
In respect to an EPA s 107 relevantly provides:
(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[.]
Section 109(1)(a) of the GA Act provides:
(1)A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order
(a)requiring the donee of an enduring power of attorney to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in connection with the power;

Preliminary comments

This proceeding involved two days of hearings which is unusual in the jurisdiction of the GA Act.
Detailed evidence was given in respect to the conduct of the attorneys (CR in particular) and family members (MH and RH in particular).
Submissions were made as to the roles of CR as ET's solicitor and attorney, the alleged mixing of those roles, the fees charged and the implications as to CR's continuing role as attorney.
By the time the Tribunal proceedings took place in October 2020, the areas of dispute and conflict concerning the care of ET and the management of her estate had endured over some years. The position of the parties and their views of each other were substantially fixed.
As will be seen below it had become common ground that ET was no longer in a position to direct the management of her farm or to make decisions regarding her estate.
What was also common ground and of some importance in the context of the applications was that ET was receiving full-time care in her home on the farm and that it had been her wish to stay on the farm for as long as possible.
MH had accepted that ET wanted LH to be her enduring guardian; that she had been properly appointed and she had done a god job in that role (ts 245, 9 October 2020).
For the sake of clarity and to give a coherent structure to these reasons I will deal with the evidence in discrete (but inevitably overlapping) sections. They are:
1)the 2018 applications
2)ET's capacity
3)ET's estate
4)the succession plan
5)the making of the EPAs and EPGs
6)ET's relationship with her daughters (and others)
7)the lease of the farm which MH and RH operate (the R farm)
8)the alleged stolen cash and the polygraph testing (and associated matters)
9)ET's evolving care needs including the impact of the COVID-19 pandemic
10)CR's conduct as attorney and solicitor for ET including the costs agreement and the role of the attorneys under the 2018 EPA
11)disposition of the applications

The 2018 applications

It is instructive to refer briefly to the 2018 applications if only to give some historical perspective to ET's circumstances as then identified by MH and DS. The application form is before the Tribunal in the Applicant's Bundle of Documents (ABOD) at pages 12 to 22.
In addition to questioning ET's capacity, MH and DS alleged erratic, paranoid and aggressive behaviour of ET towards them and that ET refused support services.
MH and DS pointed to a 'significant person in our mother's life that (sic) has been grooming her and taking advantage of her frail and vulnerable state of mind' (ABOD page 16).
MH and DS also referred to a succession plan the progress of which involved the division of farms and livestock between the three daughters (see below).
At around the time of the applications MH said that ET was upset about the succession plan and that she wanted to control different aspects of the plan.
MH and DS considered the family to be in crisis.
CR stated that he was instructed by ET to oppose the 2018 applications.
In the request for leave to withdraw the 2018 applications filed with the Tribunal on 24 July 2018, MH and DS noted that ET's lawyer (CR) and their cousin (MW) had been appointed attorneys and LH as enduring guardian.
In her oral evidence in the current proceeding MH said that CR had threatened to spend $50,000 of ET's money to discredit her if the applications were not withdrawn. She said he also threatened to have MH and DS disinherited.
CR disputed MH's evidence other than he said the 2018 applications would cost ET a lot of money, up to $50,000 given she was going to fight the applications. CR said that he also warned that family relations would suffer if the applications proceeded.
MH stated that the applications were withdrawn because she did not want to fragment or destroy the family and that she and DS would 'just go with what mum wants' (ts 23, 9 October 2020).
Referring to an email sent by MH to CR on 23 July 2018, where she stated that she was thankful for the positive changes that had occurred, notifying of her intention to withdraw the applications and that ET's health and safety were in good hands, MH said that she just wanted to move forward and to show CR her support which was genuine.

ET's capacity

For these proceedings, the Tribunal had sought and received a report from Dr TM, geriatrician.
Dr TM's report was dated 12 August 2020 (Medical Report) and included letters sent to Dr JK, ET's general practitioner (GP). Those letters were dated 16 July 2018, 26 July 2018, 30 November 2018 and 13 November 2019 (letters to the GP).
In the Medical Report Dr TM stated that ET had been diagnosed with dementia. He had formed the view that ET was incapable of making reasonable decisions for simple financial matters although probably ok for simple purchases, incapable for complex financial decisions and legal matters, unsure as to ET's capacity to give consent to her medical treatment and incapable of making reasonable decisions concerning her accommodation and support needs. ET was said to be able to express an opinion but not to understand the context of the decision-making.
Dr TM considered ET no longer capable of making an EPA or EPG.
In the letters to the GP, Dr TM noted that ET was accompanied to her appointments by DS on 26 July 2018 and LH on 30 November 2018 and 13 November 2019. Based on clinical testing and observation and collateral information from DS and LH the letters to the GP charted a decline in ET's cognition and functioning and by 13 November 2019, Dr TM had formed the view that she lacked capacity to assess her care needs and that the 2018 EPG should be activated.
For completeness I refer to a letter Dr TM wrote to Dr JK on 25 May 2018 and which was before the Tribunal in respect of the 2018 applications.
Relevantly Dr TM was of the view that ET remained capable at that time of executing an EPA.
As already mentioned the parties accept that ET is no longer capable of making reasonable judgments concerning her personal and financial affairs.
For the purpose of these proceedings I am satisfied on the evidence that ET is now unable to make reasonable judgments concerning the management of her substantial and complex estate.

ET's estate

In his witness statement at para 243, CR detailed ET's estate as follows:
The N farms (2) and the R farm likely to be worth $2.5 to $3 million each.
Livestock and plant and equipment, $100,000 to $200,000.
Two tenanted properties together valued at about $1 million.
Two blocks of land currently worth about $200,000 each.
Cash funds in the family trust $200,000 and $30,000 in ET's personal account,
A Farm management Deposit of $180,000.
CR and MW are the directors of the proprietary limited company which acts as the trustee of the family trust. ET is the sole shareholder. The trust has tax loses and since 1 July 2020 on the advice of ET's accountant, the farm operations have been conducted through the family trust for income tax purposes.

The succession plan

The succession plan of ET according to MH was for the daughters to be given one farm each (and livestock). Currently there are three farms, two farms in the same location (N Farms) managed by ET and DG and the R farm managed by MH and RH.
MH said that the succession plan was drawn up in late 2014 and included ET remaining on the N farm for as long as possible.
CR confirmed that under ET's will (of which the daughters were aware), each of LH and DS would receive their predetermined farm of the N farms and MH would receive the R farm.
CR stated that around 2018 ET complained at length about how LH and DS were managing the N farms; she did not consider them to be farmers. ET also said that that she did not any longer have much to do with the R farm.
MH said that in about 2018 ET had decided to take back the N farms upon which LH and DS left the farms and returned to Perth and DG was employed as farm manager.
At the time the preferred outcome for ET according to CR was for her to regain practical control over the N farms and for MH to continue to operate the R farm. ET had reiterated that she wanted to stay on the farm for as long as possible. LH said that ET expressed that wish to her on multiple occasions.
Around the time of the 2018 EPA MW said that MH and RH had expressed a deep suspicion about DG's intentions concerning ET and her farms. They were concerned that ET would sell her farms including the R farm which they took to be theirs. In discussion with ET, MW said that ET had assured him there was no intention of selling any farm to DG and that it was her wish to stay on the N farm for the remainder of her life. She was concerned that her daughters wanted to place her in a nursing home.

The making of the EPAs and EPGs

CR stated that from early 2018 it was clear from discussions particularly with ET, her accountant and LH that there was significant dysfunction between ET and her daughters. ET wanted to regain control of the N farms and her daughters had their own interests in the farms.
CR said that he suggested the appointment of independent attorneys, however ET only wanted to have people she knew. CR said that there was also the concern that ET would over time have to rely to a greater extent on any appointed attorney to manage her estate.
CR stated that he spoke with Dr TM. Dr TM supported consideration of ET changing her attorneys and that anyone appointed would need to work around ET's personality and control issues even to the extent that ET should be given the impression that she was in control even if that was not entirely the case.
CR said that in further discussions with ET she was clear she did not want any of her daughters acting as her attorneys because she could not be confident that they would ensure she could remain living and farming on the N farms. She was very concerned she would be placed into aged care.
CR stated that ET wished to appoint him as her attorney. LH suggested MW might also be appointed which is what eventually occurred. CR said he arranged for ET to see an employed solicitor in his firm for independent advice.
MW said he was surprised when CR contacted him in July 2018 to ask he act as joint and several attorney. He understood the purpose of his proposed appointment was to control the costs associated with ET's communications with her daughters, liaising with CR concerning family dynamics and working with CR for ET's welfare. He added:
… I perceived it to be a plea for assistance to help with an old lady client that he could not desert.
(witness statement para 6)
In about June 2018, MH said that CR sent her and LH a letter advising of the change in EPA and the EPG (June 2018 letter). MH did not know CR and was concerned he would be making decisions for ET and managing her affairs.
MH stated that she believes that CR influenced ET to amongst other things change her attorneys and enduring guardians.
According to MH, the attorneys have not accounted to her as is required under the 2018 EPA.
CR said that ET's daughters have always had an open invitation to communicate with the attorneys however he has not reported to them concerning any specific instructions he received from ET as her solicitor.

ET's relationship with her daughters (and others)

DG said that he first met ET in 2013 as a contractor to remove plantation tree stumps on the N farms. He got to know ET over time and she would talk about her deceased husband and son and the problems she had with her daughters. ET regarded MH as entitled, living beyond her means and pushy to get control of ET's estate. The pressure from MH and RH to leave the farm increased after the death of ET's husband about 17 years ago.
DG said he was shown letters MH had sent to ET saying she would lose contact with her grandchildren if she did not give up the farms.

DG said that in about mid-2014 he witnessed MH physically assaulting ET and screaming that she would not see her grandchildren again.
MH did not accept the evidence of DG concerning the alleged assault. She said DG's evidence was a complete lie.
CR said that it was around this time that it became clear to him ET needed to be protected.
CR stated that from about late 2015 MH had raised concerns about ET's capacity and also MH's view that ET had a history of playing her daughters off against each other and was driven to control everything. CR said that surprised him at the time, finding ET capable and relatively generous.
CR said he became progressively of the view that MH was conflicted between her own interests and helping ET and might be content for ET to fail in her intention to remain on the farm. He said he had realised over time that when MH's interests were affected she would assume other than a supporting position.
MW said that he was aware that ET's daughters remained continually worried that she would sell her farms and took this to be a way of ET asserting her independence and exercising some leverage over her daughters.
MH said that ET was a very critical person; she criticised people so much MH said she would agree with her just to move forward. ET was said to be prone to exaggeration and to quickly change allegiances. She would turn on her daughters and DG.
DG said that whilst ET would usually listen to reason, when she became angry about something (usually over money or her fear of aged care), she would become impossible to reason with.
DG said that MH and RH were charging personal expenses to ET's farm account and helping ET put a stop to that practice was the main reason for his fall out with MH and RH. MH and RH would denigrate DG and his family in the local community.
LH described ET as a strongly independent person who grew up during the depression. She had always been extremely frugal and watched her finances carefully.
MH accepted further to the evidence of LH that around 2015 she may have said that ET should leave the farm and live in town.
CR said that on 3 July 2019 he was informed by DG that ET had called him a crook and that she had dismissed him. The attorneys and DG formed a strong suspicion that the influence of MH was behind the sudden change in ET's attitude to DG (DG said that ET had told him MH had made other arrangements and that MH's son would take over the role of farm worker). The attorneys had received reports that ET had been telling her daughters that she was going to sell the farms (her usual way of dealing with pressure from her daughters). LH and DS were said to be worried that ET would try to sell the N farms but allow MH to retain the R farm.
DG said that ET later apologised to him in a meeting arranged by CR in ET's home.
MH rejected the proposition put by counsel for CR that she had been seeking to influence ET against DG, that she had threatened ET with admission to a nursing home if she did not get rid of DG. The proposition arose from the evidence of DG and CR that ET had said to them the threat had been made and was the reason for her sacking DG at the time.
MH accepts that in the first half of 2018 she refused access to ET's sheep being shepherded at the time by DG from crossing the R farm to take advantage of feed. MH said that the refusal had to do with a biosecurity issue and admits she was upset at DG because she was concerned ET's sheep would be mixed with her sheep.
DG said that MH yelled abuse at him, threatened to call the Police and physically pushed him.
MH said that in her view ET needed care, to live in a clean environment and to be given good food. If this could be achieved by ET staying on her farm then she would support that arrangement.
MH said that she is happy with the current living arrangements for ET and accepts that is due to the efforts of the attorneys and the team they have assembled.
Of his time observing the family dynamics, DG stated:
… I've watched seven years of absolute BS of watching an old lady being broken down because she has got assets, and my reputation has been destroyed by standing up to her – to the daughters, mainly [MH]. And from the very beginning of working with [ET], that's all I copped was from mainly [MH] was 'Mum needs to be off the farm. Mum needs to be in a home'. It was constant and it was sickening, and it just got worse over the years. [DS] a little bit. I always found I could work with [DS]. And I communicated with [DS]'s husband, [JS] all the time. I trusted [JS].
(ts 290, 9 October 2020)
CR said that currently carers continue to inform him that ET is stressed whenever there is contact with her daughters although she continues to seek that contact. CR understands that LH as enduring guardian has instructed the carers that ET must be accompanied by a carer when taken away by her daughters (including herself).

The lease of the farm which MH and RH operate (the R farm)

CR said that the June 2018 letter was written to MH, DS and LH on the express instructions of ET. The daughters were to retain a nonexclusive revocable licence on their respective parcels of land (excepting ET's home), the licence revocable on one month's notice in writing. The daughters were to pay the rates, insurance and electric power accounts.
MH said that some of the emails she had received from CR were causing her to feel anxious about her security on the R farm in particular that if she and RH did not sit on an arranged polygraph test (see below), all the arrangements with ET would be reviewed.
MH said that her family relies on the income from the R farm and if forced to leave would suffer hardship. She and RH had farmed with ET for about 22 years and the R farm since before 2003. She had not paid rent for all that time (MH also had her own farm which was mortgaged).
MW said that he and CR as attorneys tried to negotiate a lease for the R farm. He had spoken with ET about the unequal treatment of the daughters; LH and DS had had to leave the N farms and MH had been permitted to remain on the R farm but was not paying any rent.
MW said that a commercial rent of $70,000 or $80,000 was established however in his discussion with MH she would not agree to that amount and when pressed would also not agree to a figure of $2,000 per annum. The matter was not pursed, CR saying that ET was fearful of MH.
MH agreed that MW had contacted her about a rent appraisal for the R farm and that an amount of $70,000 or $80,000 per annum had been mentioned after an expert appraisal but to which she did not agree.
MH said that to justify such a rental figure the farm would have to be in good condition and that ET would have to consider making capital improvements,
MH said she would have liked to discuss all of this with the attorneys but found MW's approach to the rental issue sarcastic. Instead she went to ET's accountant and then went to see ET herself.
CR said ET advised the attorneys in about May 2019 to continue with negotiations, saying that she would agree to a lower rent than $75,000 per annum and that she was worried her relationship with MH would be affected.
MH said that in March 2019 she and ET arranged for a lease on the R farm to run for five years (R lease). ET had contacted MH to discuss the arrangement for the operation of the R farm. ET said that she wanted to enter into a lease agreement.
The R lease was signed by ET and it was agreed that the rent on the R farm was to be by way of MH paying the property rates and for any necessary capital expenditure which MH said amounted to about $30,000 to date. The need for capital expenditure would be determined on a case by case basis. The accountant has a copy of the R lease.
MH said she believed ET was aware of what she was getting into with the R lease and that it was the product of them trying to work out their situation, negotiating between a mother and daughter.
MH accepted that the rent on the R farm as arranged with ET is probably not a fair amount and does not help to offset ET's costs of care. MH said that in the expectation that the Public Trustee would be appointed administrator of ET's estate, she would negotiate a rental figure at that time. She did not think the R lease enforceable.
MH said that CR had never requested a formal lease for the R farm but that she thought that he might have wanted to and then had MW contact her about a rental amount.
CR said he was flabbergasted that the accountant might have approved the R lease and found it inconceivable that the accountant would not have informed him as attorney of its existence (of which he was unaware).

The alleged stolen cash and the polygraph testing (and associated matters)

On or about 14 September 2019 (when ET was in hospital), CR said he was informed by LH that ET kept cash under her bed and that MH, RH and his mother had entered ET's house. Up until that time he was not aware that ET kept cash under the bed although she was receiving cash from one of her tenants and also from the sale of particular farm items. (CR said that during a hospitalisation in May 2020, he had found about $3,500 in cash in a number of places around the house with a substantial portion of the money under ET's pillow in her bedroom).
CR said that a few days after discharge from hospital in 2019 he and MW heard from DG that ET's cash had disappeared during her stay in hospital.
CR had been told by DG on 13 September 2019 that MH, RH and his mother had cleaned ET's house. MH confirmed this in her evidence. She said the cleaning took most of the day.
DG said he observed business paperwork belonging to ET being incinerated on the day.
MW said that in a telephone call with ET about the end of September 2019, ET confirmed that she had kept cash under her bed but would not say how much. In a meeting on about 25 September 2019 between himself, ET, CR and DG cash of about $8,000 to $10,000 was mentioned.
DG said he had estimated that amount from his knowledge of ET's cash dealings.
MH stated that she had not known of the missing cash until a meeting in CR's office in January 2020 (January 2020 meeting) at which the attorneys mentioned up to $100,000 had been allegedly stolen.
MH stated that it was possible that ET kept cash in an envelope under the bed; she and some others had found cash there some 17 years earlier when her late father was in hospital. She did not believe it would be as much as $50,000.
DG said that on or about late October 2019 he had discussed the missing cash with ET. When amounts were put to her she had said yes to an amount in excess of $10,000, then an amount in excess of $50,000 and finally an amount 'Slightly less' than $100,000 settling on an amount in the range of $84,000 to $86,000 (witness statement para 111).
In his oral evidence DG said that in his view the varying figures for the missing cash reflected ET's need to save face and not to be liable for taxation. ET had initially mentioned $100,000 of which $25,000 was cash that had been there since the death of her husband. The $84,000 to $86,000 was arrived at after deducting what she had given to her daughters.
CR assumed that the variable amounts of cash mentioned by ET was as a consequence of her embarrassment and her concerns about the tax implications of having that money.
DG said that ET was enamoured with any scheme to reduce or avoid taxation.
On questioning MH said that in the process of cleaning she had opened the window in ET's bedroom but does not remember whether she closed it later.
MH said that in cleaning the bedroom which included turning the mattress (which she believes was likely done by RH although she accepts her view is not consistent with that of RH), no cash was found.
MH stated that she first knew of RH having told ET at the time of a broken window in her house was when she read about it in DG's witness statement. DG said that he had observed the broken window with ET's regular builder and they concluded someone had staged a break in.
MH said that RH had subsequently told her it looked like a stone picked up by a lawnmower had caused the damage. She had not felt the need to question that explanation because she considered him to be very honest and to have integrity.
CR said that he attended the local Police station on 26 September and 1 October 2019 informing them of the stolen cash and the suspicion that RH was responsible. The Police decided not to take action because of the lack of direct evidence and the unlikelihood ET would make a statement.
CR said that prior to the January 2020 meeting LH had suggested a polygraph test to clear her name.
The attorneys decided that was a worthwhile idea because amongst other things the missing cash was a large amount, in their view there was clear evidence RH was very likely to have been involved (and he was likely involved in other recent events such as stolen fuel and stock book and cattle released from a secure location), it was important to clear DG because of his importance to ET staying on the farm, they knew MH's marriage was shaky and that ET had always been concerned about her daughters losing their inheritance to their partners.
MW said that the literature about polygraph testing made it clear that the testing was reliable and that a guilty party either would not agree to the testing or would fail the testing. He and CR did not expect RH to attend but hoped that MH would.
CR said that more than anything he and MW regarded ET as being at real risk of having her peaceful life on the N farm continuously sabotaged. The aim was to stop MH pressuring ET once and for all. If MH failed the polygraph test or refused to take it, ET might be convinced to take action against MH for rent on the R farm which would be needed to pay for her care.
CR said that because there were concerns raised about the cost of the polygraph testing he had undertaken to pay for the testing if those proposed to take the test, MH, RH, DG and LH, passed the test.
DG said that ET knew about the proposed polygraph testing and was in favour of it.
CR sent a letter to MH and RH dated 21 January 2020 (January 2020 letter) setting out the conditions of the testing and the stated determination ('absolutely committed') of the attorneys for the testing to take place and that it was pointless for anyone (including ET) to deter the attorneys from this course of action.
The January 2020 letter further stated that ET had expressed fear being by herself and that with ET's consent the attorneys were putting the following security measures in place. That until the polygraph testing was completed MH and RH were not to enter ET's home or farm property without the express permission of CR or MW. There was to be a guard dog arranged, persons would be staying in LH's caravan parked close to ET's house to provide additional security at night and security cameras were to be installed. Should the restrictions not be honoured by MH and RH then the attorneys would consider obtaining violence restraining orders on behalf of ET.
The January 2020 letter also advised MH and RH that all present and future benefits provided by ET would be reviewed after the polygraph testing.
CR further communicated with MH on 22 January 2020 advising his understanding that she had visited ET on 21 January (and might not yet have read the January 2020 letter prior to the visit). The attorneys had decided not to at that time seek a restraining order on behalf of ET but reiterated the prohibition to visiting contained in the January 2020 letter.
In his oral evidence CR accepted that although the communication stated that ET had read the letter from CR, he had not obtained ET's approval in advance but knew she would approve it which she subsequently did. He also did not have the approval of LH as enduring guardian.
CR said that the attorneys fast-tracked the installation of a security system and although ET complained loudly about the cost, they told her as her attorneys 'there was no choice in it' (witness statement para 191).
On 7 February 2020, the attorneys sent a text to MH alone because according to CR they wanted to make it clear to MH that they wanted her to take the polygraph test and that she might have suspected RH took the cash but did not have the courage to face him. MH did not respond to the text.
On 11 February 2020 CR further communicated with MH saying that if she did not attend for polygraph testing the next step would be to take possession of the R farm which the attorneys would put to public tender for lease. CR accepted that he took this step without ET's instructions.
LH and DG passed the polygraph test.
In his oral evidence CR said he knew the polygraph test was a 'wacky idea', however the attorneys wanted ET to be relieved of the pressure over the missing money and on the balance of everything the attorneys knew at the time MH and RH were the most likely to have taken the cash and the idea was to push the point hard (ts 116, 8 October 2020).
CR said that ET eventually agreed to go to the Police about the missing cash. She later informed CR that she told the Police that the missing amount of cash was about $50,000 but that she did not want to take the matter further because the family name would be affected and she did not want to lose contact with her grandchildren.
CR said that in his view ET would never have admitted to the Police that $50,000 had been stolen if it were not true, to do so would be contrary to her nature.
On 10 March 2020 CR said he attended ET's home with DG and MW (by video link). When told that MH and RH had refused the polygraph testing, ET was said to have responded that meant they were guilty. CR said that ET approved the action to keep MH and RH off her property.
MH stated that at the January 2020 meeting CR had advised of his view that the circumstances of the missing cash were suspicious and she felt as if she and RH were being accused of the theft. She had initially agreed to the polygraph testing proposed by the attorneys however changed her view after a subsequent telephone conversation with MW in which he said she had to choose between her marriage and her family. She took the view that she was being trapped by the attorneys. She sought legal advice and subsequently declined to take part in the polygraph testing.
MH said she had trusted MW and couldn't believe that as her cousin he would think that she and RH took the cash.
MW said that in the telephone conversation MH had asked him two questions. First did he believe she took the cash to which he responded 'no'. The second question being did RH steal the cash to which MW said he responded by saying that was for her to decide. He never asked her to make a choice between her husband and family.
Despite this MH conceded that the attorneys would have had grounds for suspicion that money had been taken.

ET's evolving care needs including the impact of the COViD-19 pandemic

LH said that several times over the past two years MH (who also expressed this view in about May or June 2015) and DS told her that ET needed nursing home care. They had also complained about the costs of ET's care at the N farm.
LH said in various conversations with ET since mid-2019, she gained an understanding that MH had actively worked to undermine those who had been supporting ET to remain on the N farm by appealing to ET's fears of being placed in aged care, having insufficient funds for her retirement and losing contact with her grandchildren.
LH said that the consistent advice received from Dr TM since mid-2018 was that with the progression of ET's cognitive and functional decline, as the enduring guardian she and the attorneys should work around ET, influencing her decisions where possible, avoid conflict with her and put safety mechanisms in place where necessary.
After ET's hospitalisation in September 2019, CR said that LH told him the hospital team had taken the view that ET should no longer live in her home.
CR stated that in anticipation of ET fighting for every inch of her independence in the context of declining functioning, the solution was to put together a team of supporters, gain her trust and work with and around her.

First and foremost in that team was DG. Although wary of DG at first, CR said that over time he saw that DG was essential to ET fulfilling her wish to remain on the farm and believed that he cared deeply for ET. CR said that DG was at times caught between ET's instructions which might not be sound and his advice as solicitor and the views of he and MW as attorneys.
CR said that he was informed by DG on 24 March 2020 that ET had told him that MH had made contact and intended for her to move in with her and RH during the COVID-19 crisis. CR said he immediately texted MH and RH warning them not to enter ET's farm and confirming that LH was in the process of applying for a violence restraining order against them.
LH said that it was at her direction that MH and RH not be permitted to enter the N farm,
When referred to the allegation of her intention to move ET, MH said she never said that to ET and in any case there would be nowhere for ET to sleep in her 'tiny little' house (ts, 97 8 October 2020).
CR sent further communication to MH and RH on 26 March 2020 (March 2020 communication) warning them 'to totally and immediately back off', that if necessary ET would guarded around the clock by him, DG and DG's son and that he would charge for his time at his professional rate.
CR went on to say that a law firm would be immediately instructed to obtain a restraining order against MH and RH to prevent any contact with ET.
The March 2020 communication went onto say that ET's life would be at risk if she went to stay with MH and RH and further:
… Suffice to say, you should be very aware that as a matter of law, someone who deliberately kills a WillMaker, (sic) will automatically forfeit their interest under the Will maker's estate. It is called the rule of forfeiture.
The astronomical cost of me having to fight a rear guard action together with [MW], [LH] and [DG] against all your machinations and scheming to get [ET] into a home is enormous and completely out of proportion. This is to the significant detriment of each daughter[.]
And finally:
[CR] has come
CR said that the context for that communication was ET's vulnerability to the virus, the history of MH and RH's interference in ET's life to her detriment and that after a discussion with MW, LH and DG they agreed 'there was a possibility that [ET] might be deliberately or recklessly infected by [RH] and/or [MH] and it would be impossible to prove any intent or recklessness' (witness statement para 201).
When asked whether it was the enduring guardian with the authority to make decision about ET's contact with others, CR said the urgency of the situation (the allegation that MH was going to remove ET from the N farm) demanded crisis action.
CR said he also did not contact MH about the allegation to move ET because he trusted DG as the source of the information.
CR said that despite the communication he did not think that MH (or anyone) would deliberately kill ET but that 'I had thought that perhaps [MH] might think it wasn't such a bad idea' (ts 204, 9 October 2020). CR said it was RH he was worried about.
CR said that he did not 'write' '[CR] has come' and has no idea how it came to be included in the communication which was sent from his iPhone.
CR accepts that at times he used intemperate language in his communications but does not regret making them.
MH stated that there was an exchange between her and LH on 2 May 2020 concerning a fall of ET. LH had questioned why MH had visited ET (she was seen on the security camera) when it was the intention to keep ET isolated due to the COViD crisis. MH told LH that no one could stop her from visiting.
MH stated that at the visit she had seen that ET had fallen and was on the floor. There was blood in a couple of places in the house. She had made ET comfortable but had not called LH because she knew a carer would soon be arriving. She did call DS to tell her what had happened. At that time ET was not receiving full-time care.
MH said that she understood the context (the COVID-19 crisis) in which CR was saying to stay away and that applied to everyone.
CR said that after ET's hospitalisation in May 2020 LH and he were told that she could not return home without close supervision to prevent further falls. As a consequence the attorneys immediately employed a care agency to provide 24 hour care.
LH said she agreed with that decision.
MW said that on 10 June 2020 DS contacted him on the way to an unannounced visit to ET. DS was reminded of the decision of LH as enduring guardian that ET could not be taken from the farm without a carer being present. The attorneys were worried about further influence on ET. DS is reported to have said she would not include the carer. She also complained strongly about the cost of ET's 24 hour care and wanted a cheaper solution.
LH said that the team by which she referred to herself, the attorneys, the carers and DG who she described as 'quite an amazing man' worked together very efficiently to meet ET's needs (ts 279, 9 October 2020).
LH said that MH had her own agenda and had not been helping the team and had not put in an effort to have a relationship with her.
LH said that she continued to regulate contact with ET by requiring MH and DS to contact the carer before visiting and having a carer present when leaving the N farm,
LH said that should she be given medical advice that ET can no longer be cared for at home and needs residential aged care, she together with the attorneys will make the necessary arrangements.
DG said that ET is now the best and happiest he has seen her since late 2017 after a bumper crop. She wants to stay on the farm and told DG she is grateful to CR and MW for enabling her to so so.

CR's conduct as attorney and solicitor for ET including the costs agreement and the role of the attorneys under the 2018 EPA

CR stated that he has been ET's solicitor since June 2014.
CR said that after the making of the 2018 EPA he established a close relationship with his co-attorney, MW. The aim was to act jointly but to take different roles for the sake of economy. CR said that without the input of MW it is likely that the transition to full-time care for ET would have failed.
In the process of his appointment as attorney CR said that he made it very clear to ET that he was going to charge her at his prevailing hourly rates ($450 plus GST) under the costs agreement to do the work necessary to achieve her wish to remain on her farm. This included work as ET's lawyer and as her attorney.
CR said it was an understanding between him and ET that in his formal roles he would do whatever was needed to maintain ET's independence which she was afraid of losing.
MH submitted that CR's fees represent a gross overcharging of the management of ET's estate.
CR stated that the attorneys became aware over time of the myriad of lies, half-truths or embellishments from ET's daughters but also realised that ET did not always tell the truth, lying whenever to protect herself.
Consequently, CR said that acting as ET's solicitor and with MW as attorney, required them to make decisions to circumvent as best they could whatever problem presented itself
CR contended that the attorneys have always acted further to Dr TM's advice from July 2018 (see above) with the aim of keeping ET on the farm for as long as possible (including arranging 24 hour care) and to account for ET's personality and her need to be seen to be in control.
When taken to the March 2020 communication (see above) CR accepted that as attorney he did not have 'absolute legal power' to exclude MH from contact with ET; however he said that at that time the 2018 EPG had not come into force on its terms and that LH as enduring guardian would stand behind him in the decisions he made. (ts 124-125, 8 October 2020).
CR noted that during 2018 LH's health had not been good and she had given him the authority to access ET's medical and other records.
CR said that he and LH collaborated on the necessary decision-making and when at times he had made the decision alone she had never told him not to do so and had not countermanded his decisionmaking.
CR said he wanted to 'bluff' MH to stop her hassling ET at a time of the real risk posed by the COVID-19 virus. He did not accept counsel's proposition that this behaviour was highly unprofessional, cruel and inappropriate (ts 125, 8 October 2020).
CR said that at one time he and MW (with the consent of ET) had installed a listening device in ET's home. It was his understanding that was permissible on the basis that ET was trying to protect herself. For the life of the device nothing came to light and it had not been effective.
CR said that up to her hospital admission in May 2020, ET signed all her personal and farm cheques to allow her to maintain her independence, the payments and bank accounts were regularly checked by him. CR considered that up until May 2020 ET was capable of instructing him and if she had wished to terminate the arrangement with him she could have done so.
CR said after her discharge from hospital from about the middle of 2020, he formed the view that ET had lost capacity and that it was appropriate for him and MW to take complete responsibility for her financial affairs. LH was of a similar view. Despite this CR said he continued to believe that ET was able to weigh up the broad issues that surrounded her staying on the farm and farm business.
CR said that the role of the attorneys from now is to focus on the preservation of the three farms in accordance with ET's estate planning. Non-farm assets will need to be liquidated progressively to provide for the costs of ET's care. It is also CR's view that rent will need to be generated from the R farm but he expects MH to resist. If that issue leads to legal action CR said he and MW would as attorneys, engage separate legal representation.
CR submitted that he will be able to keep an open mind regarding any lease negotiations for the R farm despite his ongoing suspicion that RH (and/or MH) stole ET's cash.
CR said that given her cognitive and functional decline and the provision of 24 hour care, he does not believe ET is any longer open to coercion (although he would still be concerned that attempts would be made) and is not at risk of being moved from the N farm.
MH stated that since the January 2020 meeting she has lost all trust in the attorneys and has felt that CR has relentlessly victimised, threatened and bullied her and RH.
In response to questions concerning the cost agreement, MH agreed that ET was very cost conscious and would pay close attention to financial matters.
CR said that he decided that from the time he considered ET lost capacity he would no longer charge for his time. He has taken that time to run from 23 May 2020. CR described this situation as 'a labour of love so to speak' (witness statement para 242).
As for the proposal of MH that the Public Trustee be appointed as the plenary administrator of ET's estate, CR submitted that he does not believe that the Public Trustee would have achieved ET's aims and wishes as the attorneys have done. He calculated the fees that the Public Trustee would have and would now charge at approximately $50,000 to $55,000 per annum (later amended to an estimate of $53,912 per year).
CR gave a number of other reasons why in his view the Public Trustee should not be appointed as the administrator of ET's estate.
•DG would not continue as farm manager.
•A great deal of information and history would be lost were CR not present and the understanding of the family that MW has would also be lost.
•The close relationship that the attorneys have with ET's carers would be lost.
•The Public Trustee would not be able to provide the personal touch currently given by CR and MW to ET.
CR said that his submission to continue as attorney is motivated by a desire not have ET's current care arrangements disturbed and to be able to continue to stand up for her in times of need, including when she can no longer live on the farm. He said he wished to continue to support LH as enduring guardian.
CR said that he does not see MH as the enemy; he and she communicate cordially about for example the rental properties which are managed by MH.
Regarding the fees charged as solicitor and as attorney, CR pointed to the costs agreement. He accepted that it would be difficult to separate the fees charged from the middle of 2019 to 23 May 2020 for his work as ET's solicitor and attorney; however he submitted his instructions did not require that separation. CR added:
… my understanding with [ET] was that I was to do whatever was necessary in order to make sure that her aims were fulfilled, and that required me having a finger on the pulse and being well informed.
(ts 136, 8 October 2020)
CR noted that MH has made a complaint to the Legal Profession Complaints Committee concerning his conduct and that as a consequence his firm's invoice amounting to $108,743.95 remained unpaid at the time of these proceedings.
MW said that as joint and several attorney CR has involved him in management detail, explained legal issues and relied on him for matters of family background. He has access to ET's bank accounts and monitors the transactions.
MW said that he was not long in the role as attorney when he became confident that CR had the legal experience and financial management ability needed for the role.
MW characterised the attorneys' role as a team effort. He was of the view that CR and DG have been largely instrumental in maintaining ET on her farm and has high praise for their persistence in what he says has been a thankless task.
MW said that has received no financial gain in his role as attorney.
LH said that she has worked well with the attorneys and has had no difficulty with their appointment. She is of the view that the attorneys have done much to assist ET's general welfare and financial management and that ET's wish to remain on the N farm would not have been achieved without them.
LH said that as enduring guardian she would be able to work with the Public Trustee as the appointed administrator.
DG said that from July 2018, he kept in close contact with the attorneys. His view is that he would not have been able to remain supporting ET '… had it not been for their trust and encouragement'. (witness statement para 71). He added:
Things changed dramatically [when CR and MW were appointed attorneys]. To have the support was – was incredible. [CR] has – was fantastic and [MW] invaluable. Absolutely invaluable. And - and a fair extent to [LH], too. She – she got on board and – because she was bullied … mainly from [MH], a bit from [DS][.]
(ts 290-291, 9 October 2020)
DG said that without that support he would not have stayed providing farm services to ET. He did not consider himself to be the farm manager so he would discuss farm operational issues with CR those discussions being essential to resolve problems before they worsened. His working relationship with LH has improved significantly.
DG said that if the attorneys were replaced he could not see himself staying with ET in the longer term.

Disposition of the applications

The evidence before the Tribunal represents the expression of intense family controversy. The common element of a series of unfortunate events is the fluctuating relationships between ET and her daughters as they have responded to her needs and their wants and wishes for the future.
The difficult and often fractious relationship between ET and her daughters is of longstanding and seems to have intensified since the death of ET's husband and in the context of her desire to remain on her farm as she has aged and her independent functioning has declined.
A specific intervention into this family system occurred in about the middle of 2018 when ET appointed CR and MW as her joint and several attorneys. That instrument became a purported expression and force of ET's wishes and intentions.
The application by MH for the appointment of an administrator of ET's estate is the latest demonstration of the playing out of the family dynamics and a challenge to the formal authority granted by ET to her attorneys.
It is important to be reminded that the primary focus of the Tribunal in these proceedings is the best interests of ET.
Fundamentally, the expression 'best interests' in the context of a protective jurisdiction such as the GA Act, reinforces the idea that the paramount concern is the overall interest of the person to whom the protection is directed (Public Trusteev Blackwood (1998) 8 Tas R 256). Put another way, the expression is concerned with the person's 'separate and independent welfare' (Charlton v Baber [2003] NSWSC 745 at [52]).
ET's best interests must necessarily concern itself with ET's current and future circumstances and the decisions that need to be made for her.

By what formal authority should those decisions be made?

It is accepted by the parties that ET is no longer capable of making significant personal decisions or to manage her complex estate.
A good deal of the efforts of the parties (including ET herself) has been directed to the question of her living arrangements. The substantive conflicts and disputes have centred on this issue.
In its current manifestation the accommodation question is settled to the extent that all have said they are supportive of ET living on her farm with 24 hour care funded by her estate.
The question that will arise is how long this living arrangement can be maintained. The factors that impact on the decision are twofold. First the increasing care needs of ET as her functioning further declines and whether care can be provided on her farm or requires the specialist attention of an aged care facility. Second how the substantial cost of the care on the farm is to be financed in an ongoing way and if nursing home care is eventually needed how to fund that cost which will likely include the basic daily fee, a means tested fee and a refundable accommodation deposit.
The decision of where ET is to live is an ongoing decision in the sense that ET's circumstances will inevitability change. The primary authority for that decision rests with LH as ET's enduring guardian under the 2018 EPG.
There is no challenge to LH's authority currently before the Tribunal.
Whomever has formal authority to manage ET's estate will need to respond to the financial implications of the decision(s) of LH in addition to the daily task of managing the financial aspects of ET's farms, rental properties, income and expenditure.
There are only two possible options. The retention of the 2018 EPA or the appointment of the Public Trustee as the administrator of ET's estate. None of the parties has proposed to be appointed administrator.
ET is no longer capable of executing an enduring power of attorney.
I accept on the evidence that it would be the wish of ET that the 2018 EPA remain in place. She did not revoke the instrument prior to her incapacity.
An enduring power of attorney in Western Australia is created and regulated by the GA Act with reference to a general power of attorney (KS [2008] WASAT 29)(KS).
In addition and as put by Barker J in KS at [50] to [55]:
50… A power of attorney is recognised as a formal agency relationship: Parkin v Williams [1986] 1 NZLR 294 at 299. The donor may grant the donee a general power to do any act, or may confine the donee's authority by only allowing authority to do certain acts. Where the donor grants a general power to act, the donee may do any act the donor could, excluding any act which requires personal skill or discretion which is imposed on the donor personally: R v Burchill and Salway; Ex parte Kretschmar [1947] S R Qld 249 at 253.
51These general principles pertaining to a general power of attorney are equally applicable, in my view, to a statutory enduring power of attorney. As noted earlier, by statute the Parliament has simply recognised that a general power of attorney may 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.
52It has long been recognised that a power of attorney, however widely expressed, will not authorise the donee to prefer their own interests over the donor. For example, in Tobin v Broadbent (1947) 75 CLR 378 at 401, Dixon J stated:
'Prima facie, a power, however widely its general words may be expressed, should not be construed as authorizing the attorney to deal with the property of his principal for the attorney's own benefit. Something more specific and quite unambiguous is needed to justify such an interpretation'.
See also Latham CJ at 390 391 and Starke J at 398. See also Powell v Thompson [1991] 1 NZLR 597 at 605.
53Where a donee abuses the authority given by the donor in the power of attorney, by preferring their own interests, the courts will usually hold the donor to the transaction where it was within the donee's ostensible authority and the third party had no actual or constructive knowledge of the donee's abuse of authority. See generally Hambro v Burnand [1904] 2 KB 10 at 26; Bryant, Powis & Bryant Ltd v La Banque du Peuple [1893] AC 170; and Powell v Thompson.
54Nonetheless, even where the donor is bound by the transaction in such circumstances, the donee will remain accountable to the donor for the abuse of authority.
55.There is also a suggestion that, even if the donee has acted outside the authority and for their own purposes, the transaction may be seen as ratified by the donor unless the donor acts reasonably quickly to repudiate the action as soon as it is discovered: Scots Church Adelaide Inc v Fead [1951] SASR 41 at 52.

The above is largely captured by s 107(1) of the GA Act which obliges the attorney to exercise his or her power with reasonable diligence to protect the interests of the donor and, if he or she fails to do so, to be liable to the donor for any loss occasioned by the failure.
In its ordinary meaning 'reasonable' includes agreeable to reason or sound judgment and 'diligence' includes constant and earnest effort to accomplish what is undertaken (Macquarie Dictionary Online).
MH submits that the past actions of the attorneys (in particular CR) to be so extreme so as to disqualify them from further acting for ET.
MH points to the means used to in effect keep her and RH away from ET or at least to control contact with her, the type of language used and warnings given to her and RH, the actions to deal with the alleged missing cash including a perceived threat to require her and RH to undertake polygraph testing.
MH also questions the costs agreement between CR and ET and submits that CR intermingled his role as ET's solicitor and attorney and as a consequence overcharged in his attorney duties but which in any case is difficult to exactly quantify because CR did not properly differentiate between charges as solicitor and charges as attorney.
MH has lodged a complaint with the Legal Profession Complaints Committee concerning CR's actions as a lawyer and a substantial invoice remains unpaid whilst that matter is decided.
The attorneys supported by DG and LH submit that their actions were necessary in the circumstances because of the alleged malevolent intentions of MH and RH and therefore the need to protect ET.
It is clear from the evidence that once the 2018 EPA was made the positions of the parties (MH and RH and perhaps DS as against LH, DG and the attorneys) quickly crystallised on the basis of the alleged intentions of the others, those intentions considered to be contrary to ET's best interests.
The evidence also shows that from time to time ET would appear to play off the opposing interests, for example sacking DG or purportedly entering into a lease agreement with MH without informing the attorneys.
The escalation of the conflict is plain to see. It reached quite extraordinary proportions in the ongoing communications between in particular CR and MH.
None of the parties with the exception in my view of MW, DG and LH can claim distinction in some of their actions whatever their perceived intentions. I am satisfied that to some extent ET when capable was an active participant in the disturbances resulting from her intention to stay on the N farm and the long-standing problematic relationship with her daughters.
I am satisfied that ET saw the need for someone independent from her daughters with authority to champion her wish to remain on her farm. She was preparing for a fight.
It is the case that ET entered into the costs agreement with CR and there is no evidence she was not capable of doing so.
I am satisfied that although CR might have acted at times without the prior instructions of ET or LH as enduring guardian, there is no evidence that ET (or LH) countermanded those actions and can therefore be said to have ratified them.
In the case of ET this could only apply when she remained capable of instructing her attorneys. It cannot be definitively said when ET lost this capacity. Dr TM indicates a loss some capacity by November 2019, the evidence of the parties suggest ET's significant involvement in decisionmaking sometime later than that and it appears the hospital admission around May 2020 became a 'tipping point'.
MH's evidence and submissions regarding the allegation as to CR's role as a legal practitioner and the formal requirements of a fitness to practice I have taken generally to inform the proceedings; however it is not within the jurisdiction of the GA Act for me to make a particular finding in respect to that matter and I have not done so.
I have decided on balance that it is in ET's best interests to dismiss the application for the appointment of an administrator for ET's estate. I do so for the following reasons.
I prefer the evidence of DG and MW when referring to how events unfolded and the general view of the conflict between ET and her daughters. I do so because I am satisfied both express a more objective view of what has occurred than the other parties given their respective positions - DG as a farm worker with no interest in the conflict other than to uphold ET's interests (he appears to have sacrificed much to do so) and MW as a comparative voice of reason in the dynamics of ET's family.
Despite the extreme (and arguably at times imprudent) nature of some his actions and the unfortunate language used from time to time, I am satisfied that CR genuinely perceived a threat from MH in particular to ET's wish to stay on her farm and maintained a constant and earnest approach to his role.
CR's actions during the beginning of the COVID-19 crisis when the community was genuinely fearful of what might happen particularly to the elderly can be understood in that context.
The attorneys have the support of LH as the enduring guardian and DG, which is critical to the success of the care regime on the farm and its continuation. I am satisfied there is a real risk DG would eventually discontinue his role as farm worker if the current arrangements for ET in respect of which he has confidence, changes.
The attorneys have voiced support for each other. MW has not sought to have his role as joint and several attorney revoked.
The financial decisions to be made as stated are now limited to the operation of the N farms and other assets and to generate funds to pay for ET's care whether on her farm or in a nursing home.
The possible contention identified in the evidence is the possibility of a lease for the R farm which will require negotiations with MH and RH. Although on past events this might be a difficult exercise, CR has indicated the attorneys would use independent legal assistance which in the circumstances might be preferable.
I am satisfied that the current attorneys can undertake these more circumscribed tasks in ET's best interests given the general acceptance that ET remain living on her farm if and until LH needs to make another decision. LH is also in a position as enduring guardian to continue to regulate the contact that ET has with others to ensure her health and safety.
CR has undertaken not to charge ET any fees as attorney from about May 2020.
I cannot envisage how the appointment of the Public Trustee as administrator would provide a better environment for the management of ET's estate when the current management is given at such a personal level with the care providers in ET's life and with the enduring guardian.

The application under s 109(1)(a) of the GA Act

This application remains on foot. A directions hearing will be called to determine its progress.

Orders

Administration
1.The application for the appointment of an administrator of ET's estate is dismissed.

The application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA)
1,A directions hearing will be called.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (SENIOR MEMBER)
15 MARCH 2021