G and N
[2009] WASAT 99
•15 MAY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: G and N [2009] WASAT 99
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MR J MANSVELD (MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)
HEARD: 5 MAY 2009 AND 6 MAY 2009
DELIVERED : 15 MAY 2009
Edited reasons delivered orally on 15 MAY 2009
FILE NO/S: GAA 2521 of 2008
GAA 2587 of 2008
GAA 1036 of 2009
BETWEEN: G
Applicant
AND
N
Represented Person
Catchwords:
Administration - Guardianship - Conflict between children and stepchildren - Agreement between parties that Enduring Powers of Attorney should be revoked - Whether attorney should be required to file records and accounts - Tribunal satisfied that attorney had kept records and accounts - Satisfactory accounts of dealings and transactions - Attorney not required to produce records and accounts to Tribunal and applicant - Wishes of the proposed represented person - Appointment of family members as administrator unworkable on account of conflict - Public Trustee appointed administrator - Applicant appointed guardian - Direction to consult with other family members
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 44(1), s 44(2), s 43, s 64(1), s 68(1), s 68(3), s 107(1)(a), s 107(1)(b), s 108(1a), s 109, s 119
Result:
Public Trustee appointed plenary administrator
Applicant appointed limited guardian
The enduring powers of attorney revoked
Category: B
Representation:
Counsel:
Applicant: Mr A Hershowitz
Represented Person : Ms E Needham
Solicitors:
Applicant: Metaxas & Hager
Represented Person : Paynes
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought orders under the Guardianship and Administration Act 1990 (WA) concerning her elderly father, N, who had dementia.
The applicant sought orders that she be appointed guardian and administrator for N and that an enduring power of attorney by which he had appointed his step-son his attorney be revoked. She also sought an order that the step-son produce records and accounts of dealings and transactions he had undertaken as attorney.
The step-son had assisted N over many years and the applicant had become involved in his affairs only recently.
There was conflict between the applicant and her sister on the one hand, and N's step-children on the other. However, they agreed that N was no longer capable of managing his estate and needed someone to act on his behalf. They agreed that an enduring power of attorney by which N appointed his step-son, and a later enduring power of attorney by which he appointed the applicant, should be revoked. The stepson had acted pursuant to the power for several years; the applicant had not exercised her powers. Each proposed their own appointment as administrator.
The applicant questioned dealings and transactions by the step-son as attorney and sought records and accounts. The Tribunal accepted the step-son's explanations for the transactions. It was satisfied he had kept records and acted properly in exercising his powers as attorney. It did not accept that he should be required to produce records and accounts to the Tribunal and the applicant.
The Tribunal found that, but for the conflict between them, either the step-son or the applicant would be suitable to act as administrator but the conflict would make either appointment unworkable. It appointed the Public Trustee plenary administrator for 12 months after which time the conflict might have resolved itself and the step-son or the applicant might be suitable to act as administrator.
The Tribunal found that N had no immediate need for a guardian but accepted that decisions about his accommodation and treatment would likely have to be made in the foreseeable future. It was satisfied that the applicant was suitable to act as guardian but was not satisfied that she would involve the stepchildren as N would have wanted. It directed the applicant to consult with the stepchildren and keep them informed.
Background
The applicant sought orders under the Guardianship and Administration Act 1990 (GA Act) concerning her elderly father, N, who had dementia.
N grew up in South Africa and settled in Perth in 1988 with his second wife, J. There are no children of their marriage.
N has three children from his first marriage: an elder daughter who lives in Europe; a son in New Zealand from whom he is, by all accounts, estranged; and a younger daughter who came to Perth from South Africa in August 2004 and has lived here since. She is the applicant in these proceedings. A son and daughter of J's first marriage live in South Africa.
J moved to a nursing home in July 2008. She died in September 2008. In October 2008 the applicant and her husband moved into N's home and have since cared for him there.
A dispute has arisen between N's daughters on the one hand, and J's son, daughter and son-in law, on the other. N's son has sent a brief letter to the Tribunal stating his support for the applicant but has not otherwise been involved in these proceedings.
We refer in these reasons to N's daughter as 'the applicant', to J's son as 'the stepson', to J's daughter as 'the stepdaughter' and to the stepdaughter's husband as 'the soninlaw'.
N's estate and enduring powers of attorney
Over the years, N and J had owned several properties, and a business which they sold in 2003. Throughout their marriage, J managed most of the couple's financial affairs but, by 2005, they were aging and felt they needed assistance. On 15 August 2005, N executed an enduring power of attorney (EPA) appointing the step-son his attorney and, in substitution for him, the stepdaughter. The EPA was expressed to come into effect immediately and continue notwithstanding any subsequent incapacity.
Although it is not clear from the evidence, it appears that, at this time or sometime earlier, J also appointed the stepson and stepdaughter to act on her behalf.
The Tribunal heard evidence, which it accepts, that N and J continued to assert their independence and manage most of their affairs for themselves; the EPA was a safeguard in case it was needed. The stepson had helped them over the years with financial matters and continued to do so but he did not act on his power until April 2008 when it was apparent that neither N nor J could manage for themselves; even then, N continued to manage aspects of his affairs such as operating bank accounts.
By early 2008, J's health was deteriorating; she had Parkinson's disease and the intense care she required was taking a toll on N. Carers had noticed that he was having increasing problems with his memory and with coping generally.
The step-son and step-daughter visited Perth several times during 2008 to help the couples and make arrangements for them. In consultation with carers, it was decided that J needed nursing home care. The step-son, stepdaughter and the applicant agreed they should sell a unit owned by the couple to pay the nursing home bond of $230,000 and N would continue to live in the matrimonial home.
J moved to a nursing home in July 2008. She died in late September 2008. The sale of the unit was finalised at the end of October 2008. N's half share of the proceeds of sale is held in his solicitor's trust account pending the outcome of these proceedings. He also owns one half of the matrimonial home; the other half is held by J's estate. He has several bank accounts and receives a pension from South Africa.
In July 2008, N executed a second EPA, appointing the applicant his attorney. He did not formally revoke the earlier EPA. The circumstances in which this second EPA came about form part of the dispute. In any event, the applicant has given evidence, which the Tribunal accepts, that she has not exercised her powers as attorney.
The applications
On 30 October 2008, the applicant lodged applications with the Tribunal after seeing transactions on N's bank statement that she says call into question the step-son's conduct as attorney. Some of the orders sought were beyond the Tribunal's powers and are not dealt with here. Principally, the applicant sought orders:
i)appointing herself administrator for N; and
ii)ordering the step-son to produce all records and accounts of his dealings pursuant to the EPA executed by N in August 2005.
At the time the applications were lodged, the sale of N and J's unit was being finalised and the applicant also sought orders in effect preserving N's half share of the proceeds and restraining the stepson from exercising his powers as attorney.
On 31 October 2008, the Tribunal by injunction restrained the applicant and the step-son from acting under either EPA without prior approval of the Tribunal.
More recently, the applicant has applied to be appointed N's guardian in order to make decisions concerning his medical treatment and where he should live.
The issues
The parties agree that N is no longer able to make reasonable judgments about his estate and that he needs someone with lawful authority to manage his affairs.
The Tribunal is satisfied, on the basis of reports from N's general practitioner, a consultant physician, a social worker and the Public Advocate, and on the evidence of the parties, that N is no longer able, by reason of Alzheimer's disease, to make reasonable judgments about his estate.
The medical evidence raises questions about N's capacity in July 2008 to execute the second EPA. In light of N's failing cognitive abilities, the consultant physician considers the second EPA 'unsafe'. In the circumstances, the parties have agreed that both EPAs should be revoked and that an administrator should be appointed.
Various matters concerning N's estate need to be dealt with and the Tribunal is satisfied that he is in need of an administrator.
In dispute are:
i)who should be appointed administrator;
ii)whether N is in need of a guardian;
iii)if N is in need of a guardian, who should be appointed; and
iv)whether the step-son should be required to produce records and accounts of dealings and transactions made by him as attorney.
The applicant proposes she be appointed administrator. She says the stepson is not suitable to be appointed because of the manner in which he has performed his duties under the EPA.
The stepson proposes he be appointed administrator or, in the alternative, that the Public Trustee be appointed. He says the applicant is not suitable to be appointed administrator. He says she knew, or should have known, that N was not able to execute the second EPA and she knew there was an earlier EPA, and her conduct in the proceedings has led to a complete breakdown of trust between the parties.
The applicant says that N is in need of a guardian to make decisions concerning his accommodation and medical treatment. J's children do not agree that N is presently in need of a guardian but they concede that a need is likely to arise in the foreseeable future. However, they question the applicant's suitability to act as guardian.
The stepson maintains he has performed his duties as attorney diligently. He does not object to producing records to the Tribunal but says he should not be required to produce them to the applicant in what he maintains is a fishing expedition and contrary to N's wishes.
The issues as to the appointment of an administrator and whether the step-son should be required to produce records overlap substantially.
The legislation
The Tribunal has jurisdiction by virtue of the GA Act to make orders concerning the appointment of administrators and guardians and certain orders concerning EPAs.
Appointment of administrators and guardians
The Tribunal may appoint an administrator for a person who it is satisfied is unable, by reason of mental disability, to make reasonable judgment about all or any of his estate and is in need of an administrator: s 64(1).
Section 43(1) provides that the Tribunal may appoint a guardian for a person who it is satisfied is:
(i)incapable of looking after her own health and safety;
(ii)unable to make reasonable judgments in respect of her person; or
(iii)in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(iv)is in need of a guardian.
Who may be appointed administrator
An administrator shall be someone who, in the opinion of the Tribunal, will act in the best interests of the person in respect of whom an application is made and who is otherwise suitable to act in that position: s 68(1).
For the purposes of determining whether a person is suitable to be appointed administrator, the Tribunal shall take into account, as far as is possible the compatibility of the proposed appointee with the person concerned and with the administrator of their estate; the wishes of the person concerned; and whether the proposed administrator will be able to perform the functions vested in them: s 68(3).
Who may be appointed guardian
A guardian shall be someone who, in the opinion of the Tribunal, will act in the best interests of the person concerned, who is not in a position in which his or her interests conflict or may conflict with the interests of that person, and who is otherwise suitable to act as guardian: s 44(1).
For the purposes of determining whether a person is suitable to be appointed guardian, the Tribunal shall take into account, as far as possible, the desirability of preserving existing relationships within the family of the person concerned; the compatibility of the proposed appointee with the person concerned and the administrator of their estate; the wishes of the person concerned; and whether the proposed guardian will be able to perform the functions vested in them: s 44(2).
Orders concerning EPAs
A person who has, in the opinion of the Tribunal, a proper interest in the matter may apply for an order requiring the donee of an EPA 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: s 109(1a).
By s 109(1)(c), the Tribunal may revoke an EPA. Where the Tribunal appoints an administrator and the continuing existence of an EPA would be inconsistent with the functions of an administrator, the Tribunal shall revoke the EPA to the extent of the inconsistency: s 108(1a).
Principles to be observed
In dealing with proceedings commenced under the GA Act the Tribunal must observe the principles set out in s 4(2). As they apply here, those principles are:
i)the Tribunal's main concern must be N's best interests;
ii)N is presumed capable of looking after his own health and safety; of making reasonable judgments in respect of his person; of managing his own affairs; and making reasonable judgments in respect of matters concerning his estate, until the contrary is proven to satisfaction of the Tribunal;
iii)a guardianship or administration order shall not be made if N's needs could be met by other means less restrictive of his freedom of decision and action;
iv)a plenary guardian shall not be appointed if a limited appointment would be sufficient to meet N's needs; and
v)any order must be in terms that impose the least restrictions possible in the circumstances.
Finally, the Tribunal must seek to ascertain, as far as possible, N's views and wishes as expressed, in whatever manner, from time to time, or as gathered from his previous actions.
The parties' relationships with N
The step-son and step-daughter claim that N was estranged from the applicant for many years and say this is relevant to her suitability to act on his behalf. They say N and J talked over the years about his estrangement from the applicant and his son; they do not dispute that he remained close to his elder daughter. They say the applicant only re-entered N's life after she moved to Perth in 2004 and, even then, that she was not really involved until around April 2008 when N's carers contacted her. They agree that she became actively involved with her father from that time.
The applicant concedes she and her siblings 'did not really have a good relationship' with J but denies being estranged from her father. She says they maintained a loving relationship after he and J left South Africa and she has produced letters, cards and emails between her and her father, as well as photographs of them together on visits, to support her claims. She says she and her husband visited N every second weekend since September 2005 until she moved to live with him in October 2008. The stepson and stepdaughter dispute this claim but were rarely in Perth during this period.
The step-son and step-daughter describe N as 'like their father' and it is evident that, over the years, N and J were closer to her children than to his. They would stay with the step-daughter on visits to South Africa, rather than with the applicant, and they entrusted their financial affairs to the step-son and step-daughter. They appointed the step-son and stepdaughter executors of their wills in 2004 and again in 2006, and they instructed their accountants in April 2008 that they would be assisting with their financial matters in future. Even after the applicant moved to Perth, they continued to entrust their affairs to J's children.
Based on the evidence we have heard from N's step-son and stepdaughter, it is probable that the applicant was not as close to N as she claims but nor was she as estranged as the step-son and step-daughter claim. In any event, it is not disputed that she and her husband have now assumed N's full-time care.
Claims and evidence about the step-son's conduct as attorney
The applicant says the step-son has failed in his duties as N's attorney to such an extent that he is not suitable to be appointed administrator. Further, that the transactions he has undertaken in exercise of his power require scrutiny and he should produce all records and accounts to the Tribunal and the applicant.
The applicant refers to the following matters in particular:
i)a number of withdrawals and transfers by the step-son from N's and J's bank accounts in the three months before J's death;
ii)the withdrawals and transfers include substantial amounts paid to the step-daughter and son-in-law shortly before J's death;
iii)the step-son's failure to recognise a conflict of interest in making payments to J's family;
iv)warning notices and notices of impending cancellation of services received by J and N from early 2006, indicating accounts had not been paid; and
v)the step-son's failure to bank cheques from the Australian Taxation Office made out to N.
Withdrawals and transfers from bank accounts
The bank statements which led to these proceedings show withdrawals and transfers including $174,000 transferred on 13 August 2008 into an unidentified account, and a withdrawal of nearly $2,000 and two withdrawals of $6,000 on 20 and 22 August 2008. The step-son made these last transactions from South Africa, shortly after returning there from Perth. On 19 September 2008, he transferred $1,599.35 to solicitors; on 22 September 2008 he made two withdrawals of $3,000 and one of $5,000. On 29 September 2008 he transferred $4,510 to N and J's accountants.
The step-son gave evidence about these transactions and produced various records. He was able to account for each transaction including the withdrawal of $174,000 which was part-payment of J's nursing home bond of $230,000. Other payments were to the step-daughter and soninlaw, legal costs associated with N's estate and payments for tax.
The Tribunal accepts the step-son's evidence about these transactions. It finds his account of his conduct satisfactory in all respects with two qualifications which we refer to below.
The loan account
The Tribunal heard evidence from the step-son, the step-daughter and the son-in-law about an account in J's name, referred to as 'the loan account' or 'the debt account'. All three gave evidence that funds in this account were advanced at different times over the years by the stepdaughter and son-in-law to N and J.
The 'loan' was not documented and no-one could tell the Tribunal precisely what amounts were advanced or when, other than that the total was in the order of $110,000 to $115,000. The step-daughter and soninlaw would bring the money with them on visits to Australia and deposit it in the account. It is not clear how much, if at all, N and J used the funds in the account in the years it was available.
The son-in-law gave evidence that the money in the 'loan account' was in fact his which was why J bequeathed the funds in the account to him in her will. The step-son and step-daughter supported his evidence.
The step-son produced to the Tribunal a letter dated August 2004 from N and J to the stepdaughter and son-in-law stating they had decided to lend them $35,000 to help establish a guest house. If this letter is genuine, it would suggest, firstly, that the step-daughter and son-in-law may have owed money to J and, secondly, that the step-son may have improperly 'repaid' money to the stepdaughter and soninlaw just before J's death; as N and J considered all their property to be jointly owned, this would have implications for N's estate.
It became clear that the 'loan account' was a means by which the stepdaughter and son-in-law could transfer funds to Australia without offending South African exchange regulations. Further, that the 'loan' referred to in the August 2004 letter was a device to enable them later to return funds to Australia by way of 'repayment', again without offending South African exchange regulations. As it happened, they did not return the funds. The step-son gave evidence that a balance of $81,000 was 'owed' at the time of his appointment as attorney and has produced records kept by J of the account.
The step-son gave evidence that there were insufficient funds in J's and N's accounts to pay the $230,000 bond for J's nursing home. He therefore 'borrowed' $56,000 from the 'loan account' to make up the difference. As the account had been reduced, the step-daughter and sonin-law were earning less interest on their funds and so he repaid the money shortly before J died. He told the Tribunal he felt a moral responsibility to look after the family and the payment was consistent with J's bequest to the soninlaw. He also paid to the stepdaughter approximately $2,000 she had lent to N and J for an airfare.
The Tribunal finds that the 'loan account' was essentially a fiction and that the funds in fact belonged to the stepdaughter and soninlaw. It is satisfied that the step-son subsequently reconciled the accounts and ensured that N and J's estate were treated equally and that N suffered no detriment on account of the payments.
However, it would have been prudent for the step-son to satisfy himself as best as he could of the amounts advanced to the 'loan account' over the years and the precise amounts 'owing' to the step-daughter and son-in-law at J's death. Further, although it is clear that the funds actually belonged to the stepdaughter and soninlaw, in acting in the interests of the wider family the stepson did not recognise a conflict of interest. Had he done so, he should have preserved J's estate for distribution according to her will. Again, the Tribunal is satisfied that his conduct accorded with N's and J's wishes and that neither suffered actual detriment as a result.
Unpaid accounts and unbanked cheques
The applicant has produced to the Tribunal a number of notices in relation to unpaid accounts. They include letters showing that the building and contents insurance on N and J's matrimonial home was cancelled for nonpayment; notices about impending disconnection of gas and electricity; reminders about payment of accounts for home security; and final notices for payment of telephone, water and St John Ambulance accounts. The notices are dated between April 2006 and February 2008. There were also several cheques from the Australian Taxation Office (ATO) that had not been banked.
The applicant says the step-son's failure to pay accounts and to bank cheques demonstrates, firstly, his failure to act properly as attorney and, secondly, that it is impractical for him to act as administrator from a distance.
The step-son gave evidence that he did not act on the EPA until April 2008. Prior to then N and J were apparently managing their own affairs. However, when he and the stepdaughter visited Perth in April 2008, it was clear that N and J could no longer act for themselves; he took over and the stepdaughter arranged direct debits for a number of accounts.
The stepson says the tax refund cheques from the ATO arrived after he had returned to South Africa and he was not aware of them at the time.
The step-son and step-daughter do not agree that living in South Africa makes it impractical for either of them to manage N's affairs. They say that, as long as they have the necessary details, with direct debits and internet banking, they could manage on his behalf.
Claims and evidence about the applicant's conduct
The step-son and step-daughter say the applicant is not suitable to act on N's behalf and question her motives in bringing these proceedings. They dispute her claim that she visited N regularly and say she only become involved around March or April 2008 after one of his carers at the time contacted her.
The step-son and step-daughter say the applicant knew, or should have known, that N was no longer capable of executing an EPA in July 2008. They say she knew that N had appointed the step-son under the earlier EPA. Both gave evidence that she was present on more than one occasion when the earlier EPA was discussed but say she did not tell them she had accompanied N to a solicitor to have the second EPA drawn up, even when they all agreed in July 2008 that the unit should be sold to pay for the nursing home bond.
The applicant denies these claims. She says she knew N had memory problems when the second EPA was executed but she thought they were due to old age and she had no medical evidence that he was not competent. She denies being present when the first EPA was discussed. She concedes that she knew the step-son handled J and N's affairs but says she did not tell him or the stepdaughter and son-in-law about the second EPA because it had not been lodged with Landgate and 'would not have been valid'.
The applicant did not raise her concerns about the bank statements or her father's estate with the step-son and step-daughter before bringing these proceedings. They say her conduct has undermined any trust between them. The applicant maintains that the step-son had always insisted on handling matters and had not discussed them with her. She says that, as an accountant, she was concerned that N's funds would be removed to South Africa and so she brought these proceedings without notifying the other parties.
N's wishes
The Tribunal has heard that N and J made wills in May 2004 in which they appointed the step-son and step-daughter executors and trustees if J did not survive him. The Tribunal has not sighted these wills but accepts the step-son's evidence about them. The Tribunal has sighted a copy of a later will made by N in August 2006 which appoints the stepson and step-daughter joint executors and trustees. It draws no inference from the content of the will which have not been disclosed to the applicant. There is no evidence suggesting this later will has been revoked or a further will made.
The Tribunal has also seen a letter dated 2 April 2008 from J and N to their accountants advising that the step-son and step-daughter would be assisting with their financial matters in the future and giving them authority to access information about any matters pertaining to their affairs.
The Tribunal is satisfied that N and J had a clear preference for the stepson and, to a lesser extent, the step-daughter and son-in-law, to assist them with their financial affairs over the years. There is no indication that they wanted the applicant involved and, even after she moved to Perth, N continued to entrust his affairs to J's children and did not involve her.
In November 2008 the Tribunal asked the Public Advocate to investigate the applications and ascertain N's views and wishes about who should act for him. The Public Advocate has provided a written report of her investigation. One of her officers visited N at home in December 2008. The officer reports that N expressed his wish throughout the interview for the applicant to manage his affairs and stated his implicit trust in her. The officer reports also that N appeared confused about the names of his children and his step-children; he was somewhat vague about his assets and liabilities and, on several occasions during the interview, he became distressed when he could not recall things and asked the officer to refer to the applicant.
Although N executed an EPA in July 2008 appointing the applicant, the medical evidence indicates that his capacity at the time was questionable. The extent to which this EPA can be considered an expression of N's wishes that the applicant manage his affairs must also be questionable.
In light of the medical evidence about N's cognitive impairment, it is difficult to know what weight to put on his wishes as expressed in December 2008. His expressed preference for the applicant was contrary to his clear preference over the years. It is possible it reflected little more than that the applicant was present and recognisable to him.
All the evidence points to N's long standing preference for J's children to manage his affairs. On balance, the Tribunal finds that he would prefer the stepson and step-daughter continue to manage his affairs. However, his wishes are not determinative and the Tribunal's main concern must still be his best interests.
Who should be appointed administrator
The Tribunal accepts the step-son's evidence about his dealings and transaction as attorney. With the qualifications expressed above, the matters questioned by the applicant have been satisfactorily explained.
The Tribunal does not accept the applicant's contention that the unpaid accounts and unbanked cheques demonstrate the step-son's failure to act in N and J's best interests. We accept the evidence of the step-son and step-daughter that N and J continued to manage their affairs themselves. We find that the unpaid accounts reflect their growing incapacity to manage their affairs rather than any failing by the step-son.
In all the circumstances, the qualifications referred to above about the step-son's conduct as attorney are not so serious as to make him unsuitable to act as administrator. In the absence of the current conflict, we would find him suitable to be appointed. However, the unpaid accounts underline the difficulties he would have in managing N's estate. Even if direct debits and internet banking are arranged, management from a distance would require the applicant's cooperation. There would inevitably be matters she would have to inform him about and she would almost certainly have to look to him to make various arrangements. In light of the conflict, we are not satisfied that his appointment would be workable.
The Tribunal is also satisfied that, absent the conflict with J's children, the applicant would be suitable to act as administrator. She has accounting qualifications; she is presently caring for N and she can readily assess his needs.
The Tribunal makes no findings about the applicant's motives in bringing the applications. However, her failure to tell the step-son about the second EPA even when she knew he was mainly responsible for managing N and J's affairs, and her conduct in bringing these proceedings without even asking the step-son about the various transactions, make it clear that cooperation with J's children, and the step-son in particular, is virtually impossible.
If the applicant were administrator, some cooperation with J's children would be essential. In particular, she would have to deal with the step-son and step-daughter as executors of J's estate. In light of the conflict, we are not satisfied that her appointment would be workable
Public Trustee appointed
In all the circumstances, the Tribunal finds it in N's best interests that an independent administrator be appointed and we appoint the Public Trustee plenary administrator. The appointment will be for 12 months initially. In that time, J's estate should be finalised. It may be that, after 12 months, the applicant or the step-son could be appointed.
Should the step-son be required to produce records and accounts
The Tribunal is satisfied that the applicant has a proper interest in bringing the application. She is N's daughter and now his carer, and she has raised reasonable questions about his bank accounts that, on their face, require explanation. The question is whether the step-son should be required to produce records and accounts to the Tribunal and the applicant.
An EPA establishes a fiduciary relationship between donee and donor. The donee must exercise his powers with reasonable diligence to protect the interests of the donor and must keep and preserve accurate records and accounts of all dealings and transactions made under the power: s 107(1)(a) and (b).
In the course of the hearing, the step-son produced to the Tribunal and to the applicant documents and records concerning N and J's estates, and transactions undertaken in his capacity as attorney. With one or two exceptions, he was able readily to produce documents. The Tribunal is satisfied that the step-son has maintained records of his dealings and transactions as attorney. The question is whether he should be required to produce them to the Tribunal and the applicant.
Whereas an administrator appointed under the GA Act is required, unless exempted, to submit accounts to the Public Trustee for examination, and whereas the appointment itself is subject to review by the Tribunal, the conduct of the donee of an EPA is not subject to the same scrutiny. Scrutiny of a donee's conduct is by way of orders under s 109 of the GA Act. Consistent with the more private, less formal, nature of EPAs generally, an applicant must have a proper interest in order to apply for orders under s 109.
The GA Act provides no guidance to the Tribunal in exercising its discretion under s 109. However, the nature and purpose of EPAs generally as well as the principles in s 4(2) are relevant. The relatively private nature of EPAs and the wishes of the donor are particularly relevant.
Where a donee has maintained records of dealings and transactions under the power, and can provide satisfactory explanations on oath of any dealings in question, the Tribunal would normally be slow to require him or her to produce records to the Tribunal and a third party to support his or her evidence.
In this case, the Tribunal is satisfied that the step-son has maintained records and accounts of his dealings as attorney. He has been able to provide plausible and reasonable explanations for all transactions questioned by the applicant and the Tribunal.
It is reasonable to conclude that, in entrusting his affairs to the stepson and, to a lesser extent, the step-daughter and son-in-law, N did not wish to involve the applicant. Even after she moved to Perth and was visiting him regularly, N did not take her into his confidence about financial matters.
A substantial number of documents have already been produced to the applicant during the hearing and the Tribunal is not persuaded that N's best interests require further production of records and accounts to her. The Public Trustee as administrator can obtain from the step-son any records he requires.
Is N in need of a guardian
The Tribunal has before it reports from N's general practitioner, a report of a comprehensive assessment by a consultant physician, and reports from a social worker and an Aged Care Assessment Team. All assess N as having dementia, probably Alzheimer's disease. The consultant physician notes a score of 21/30 on a Mini Mental State Examination in June 2006 and a score of 16/30 in September 2008. In a report dated 12 November 2008, the general practitioner notes a score of 17/30 in February 2008, 'indicating significant cognitive impairment that affects his current capacity to make reasonable judgments concerning any or all of his estate'.
Although the medical reports focus on N's capacity to make reasonable judgments about his estate, they also document his increasing vagueness and declining memory, and his increasing need for care.
The applicant has given evidence that her father's mental condition has deteriorated over the past six months; he has bouts of confusion and agitation has difficulty making the simplest choices such as what to wear. He is still able to wash, feed and clothe himself but needs prompting. She would like him to stay at home as long as possible and at present this appears sustainable but she believes he may need nursing home care within six to 12 months.
The Tribunal is satisfied, on the medical evidence and the evidence of the applicant, that N is now incapable of looking after his own health and safety; that he is no longer able to make reasonable judgments in respect of matters relating to his person; and that he is in need of oversight and care in the interests of his own health and safety.
N has had a range of medical treatment over recent months including xrays, and a skin graft for which he was hospitalised for 10 days; he sees his general practitioner on average twice a month and needs to see a dentist. The treating doctors appear to have acted with the combined consent of N and the applicant.
N does not appear to be in need of a guardian immediately but the Tribunal accepts that a decision will likely have to be made within the foreseeable future about his accommodation. It is also foreseeable that he will need treatment for which formal authority, rather than the authority of s 119 of the GA Act, will be required.
Who should be appointed guardian
The applicant proposes she be appointed guardian. J's children do not propose themselves; they do not oppose the applicant's appointment but they question J's need and her suitability.
The applicant now lives with and cares for N, and understands his daily needs. The Tribunal is satisfied that she is suitable to act as guardian with one qualification.
From her responses to questions from the Tribunal about how she would make decisions on N's behalf, it is evident that the applicant sees herself as the sole decision-maker and J's children having little, if any, involvement.
The Tribunal accepts that J's children regard N as their father. Based on his relationship with them over many years, we find that he would want them involved, as far as practicable, in important decisions concerning him. We therefore direct the applicant, as limited guardian, to consult with J's children, and keep them informed, about his accommodation and treatment.
Orders
1.The time for giving notice of the guardianship application is shortened.
2.The Tribunal declares that N is:
(i)unable, by reason of mental disability, to make reasonable judgments in respect of matters concerning his estate; and
(ii)in need of an administrator.
3.The Public Trustee is appointed plenary administrator of the estate of N with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
4.The Tribunal declares that N is:
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgements in respect of matters relating to his person;
(iii)in need of oversight, care and control in the interests of his own health and safety; and
(iv)in need of a guardian.
5.The Tribunal appoints the applicant limited guardian of N with the following functions:
(i)subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA) to consent to any treatment or health care; and
(ii)to make decisions concerning where, and with whom, he should live.
6.The limited guardian is directed to consult with the stepson and the stepdaughter about N's accommodation and treatment or health care.
7.The enduring powers of attorney made by N on 15 August 2005 and 21 July 2008 by which he appointed the stepson and the applicant respectively his attorneys are revoked.
8.The stepson is directed to provide to the Public Trustee such records and accounts of dealings and transactions in the exercise of his power as attorney as the Public Trustee requires.
9.Orders 1, 2 and 3 made by the Tribunal on 3 December 2008 shall cease to have effect from the date of this order.
10.All funds held in the trust account for the benefit of N are to be paid to the Public Trustee forthwith.
11.The application for orders under s 109(1)(a) is dismissed.
12.The Tribunal will review this order by 14 May 2010.
I certify that this and the preceding [104] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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