GYM
[2017] WASAT 136
•20 OCTOBER 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GYM [2017] WASAT 136
MEMBER: MS C WALLACE (SENIOR MEMBER)
MS M CONNOR (MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
HEARD: 21 APRIL, 14 SEPTEMBER AND 9 OCTOBER 2017
DELIVERED : 20 OCTOBER 2017
FILE NO/S: GAA 1033 of 2017
GAA 1869 of 2017
BETWEEN :GYM
Represented Person
Catchwords:
Guardianship and administration - Dementia - Need for guardian - Whether there are less restrictive options - Financial exploitation - Directions to administrator required
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(1), s 43(1)(b), s 43(1)(c), s 44(1), s 44(2), s 51, s 64(1)(a), s 64(1)(b), s 64(3)(a), s 68(1), s 68(3), s 70, s 71, s 84, s 84(a), s 90(2), s 110ZD
Result:
Public Advocate appointed limited guardian to make decisions in respect of services and contact
Public Trustee appointed plenary administrator with directions
Summary of Tribunal's decision:
This matter involved an application brought pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking the appointment of an administrator for the represented person (GYM) who suffers from dementia. The Tribunal was also required to review, pursuant to s 84 of the GA Act, a guardianship order made appointing the Public Advocate as limited guardian for GYM to make treatment, accommodation, services and contact decisions.
In respect of the administration application, the Tribunal found that there was no less restrictive option available to the appointment of a plenary administrator. The Tribunal found that it should appoint the Public Trustee as independent administrator rather than GYM's three adult sons because it found that they were unsuitable. The sons of GYM had been involved in a number of questionable transactions, including the gifting of large sums of money and the gifting of GYM's home, in circumstances where they knew that she lacked the requisite legal capacity. It was therefore necessary for the administrator to be directed to investigate those transactions and if appropriate to take action to recover GYM's estate.
In respect of the review of the guardianship order, the Tribunal found that there was no ongoing need for the appointment of a guardian to make treatment or accommodation decisions for GYM. However, the Tribunal found that there was an ongoing need for a limited guardian to make services and contact decisions. The Tribunal decided that those decisions ought to be made by the Public Advocate and that GYM's sons were not suitable for the role. The sons had failed to take steps, or to facilitate others taking steps, to assess GYM's functioning in her home to ascertain the level of services she may require to support her to continue to live independently. In addition, the contact decision making function was found to be required due to the ongoing conflict between GYM's sons and her grandchildren and issues of the sons obstructing the grandchildren's contact with GYM. In the circumstances it was therefore not appropriate for the sons to be appointed in that decisionmaking role.
The Tribunal determined that a three year review period was appropriate for the administration order and a 12 month review period was appropriate for the guardianship order.
Category: B
Representation:
Counsel:
Represented Person : Mr Lochore
Solicitors:
Represented Person : Taylor Smart
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
KRM [2017] WASAT 135
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This matter is before the Tribunal pursuant to s 40 and s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act). The s 40 application was brought by the represented person's granddaughter, BM, on 10 April 2017 seeking the appointment of an independent guardian and administrator by the Tribunal. That application was heard by a differently constituted Tribunal on 21 April 2017 at which time orders were made appointing the Public Advocate as independent guardian with decisionmaking functions in the areas of medical treatment, services, accommodation and contact. The guardianship order was required to be reviewed pursuant to s 84 of the GA Act by 24 July 2017.
That part of the s 40 application seeking that the Tribunal appoint an independent administrator was part heard by the Tribunal on 21 April 2017. Although the Tribunal found at that time that the represented person (GYM) lacked the capability to make reasonable judgments in respect of matters relating to all of her estate, the matter was adjourned so that investigations could be conducted and further evidence provided to the Tribunal addressing the question as to whether there was a need for an administration order or whether there were less restrictive options available.
These published reasons set out the decision of the Tribunal in respect of the administration application and also the review of the guardianship order dated 21 April 2017. It is useful to provide a brief history of the proceeding in the Tribunal, particularly because the administration application was a matter which was partheard. The history of the proceeding in the Tribunal is also relevant to certain transactions which took place prior to publishing these reasons.
History of proceedings in the Tribunal
As already mentioned, the represented person's granddaughter, BM, made an application pursuant to s 40 of the GA Act on 10 April 2017 seeking the urgent appointment of an independent guardian and an independent administrator for GYM (pages 121 of Exhibit GM1). The asserted basis of the application is set out on page 4 of that document and in summary form provided the following information:
•GYM had been suffering from dementia for approximately five years.
•GYM was diagnosed with a heart condition which required medication which was not regularly being administered.
•In GYM's home there was often insufficient or expired food and the applicant had observed that GYM had lost a significant amount of weight.
•GYM had missed multiple medical appointments and family events.
•GYM's home was dirty and unkempt and presented in a dilapidated unsafe condition.
•GYM was unaware of her financial circumstances and was unable to explain what had become of the proceeds from the sale of a significant asset.
•GYM's landline was disconnected and other family members' telephone numbers had been deleted from her mobile phone and/or blocked to prevent them from contacting her.
•The applicant was concerned that GYM's decisionmaking capacity had significantly diminished as had her health and that she was at risk of being taken advantage of.
The Tribunal received a second s 40 application in respect of GYM on 19 April 2017 filed by her son CM (pages 177199 of Exhibit GM1). CM sought orders from the Tribunal appointing a guardian and an administrator and proposed himself and his brother GM in those decisionmaking roles. As far as identifying the nature of GYM's decisionmaking disability the application was consistent with BM's application. It noted that GYM was suffering from dementia and was 'unsure of making decisions in various degrees such as financial, cleaning, hygiene etc' (page 181 of Exhibit GM1).
On the same day CM also lodged a s 40 application with the Tribunal in respect of his father, KRM (the details of which appear in KRM [2017] WASAT 135 (KRM)) also seeking for himself and his brother GM to be appointed guardian and administrator on an urgent basis. That application identified that the KRM also suffered with dementia and was becoming unsure of making financial decisions.
Both applications in respect of GYM and her husband were listed for an urgent hearing before Member Connor on 21 April 2017. At that hearing GYM and KRM were legally represented. The couple's third son, BKM, was also legally represented. All other interested parties appeared in person including GYM's two other sons, CM and GM. The medical evidence in relation to decisionmaking capability before the Tribunal at this time can be summarised as including:
•A medical report dated 19 April 2017 prepared by Dr James Millward, GYM's general medical practitioner, noting that GYM had cognitive impairment likely being dementia and lacked capability to make decisions in all areas including financial decisionmaking as well as personal decisionmaking.
•A medical report dated 20 April 2017 prepared by Dr Jason Harper, geriatrician, who attended to GYM during a brief emergency hospitalisation in April 2017 which noted that she had a diagnosis of dementia (likely Alzheimer's) and lacked the capability to make decisions in all areas of decisionmaking including financial and personal decision making.
•Letters prepared by Dr Stephen Ford, psychogeriatrician, dated 19 April 2017 addressed to Dr Harper stating that he had reviewed GYM on ward at Joondalup Health Campus on 18 April 2017 and noted that she evidenced 'significant dementia which is in keeping with Alzheimer's disease'. Dr Ford referenced that GYM scored 17 out of 30 on a mini mental state examination. Dr Ford concluded that it was clear that GYM lacked decisional capacity in relation to important matters such as accommodation and finances.
Not surprisingly, on the basis of the above unequivocal medical evidence no interested party in attendance at the hearing on 21 April 2017 sought to question whether the presumption of capability had been displaced in respect of GYM. Mr Wilson, representing GYM, informed the Tribunal that he would not be disputing the issue of lack of capability in relation to GYM (T:6; 21.04.17). Indeed Mr Wilson made the following comment to the Tribunal:
WILSON, MR: The medical evidence about [GYM] is reasonably clear that she lacks capacity in all domains.
(T:7; 21.04.17)
At this initial hearing the applicant, BM, gave evidence under affirmation. Because there were some concerns raised by counsel at the resumed hearing as to the lack of oral evidence given by BM and questions raised as to her motivations in making the s 40 application, it is important to set out the evidence that she gave to the Tribunal at the early stages of the proceeding. Relevant parts of that evidence are set out below:
[BM]:... the reason why I've put in the application was for my nanna, because I feel that she lacks capacity, and she needs support. And there has been examples of not physical abuse, but emotional, financial, and in terms of not necessarily what – anything that [GM] and [CM] have done, but [BKM], in isolating Nanna and Grandad from the rest of the family who have regular contact with them. And I have detailed my concerns in the application that I submitted.
...
[BM]:Based on my nanna's, you know, capacity, I think that it would be appropriate to have an independent person to, you know, make decisions, financial and caring decision, because, from what I'm aware of, you know, there are occasions often where my nanna isn't taking her medication. She has lost a significant amount of weight. There's definitely need in the house for assistance with some cleaning. When we last went to their house, there was plumbing was not – wasn't working. You know, just general, you know, ...
...
[BM]:... up until the last few weeks, both [GM] and [CM] have had no contact with nanna and granddad for about five years or so.
...
[BM]:And [CM] also being part of, you know, going along with [BKM] in, you know, not allowing us to have contact with our grandparents. He was there when my – when [BKM] directed his nephew to assault me. And he didn't do anything to stop that.
...
CONNOR, MS: - - - there's still issues of conflict between - - -
[BM]:Yes. And when I've tried to contact him, when I were on the 7 April, both [CM] and his wife went over to nanna and granddad's house when my granddad still had his iPhone. And I asked on three occasions to please speak to them. And they didn't want to speak to me. So I have tried to have contact with them, to, you know, resolve this as a family. And, you know, just false allegations have been made in terms of, you know, claims about me stealing money and jewellery.
Things like that. Which is completely false and it's offensive. ...
[GM] and [CM] had a dispute with my grandparents about five years ago over a drag racing car being left at their property. And after that time, there has been no contact. So I do understand they've got back in touch now, to – and they want to assist, but I don't feel comfortable with that, given the issues that have come up over the last few weeks. I think that it's better so there's no family conflict, because it distresses my grandparents. That an independent person is made to – you know, is the person that makes the decision.
...
WILSON, MR: ... [BM] said there were instances of emotional and financial abuse, but that's a conclusionary statement. There's not much meat on that allegation. ...
[BM]:I – there is evidence of that, because their assets have been sold. Both of their cars and their farm. And neither of grandparents know where the money has gone.
...
[BM]:What about both of the cars and all of the chark and the tractor and all the farming equipment?
...
WILSON, MR; ... Any assets that have been sold were sold by them.
[BM]:That's not true. They were sold on Gumtree by [BKM].
...
[BM]:... I have concerns about financial emotional abuse. And [CM] made false allegations about myself, you know, taking money and jewellery, which this is the first, you know, I've heard about it, and the police have not contacted me.
(T:914; 21.04.17)
As previously noted, the Tribunal on this occasion made declarations as to lack of capability and appointed the Public Advocate as limited guardian to make decisions on behalf of the represented person.
In relation to the appointment of an administrator and the s 40 application in respect of GYM's husband, Member Connor made the following observations:
CONNOR, MS: ... So in respect to the administration orders, although I am of the view that [GYM] is a person to whom an administration order can be made at this stage, I'm concerned about the allegations that have been made and I think that they need to be investigated. And that will help to inform me whether there is a need for someone to be appointed or not. In respect to [KRM] and the administration, he does have a diagnosis of dementia, likely Alzheimer's and there has been a test undertaken recently where I think it was a score out of 17 out of 30. ... but Dr Ford indicated that he thought there should be further testing of [KRM]. So on that basis on the evidence I've got before me I'm not satisfied that the presumption has been rebutted and that further investigations need to be undertaken for that to occur.
So I'm going to adjourn that matter to when we come back and I will set those orders in respect to that. And that the Public Advocate investigate the allegations in respect to the financial abuse and make recommendations as to whether there is a need for an administrator in respect to both [KRM] and [GYM], and recommendations as to who should be appointed. ...
(T:28; 21.04.17)
The adjourned hearing in respect of GYM and KRM, as well as the review of the guardianship order made by the Tribunal in respect to GYM, were back before the Tribunal reconstituted by Member Eddy on 24 July 2017. At that time the represented person and KRM remained represented by Mr Wilson. Their son BKM was no longer legally represented at this time, however, his brothers CM and GM were represented by counsel, Ms Taylor.
Member Eddy made the following observations at the commencement of the hearing:
EDDY, MS:…I've got to raise with you first as to whether we can proceed today. There is two questions in my mind. One is, Mr Wilson, while it's a matter entirely for you, I would on the face of it be surprised to find there was a basis on which you could act for both [GYM] and [KRM]. It would appear to me there is a very patent conflict of interest between them, and you would therefore have difficulty acting for either. ... But in circumstances where [KRM], if he attests that he is capable, partook of a transaction where the evidence before the tribunal is pretty unequivocal that [GYM] didn't have capacity that deprived her of an interest, that's a pretty clear conflict to me I think, Mr Wilson. But as I say, a matter for you.
Ms Taylor, yours is not so clear. As in not yours, but the person who has instructed you. It just raised the question in my mind – and I will leave that entirely for you. And I don't have the same level of concern, but the lawyer who now represents [CM] and [GM] originally represented [BKM]. [BKM] appears to be a person involved in a transaction whereby the house in Mullaloo is transferred from [KRM] and [GYM] to the three sons. That's potentially a very questionable transaction depending on the findings the tribunal ultimately makes. ... if [BKM] and their interests aren't aligned, that's potentially a problem.
... As I say, Mr Wilson, entirely a matter for you. I can't dictate to you at all as to what your ethical responsibilities are or aren't, but if you withdrew I would have to adjourn in order to allow them the opportunity to obtain alternative representation. My other problem is I've been handed witness statements from [KRM] and [GYM] this morning, which is patently insufficient time if you're going to provide witness evidence in a hearing. And also, [KRM] and [GYM] aren't here. And I'm not going to allow witness evidence to be put forward before me without a chance to cross-examine them, particularly in circumstances where these statements are virtually identical in wording, and also where there is extensive evidence from a neuropsychologist indicating that [GYM], at least, didn't have any understanding about various transactions, etcetera, that she purports to make statements about in her statement.
So that's very concerning. I will require them to be here. If they wish to have evidence, they have every right to put evidence, but they will be here for questioning. So I need to adjourn the hearing in order to allow that to happen. Both of these things in my view could have been avoided. Mr Wilson, I think, has not acted well in relation to last minute filing of statements. And so you've all come here prepared and I don't see how I can proceed. Does anyone want to make any submissions?
...
WILSON, MR: Well, I don't wish to make any decision about it right now. I will take the Member's observations on board and give them some consideration. I don't intend to withdraw today but I will consider your comments.
(T:24; 24.07.17)
Ultimately the Tribunal could not proceed on 24 July 2017 for a number of reasons including issues of conflict for the legal representatives but also the absence of GYM and KRM in circumstances where witness statements had been filed on their behalf. There was also the difficulty that none of the legal representatives had sought to summons or request the attendance of medical practitioners to give oral evidence in a context where there was a real issue in contention in relation to whether the presumption of capability in respect of KRM had been rebutted. The presiding member therefore adjourned to prepare summons requiring the attendance of both GYM and KRM and the doctors who had provided cognitive capacity evidence in respect of KRM.
The Tribunal was reconstituted on the next occasion on 4 August 2017 with Member Eddy presiding together with Member Connor and Senior Sessional Member Dr Clarnette. On this occasion, GYM and KRM were separately represented by new solicitors and counsel. The Public Advocate, BM and another granddaughter, AM, were all also legally represented at this hearing. On this occasion the solicitors and counsel previously representing BKM, and then subsequently GM and CM, were only representing GM. It appeared therefore that the observations made by Member Eddy at the previous occasion had been duly considered.
The panel was required to consider applications made by counsel representing KRM and GM seeking that Member Eddy recuse herself. The basis of the applications was the contention that Member Eddy had expressed views which raised questions in the mind of a fairminded lay observer about her ability to bring an impartial mind to the question as to, if GYM or KRM needed a guardian and/or administrator appointed, who ought to be appointed. That is, that Member Eddy had closed her mind to whether one or more of the three sons would be suitable to be appointed. Member Eddy made the decision to recuse herself. The proceedings were therefore adjourned to a further date.
The Tribunal was again reconstituted and the hearing recommenced in respect of each matter on 14 September 2017 with Senior Member Wallace presiding together with Member Connor and Senior Sessional Member Dr Isaachsen. The matter did not conclude on that day and the panel sat a second day on 9 October 2017 at which time the proceedings were concluded and the decision reserved. In addition on 9 October 2017 the Tribunal made an interim s 65 order both in respect to this proceeding and the application in respect of KRM appointing the Public Trustee on an interim basis as plenary administrator limited to making all decisions in relation to a joint bank account held in the names of GYM and KRM. The evidence that the Tribunal received during those two further days of hearing relevant to its determination will be addressed later in these reasons. GYM did not give oral evidence at the resumed hearing and reliance on her written witness statement was withdrawn.
The legal framework
The primary concern of the Tribunal in guardianship and administration proceedings is the best interests of the represented person or proposed represented person; s 4(2) of the GA Act.
The starting premise in all guardianship and administration proceedings is the presumption of capability which must be rebutted in order for the Tribunal to consider the subsequent question as to whether the represented person or proposed represented person needs a guardian or an administrator and whether there are less restrictive options available to them; s 4(3), s 4(4) and s 4(5) of the GA Act. The standard of proof to be applied is that as set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, 361-361. That is, the Tribunal needs to be satisfied on a balance of probabilities having regard to the nature and seriousness of the allegations. The Tribunal accepts that considering removing a person's right to make important decisions in respect of themselves is one of the most serious decisions that the Tribunal could make and therefore evidence of lack of capability sufficient to displace the statutory presumption of capability must be unambiguous and clear in its terms.
If the Tribunal appoints a guardian it can only do so pursuant s 43(1)(b) of the GA Act if it is satisfied on the evidence before it that GYM is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
Pursuant to s 64(1)(a) of the GA Act the Tribunal can only appoint an administrator for GYM if it is satisfied on the evidence before it that by reason of a mental disability that she is unable to make reasonable judgments in respect of matters relating to all or part of her estate. The parties accepted in this matter that a diagnosis of dementia is a mental disability for the purposes of the GA Act.
As mentioned, even if a finding of incapability is made by the Tribunal, it must also find that there is a current need for either a guardian and/or administrator to be appointed to be able to make the further declaration required pursuant to s 43(1)(c) and/or s 64(1)(b) of the GA Act.
In guardianship and administration applications the Tribunal must ascertain as far as possible the views and wishes of the represented person/proposed represented person; s 4(7) of the GA Act.
If the Tribunal determines that GYM lacks capability to make personal decisions and that there is a need for the appointment of a guardian, the Tribunal needs to assess the suitability and willingness of any person proposing himself or herself in that decisionmaking role. In particular, the Tribunal needs to assess whether the proposed guardian:
a)will act in the best interests of GYM;
b)is not in a position where their interests conflict or may conflict with the interests of GYM; and
c)is otherwise suitable to act as the guardian.
(s 44(1) of the GA Act)
The Tribunal also needs to take into account pursuant to s 44(2) of the GA Act the following factors:
a)the desirability of preserving existing relationships within the family of GYM;
b)the compatibility of the proposed appointee with GYM and with the administrator (if any) of GYM's estate;
c)the wishes of GYM; and
d)whether the proposed appointee will be able to perform the functions vested in them.
In respect of determining who should be appointed as an administrator for a proposed represented person, s 68(1) of the GA Act requires the Tribunal to assess whether a proposed administrator will act in the best interests of GYM and is otherwise suitable to act as the administrator of GYM's estate. Pursuant to subsection (3) the Tribunal also needs to take into account as far as is possible:
a)the compatibility of the proposed appointee with GYM and with the guardian (if any) of that person;
b)the wishes of GYM; and
c)whether the proposed appointee will be able to perform the functions proposed to be invested in the administrator.
If the Tribunal appoints either a guardian and/or an administrator those appointed to those roles must act in the best interests of the represented person; s 51 and s 70 of the GA Act.
In relation to the s 84 review of the guardianship order the Tribunal needs to consider, when determining the best interests of the represented person, whether it is appropriate to confirm the order under review or:
a)amend the order;
b)revoke the order or revoke the order and substitute another order for it; or
c)without limiting (a) and (b) above
i)revoke the appointment of any guardian;
ii)appoint a new or additional guardian;
iii)appoint an alternate guardian.
(s 90 of the GA Act)
A review pursuant to s 84 of the GA Act is undertaken under the Tribunal's original jurisdiction; s 90(2) of the GA Act. Any order made appointing the guardian or administrator by the Tribunal must be reviewed within a particular period of time not exceeding five years from the date that the order was made; s 84(a) of the GA Act.
Issues for determination
It is not in contention that the presumption of capability in favour of GYM in respect of her ability to make decisions both in respect of her finances and estate and personal areas of decisionmaking has clearly and irrefutably been rebutted on the medical evidence before the Tribunal. In addition, it is accepted by all of the parties that GYM suffers from a mental disability being dementia. Indeed, this position was accepted on the first occasion that the parties attended at the Tribunal on 21 April 2017. It is on this basis that the Tribunal did not receive oral evidence from medical practitioners at any time during the course of the proceeding in respect of GYM's cognitive capability. This is therefore not an issue for determination in this proceeding.
There were two main areas of contention in the proceeding which arise as issues requiring determination by the Tribunal. Firstly, is the question as to whether GYM needs either a guardian or an administrator to be appointed. The question of need is in respect of whether there are any decisions which currently need to be made in the best interests of GYM and if decisions do need to be made whether there are less restrictive options available to GYM. Secondly, if the Tribunal were to find that GYM currently needs a guardian and/or administrator to be appointed, the issue for determination for the Tribunal is whether there should be independent appointments, or whether a family member or members should be appointed. GYM's three sons propose themselves either singularly or jointly in respect of both guardianship and administration. Therefore it is necessary for the Tribunal to consider their suitability as proposed appointees.
Lastly, if the Tribunal does make either a guardianship and/or administration order consideration needs to be given as to whether those orders ought to be limited or plenary in nature and if limited what functions ought to be bestowed on those roles. As a related issue, in respect of administration, the Tribunal needs to consider whether particular directions need to be made to the administrator (s 71(4) of the GA Act) and/or whether the appointment should be made subject to conditions and restrictions (s 64(3)(a) of the GA Act). If the Tribunal makes either a guardianship and/or administration order it needs to consider the term of the order before review is appropriate.
Background facts
GYM is a lady aged 81 years with a diagnosis of dementia and who presently takes medication for hypertension, hypercholesterolaemia, gastrooesophageal reflux disease and depression (page 44 of Exhibit GM1). Shortly prior to the s 40 applications being lodged with the Tribunal, GYM had been residing in her residential home, jointly owned with her husband in Mullaloo. GYM has been married to KRM for 63 years. They originally lived and worked on a farm in Wyening (often referred to as the 'Bolgart farm'). They have three adult sons being GM, BKM and CM who all reside in the suburbs of Perth. They also have a number of grandchildren including BM and AM who are the adult children of BKM. There has been some longstanding conflict between BM and AM and their father BKM, particularly between BM and BKM.
It is uncontroversial between the parties that during the course of 2016 a significant amount of farm machinery and incidentals were sold by GYM and her husband with significant assistance from their son, BKM. This culminated in the ultimate sale of the farm property itself which settled on 1 March 2017 for the amount of $1,615,309.23. The proceeds of the settlement of the farm were deposited into a bank account in the joint names of GYM and her husband. On 8 March 2017 $50,000 was transferred out of another jointly held bank account of GYM and KRM into an account in the name of BKM. The amount of $50,000 was paid to BKM as commission for his role in the sale of the farm. This comprised of a commission of just over 3% and represented a standard commercial commission percentage (T:209; 09.10.17).
As previously noted, GYM's granddaughter, BM, made a s 40 application seeking the appointment of an independent guardian and administrator with the Tribunal in respect of GYM on 10 April 2017.
On 12 April 2017 BM attended the Mullaloo home to visit her grandparents. BKM was present and an altercation arose between the parties which required the attendance of the police. BM alleged (refer to [9] above) that BKM asked his nephew to physically remove her from the property. Although the Tribunal is uncertain as to the exact events of the evening of 12 April 2017, what is clear is that shortly following the incident BM, as the person protected, obtained a violence restraining order on 18 April 2017 from the Perth Magistrates Court restraining contact between BKM and herself (page 205 of Exhibit GM1). BKM's nephew was also charged with the assault of BM (T:213; 09.10.17).
On 13 April 2017 BM arranged for GYM and her husband to see their general medical practitioner, Dr Millward, who arranged for their urgent admission to Joondalup Health Campus. Cognitive capacity assessments undertaken during that admission, as previous noted, confirmed that GYM is suffering from a mental disability, being dementia, likely Alzheimer's. The admission was deemed necessary in a context of information provided by BM to Dr Millward in respect of concerns regarding health and safety, possible neglect and financial exploitation. During the hospital admission BM was noted as next of kin and contact was prevented by GYM's three sons due to the allegations and concerns raised by BM.
Also on 13 April 2017, of relevance, an amount of $1,606,523 was transferred from a joint bank account in the name of GYM and her husband to an account in the sole name of BKM. On the same day a further large withdrawal was made by BKM transferring the amount of $244,314 from GYM and KRM's joint bank account into BKM's bank account. These transactions were performed by BKM without either GYM or KRM's knowledge because they had been admitted to Joondalup Health Campus and were not in contact with BKM (T:217; 09.10.17). The transfers were performed with the knowledge of BKM's two brothers (T:242-244; 273-276; 09.10.17).
Ultimately GYM was discharged against medical advice on 20 April 2017 with the assistance of her son BKM who attended the hospital under a false name so as to enable him to gain access to his parents (page 58 of Exhibit KM1).
GYM and her husband were not in a physical state to return home following their discharge from hospital and stayed with their son CM and his wife, effectively convalescing, until about July 2017, a period of approximately 13 weeks. During that period the sons of GYM attended to repairing a number of issues with the home at Mullaloo and preparing it for their parents' return.
As previously mentioned, on 19 April 2017, CM made s 40 applications in respect of GYM and KRM seeking to be appointed, with his brother GM, as joint guardians and administrators.
As noted, the Tribunal conducted a hearing on 21 April 2017 at which time the Public Advocate was appointed as limited guardian of GYM for a period of three months. Although the Tribunal found that GYM lacked capability to make reasonable judgments in respect of matters relating to all of her estate, an administrator was not appointed at that time so that further investigations and evidence could be presented in respect to the question of need and whether less restrictive options were available.
On 15 May 2017 GYM's three sons attended with her and her husband at the offices of Mr Linfoot, solicitor, in order to prepare a Deed of Gift and associated transfer documentation to facilitate the transfer of GYM's residential property in Mullaloo to her three sons. A will was also prepared at this time for GYM. GYM executed all relevant documentation in respect of the transfer/gifting of her property and her will. Mr Linfoot was not made aware of the Tribunal proceedings by her three sons in respect of either GYM or KRM (T:209; 237; 278; 09.10.17). The transfer of the Mullaloo property was registered with Landgate on 31 May 2017 (page 132 of exhibit GM1).
By 30 June 2017 the joint accounts of GYM and KRM were closed. The only remaining funds at that time totalled $2,564.84. Also on the same day a new joint bank account was opened into which the $2,564.84 was deposited.
On 26 July 2017 BKM transferred to his parents' account the amount of $200,000 which had previously been withdrawn by him on 13 April 2017. During the period of convalescence of GYM and her husband with her son CM there were regular cash withdrawals made by KRM in the presence of CM in the amount of $1,000 (pages 210, 211 and 224 of Exhibit GM1 and Exhibit GM3). On some occasions several such withdrawals were made by KRM during the course of a week. In addition during that time approximately $3,000 was paid to CM by way of rent for the 13 weeks that GYM and her husband resided with CM (T:229; 09.10.17). GYM and KRM also paid a significant amount on grocery expenses during that period (pages 210, 216-218 and 224 of Exhibit GM1).
In July 2017, GYM and her husband returned to the Mullaloo residence and remain living there. They receive services by way of Silver Chain in respect of assistance for GYM with taking medication, preparation of meals and assistance with cleaning the home. Their three sons attend regularly, and also offer significant assistance over the weekend when no external service providers are attending.
On 18 August 2017, GYM and her husband paid a tax debt to the Australian Taxation Office in the amount of $33,014.05 in respect of the sale of their farm. Other significant expenses include legal expenses and they have also contributed to the payment of BKM's and GM's legal fees (T:182184; 09.10.17).
At the time of the hearing concluding on 9 October 2017 it was estimated that the remaining funds in the joint bank account of GYM and KRM is approximately $40,000. Ongoing legal expenses will need to be paid from that account in addition to weekly expenditure which is estimated at $863.50 per week. GYM currently has no source of income and is not currently entitled to receive a Centrelink old age pension (Exhibit GM3).
Determination
Whether GYM needs a guardian
At the present time GYM has an independent guardian appointed to make decisions in relation to treatment, accommodation, services and contact. The Tribunal intends to deal with each area of decisionmaking individually in determining whether there is a current need for an ongoing appointment.
Medical treatment
There has been a very limited need for a medical treatment guardian for GYM since the appointment made on 21 April 2017. The only decision that the appointed guardian has been required to make is to consent to an influenza vaccination injection. The injection was arranged by GYM's sons and consent was given by the delegated guardian.
Aside from the medical issues noted at [33] above it is not in dispute that GYM is in relatively good physical condition. In essence there have been no significant medical treatment decisions which have needed to be made and nor are any currently anticipated. However, it is not inconceivable that at some not too distant future point in time that GYM may require medical assistance. She is of 81 years of age and does have health concerns in addition to a progressive mental disability. She continues to live independently and there are no doubt risks associated with doing so including a risk of falling or injuring herself by mishap. However, there is no evidence before the Tribunal to suggest that in such circumstances that s 110ZD of the GA Act could not operate as a less restrictive option such that a medical decision could be made in GYM's best interests by her nearest relative.
However, the Tribunal does have some reservations to the extent that if GYM was to require hospitalisation for a medical procedure, whether her sons would notify other family members, in particular, BM and AM. There was certainly a significant conflict which arose on the evening of 12 April 2017 which required police attendance and following which criminal charges were laid. Shortly after that incident, there was an emergency hospital admission of GYM and her husband where BM felt it was necessary to prevent access to GYM and her husband by her three sons. There are also allegations made by BM in her s 40 application that contact with GYM and KRM had been prohibited, particularly by BKM. Such allegations are supported in part by the provision of copies of text messages exchanged between BK and BKM which appear at page 327 of Exhibit GM1 and which were acknowledged by BKM in his oral evidence (T:225; 09.10.17).
There were also allegations made by each of the sons in their oral evidence against BM and suggesting that GYM's grandchildren had misappropriated funds and jewellery (T: 207-208; 247; 264-266; 274; 09.10.17). However, when each of the sons was asked whether they would communicate significant medical matters to GYM's grandchildren they each gave evidence in the affirmative.
It is not disputed that the legislation favours less restrictive options and only authorises the Tribunal to appoint a guardian, being the most restrictive option available, if it is satisfied on a balance of probabilities that less restrictive options are not able to operate in the person's best interests. Whilst the Tribunal does have some reservations about the ability of GYM's sons, particularly BKM, to communicate significant health matters to GYM's grandchildren, we are not satisfied on the balance of probabilities that they will not do so. In the Tribunal's view, in the sons' oral evidence they clearly indicated their understanding of the importance that they do so.
The Tribunal is reluctant to remove what is undoubtedly the most personal decision from GYM's closest family members, in the absence of clear evidence to support a finding that the less restrictive option would not operate in GYM's best interests. In addition, the Tribunal must take into account GYM's wishes and views which were conveyed on her behalf by her counsel. Those wishes were very clear that she wanted her sons to make any decision on her behalf.
Thus whilst the Tribunal does have some reservations, limited to the sons' ability to communicate significant health matters to the grandchildren, on balance the Tribunal's view is that there is a less restrictive option available for treatment decisions which ought to take precedence over a more restrictive option. The Tribunal therefore finds that there is no ongoing need for the appointment of an independent guardian for the purposes of making treatment decisions.
Accommodation
As previously mentioned GYM at the moment is living in the Mullaloo residence with her husband of 63 years supported by Silver Chain one hour a day five days a week in addition to significant support from her three sons. No party suggested at the hearing that the recent accommodation decision made by the sons was not a decision made in GYM's best interests. Although the decision occurred in the absence of consent from the appointed guardian, the appointed guardian agreed that the decision was appropriate.
The Tribunal also notes that it is GYM's desire to remain in her 'own home' with her husband into the foreseeable future. It was not submitted to the Tribunal that any change in accommodation is likely in the near future. However, all parties acknowledged that at some future point GYM's needs may increase to the point where she can no longer be safely supported at her current residence. That time has not yet been reached.
Therefore the Tribunal's view is that there is no current need or foreseeable need in the shortterm for an accommodation decision to be made for GYM. We are hopeful that at the future point in time when such a decision needs to be made that this could be made by GYM's sons informally in her best interests. The Tribunal accepts their oral evidence at the hearing where each of them acknowledged that the point may be reached where GYM required residential care and each of them conceded that they were willing to consider changing accommodation at that time even though it may not coincide with the wishes of GYM. Therefore the Tribunal finds that there is no current need for the appointment of a guardian to make an accommodation decision for GYM.
Services
Currently the Public Advocate is appointed to make services decisions on behalf of GYM. However, similarly with the change in accommodation for GYM, the services decision, limited as it was, has been made by GYM's sons in the absence of the appointed guardian. The sons made the decision to arrange for Silver Chain to attend an hour a day Monday to Friday to provide limited support services. Informally each of them also provides significant support themselves. There is no evidence before the Tribunal that the current level of support is not working in the best interests of GYM.
However, the Tribunal does remain concerned that comprehensive formal assessments have not yet been undertaken to properly assess the level of need for services for GYM despite the fact that she has significant cognitive deficits and other health concerns (refer to [33] above) and would therefore require a high level of support to remain living independently in the community. The Tribunal is therefore not able to confidently conclude that the current supports are sufficient in the absence of a comprehensive assessment which would indicate what level of support GYM requires which could be compared with what is currently being provided for her.
The Tribunal is uncertain as to why GYM's sons have not taken steps to arrange for such assessments to be done. One answer could be that in their view that responsibility lies with the appointed guardian. However, the Tribunal does not accept that positon because the fact that there was an appointed guardian did not prevent them from making significant decisions in respect to accommodation and services without recourse to the guardian. Their actions clearly evidence their strong views that an independent guardian was simply unnecessary and that they are quite capable of making all decisions on behalf of their mother. Indeed this is what they have submitted to the Tribunal and is a position which is entirely consistent with the actions that they have taken. Therefore it was open to them to arrange for comprehensive assessments to be undertaken and that simply has not been done.
This issue was raised with the sons by the appointed guardian who requested updates which were required so that a home assessment could be arranged (T:127; 14.09.17). For whatever reason that information was not forthcoming to the guardian and the assessments were never arranged. The assessments suggested by the guardian included a thorough Aged Care Assessment Team assessment including a home assessment of GYM's functioning in her home including physiotherapy and occupational therapy assessments (T:126 and 134; 14.09.17).
Although the Tribunal accepts that the sons are actively engaged in a carer role and are providing significant informal supports to their parents, they seem to lack a level of understanding as to the need for formal comprehensive assessments to be undertaken to ensure that the level of support is sufficient and will meet GYM's ongoing and developing needs. Even if formal assessments simply confirmed that the current level of support was sufficient, it would clearly be a sensible step for the sons to undertake if they were acting in GYM's best interests in respect of the provision of services. It seems that their position is simply because there are no current issues there is therefore no need for a comprehensive assessment (T:192; 09.10.17).
None of the sons in oral evidence indicated that any further assessment was required. Indeed they all gave evidence that the current level of support was sufficient. This position would have been put in a more convincing manner if the appropriate assessments had in fact been conducted, as proposed by the independent guardian, and the sons had taken any suggestions on board and put all relevant services in place as required. The failure to take those steps, having been raised with the sons, is of concern to the Tribunal. It is for that reason that the Tribunal has reached the view that the less restrictive option, whereby services are effectively predominately provided by family members in the absence of any comprehensive assessment, is not a decision which is in the best interests of GYM.
In the Tribunal's view therefore there is an ongoing need for the appointment of a guardian to make services decisions. The sons propose themselves to be considered for any appointment and as previously noted, GYM's wish is for one or more of her sons to be appointed if a guardian were to be appointed. However, for the reasons set out above the Tribunal is of the view that GYM's sons are not acting in her best interests in respect of services by failing to arrange or facilitate the arrangement of comprehensive assessments. We therefore find that they are not suitable to be appointed in this role.
No other family members proposed themselves as guardian. In the circumstances it is left to the Tribunal to continue the appointment of the Public Advocate. The Tribunal does so despite submissions made by counsel for CM of an alleged bias by the current delegated guardian in favour of BM and against the sons. One of the main reasons for submitting bias was because the appointed guardian referred to BM by an abbreviation of her name. The Tribunal does not intend to deal with the allegation in any detail other than to note that we reject the submission in its entirety. There is no personal relationship between the appointed guardian and BM. It is completely immaterial that the guardian would refer to BM by her preferred name. The Tribunal also notes that a number of parties and counsel themselves at times during the course of the proceeding referred to BM by the very same abbreviated name, including counsel who submitted that the use of the name indicated bias (T:145; 14.09.17).
The most logical reason for referring to BM by her abbreviated name, in the Tribunal's view, is obvious it is her preferred name that she is widely known by. There was no evidence given by the delegated guardian which would cause the Tribunal any concern whatsoever in respect to alleged bias and it is certainly not a proper basis on which to suggest to the Tribunal that it ought not appoint the Public Advocate. The Public Advocate can delegate the role to any guardian of her choosing. That is a matter entirely for the Public Advocate.
Therefore the Tribunal's view is that there is no alternative to the ongoing appointment of the Public Advocate as independent limited guardian appointed to make decisions in respect of services.
Contact
The Public Advocate is also currently appointed as limited guardian to make decisions in relation to contact. That order was made in the context of the Tribunal being satisfied that there was ongoing conflict between GYM's sons and her grandchildren, particularly BM. Certainly that was evident given the incident which occurred on 12 April 2017 and the admission of GYM and her husband to Joondalup Health Campus in midApril 2017. Indeed counsel representing GYM submitted to the Tribunal that in respect of contact if the Tribunal found that there is a current need for a decisionmaker in that area that it ought to continue to be the Public Advocate (T:201; 09.10.17).
As already acknowledged in [36] above there is evidence of conflict between important family members in the life of GYM. Although each of the sons in evidence attempted to downplay the current level of conflict it was evident in parts of their oral evidence that conflict is an ongoing issue (T:191, 205, 218, 223, 231, 234 and 239; 09.10.17).
In the context of the conflict between the sons and the grandchildren there is a real question raised as to the grandchildren's ability to have contact with GYM. This is particularly so in circumstances where the three sons are often present at GYM's home (on their evidence on a daily basis) and in addition have installed security cameras which send vision directly to their mobile phones of both the outside of GYM's home and the internal living area. This certainly presents an image of control, or at the very least significant oversight, by the sons of those accessing the Mullaloo property in a context where there is ongoing conflict between GYM's family members.
Although BM gave evidence on 21 April 2017 of issues experienced with contact, the Tribunal accepts that she was unable to give further evidence at the hearing on 9 October 2017 as to the current positon regarding contact. However, none of the sons who gave evidence on 9 October 2017 gave any evidence as to the regularity of the grandchildren visiting GYM despite the fact that they would be best placed to give that evidence given their ability to monitor daily those parties who are visiting GYM's home. Therefore in light of the ongoing conflict and the very real ability of the sons to limit the grandchildren's contact with GYM, such actions which would clearly not be in her best interests, the Tribunal finds that there is an ongoing need for a guardian to make contact decisions. Given that the concerns are that the sons may limit the grandchildren's contact with GYM it is not appropriate that they be appointed either singularly or jointly in that role. As submitted on behalf of GYM, such a decision clearly lies with an independent appointment being the Public Advocate. For that reason the Public Advocate will continue to be limited guardian in respect of contact decisions.
Administration
The Tribunal found on 21 April 2017 that GYM lacked the capability to make reasonable judgments in respect of matters relating to all of her estate. The final decision in respect of the appointment of an administrator was not made on that day in order to gather further evidence in relation to whether GYM's husband, KRM, was able to act as a less restrictive option. However, the medical evidence before the Tribunal as at 21 April 2017, to which all interested parties in attendance at the hearing had access to, irrefutably rebutted GYM's capability to make financial and estate decisions in her own best interests. The medical evidence before the Tribunal was also that GYM did not have the capacity to execute an enduring power of attorney whereby she could authorise someone else to act on her behalf (pages 29 and 39 of Exhibit GM1). GYM is therefore a lady of significant cognitive impairment and thus presents with vulnerability in a context where, as at 1 March 2017, she was a lady of some considerable means.
As far as there being a less restrictive option available, the Tribunal found in KRM that GYM's husband is similarly incapable of making reasonable judgments in respect of matters relating to all of his estate. Therefore the Tribunal is unable to find that GYM's estate could be managed informally by her husband.
It is proposed by GYM's sons that if the Tribunal is to find that an administrator is needed for GYM that the Tribunal ought to appoint one or more of them in that role. Interestingly, although counsel for GYM noted that her wish would be for one of her sons to be appointed her administrator, he submitted that the Tribunal ought not to do so and instead should appoint the Public Trustee on the basis that the sons have failed to act in their mother's best interests (T:300; 09.10.17).
We are grateful to GYM's counsel for conceding this point which in our view is the only position which could be put forward in the context of the undisputed facts presented by way of documentary and oral evidence in this proceeding which are set out in [38][45]. In this matter in the Tribunal's view, the evidence speaks for itself. Herewith set out below are the decisions which GYM's sons made or matters of which they were aware, which they gave oral evidence were in their mother's best interests:
a)The proceeds of the sale of the Wyening farm property (absent approximately $8,000) was transferred by BKM from his parents' joint bank account to his own account on 13 April 2017. GYM and KRM were hospitalised at this time and unaware of the transfer. Shortly thereafter it was deposited into an account held jointly by the three sons and then prior to the hearing resuming on 9 October 2017 the funds were equally split into three accounts, one in each of the sons' individual names.
b)Despite receiving a third share of the farm proceeds, BKM also received a commercial rate commission fee of $50,000 from his parents for his role in selling the farm. This commission fee was not deducted from the proceeds of the sale itself.
c)Also on 13 April 2017, BKM transferred $244,314 from his parents' joint account into his own personal account. GYM and KRM were hospitalised at this time and unaware of the transfer. The oral evidence of the sons was that they were all aware of this transfer and agreed to it. The full amount has never been returned.
d)On 15 May 2017, the sons travelled together with GYM and KRM to solicitors' offices to sign documentation effecting the gifting of their home in Mullaloo to the three sons as tenants in common. At the time that the sons participated in this transaction and accepted the gift they were aware that the Tribunal had found that GYM lacked the legal capacity required in order to execute the relevant documentation. Yet they proceeded with the transaction in any event. In addition, they witnessed and were part of GYM executing a will. Each of the sons admitted in oral testimony that they did not make the solicitor, Mr Linfoot, aware that there had been findings in respect to GYM by the Tribunal as to lack of capacity and that she had an independent guardian appointed. They also did not make Mr Linfoot aware that there were ongoing proceedings in which the capacity of KRM was also in question and which was yet to be decided.
e)Each of the sons was aware that GYM and KRM were not eligible for a Centrelink pension and thus had no source of income.
f)Each of the sons knew or ought to have known that GYM and KRM would be required by the Australian Taxation Office to pay capital gains tax in respect of the sale of the farm. The tax payable was $33,014 and was paid by the GYM and her husband on 18 August 2017. Despite receiving the proceeds of that sale and in respect of BKM, receiving an additional commission, none of the sons contributed to the payment of the capital gains tax.
What is very clear to the Tribunal is that a substantial estate has diminished to a fraction of its size within a period of one month, that is, during 13 April 2017 to 15 May 2017. This is in circumstances where it is clear that the remaining limited funds will soon extinguish and where none of the sons have made any financial contribution to their parents' welfare. Despite the sons asserting that they had their parents' best interests at heart and would provide financial support to them, the Tribunal notes the following further facts:
a)During the 13 week convalescence period of GYM and KRM at CM's home, which occurred after the 'gifting' of a significant amount of money from the proceeds of the sale of their farm, GYM and KRM paid approximately $3,000 to CM in rent as well as funding the purchase of groceries.
b)Despite 'gifting' the proceeds from the Wyening farm to their sons and also transferring their home to their sons BKM and GM saw fit to use their parents' funds to pay their own legal fees (T:182184; 09.10.17). There has been no reimbursement of those funds to GYM and KRM.
c)All expenses associated with renovating and repairing the Mullaloo property, despite it now being owned by the three sons, were paid exclusively by GYM and KRM. There was no financial contribution in respect to any of the renovations by the sons themselves, being the legal owners of the property.
d)When BKM transferred $244,314 from the joint bank account of GYM and KRM into his own account, it took three months to return the money and when it was returned an amount of $44,314 was missing. That amount has never been returned to GYM and KRM.
e)Although there is approximately $40,000 remaining in the joint account of GYM and KRM it is understood by the Tribunal that further legal costs will be deducted from that amount which will not be insubstantial, in addition to daytoday living expenses. It is clear to the Tribunal in the circumstances that the remaining funds will be exhausted in a relatively short period of time. Yet none of the sons have taken any steps to contribute financially in any way whatsoever to avoid those funds extinguishing.
f)There were a significant number of very large cash withdrawals being made from ATMs that began following the discharge from hospital of GYM and KRM. It appears that CM was present during each of those withdrawals whilst his parents convalesced in his home. BKM was also aware of these withdrawals. There was no adequate explanation to the Tribunal as to why those cash amounts were not accounted for in the statement of assets and liabilities for GYM. None of the sons has taken any steps despite their knowledge of the withdrawals to restrict or discourage their father from making those withdrawals. The sons could not adequately explain what has become of the cash amounts.
There was only one reason put forward as to why the sons' actions were in GYM's best interests. The reason put forward was that they needed to safeguard their parents' estate from possible exploitation by the grandchildren (T:193-194; 204; 233; 274-275; 09.10.17). The Tribunal simply does not accept this as a credible explanation for the actions of the sons. There is simply no evidence to support an allegation of financial exploitation instigated by the grandchildren. In particular the Tribunal notes the following:
•BM made an application to the Tribunal on 10 April 2017 because of concerns that she had including in relation to potential financial exploitation of her grandmother who at that time had been diagnosed with dementia. BM did not seek for a family member to be appointed but rather sought urgent orders from the Tribunal that the Public Trustee be appointed such that the estate of her grandmother could be managed independently in her grandmother's best interests.
•Although there have been bare allegations made of money going missing from the Mullaloo property prior to the application made by BM in addition to jewellery, those allegations were never investigated by the police, and no charges were ever laid. It was conceded by BKM in testimony that anybody could have taken those items or in fact they could have been gifted by his parents (T:208; 213-214; 09.10.17). BKM also conceded in crossexamination that the police were disinterested in investigating the allegations and noted that it could have been BKM himself who stole the missing items (T:213; 09.10.17). BKM admitted that he had no basis on which to make the allegation (T:214; 09.10.17).
•Although the sons alleged that it was possible that their parents had executed an enduring power of attorney they were clearly aware at all relevant times that no such enduring power of attorney existed (pages 158 and 187 of Exhibit GM1; T:234; 09.10.17).
•The only other person other than GYM and KRM who had access to their joint accounts was BKM (T:193 and 195; 213; 09.10.17). In addition it was only the sons who ever attended the bank, usually BKM, when transactions were made (T:185 and 228; 09.10.17 ). There was no evidence before the Tribunal to suggest that BM or other grandchildren attended a banking institution with either GYM or KRM.
•The only questionable transactions undertaken which could be perceived as financial exploitation were those facilitated by the sons. There is no evidence of any potential or actual exploitation by anybody else. The questionable transactions commenced when the sons became aware that the Tribunal may appoint an independent administrator and thus the sons would potentially no longer be able to access their parents' funds and estate.
•Although BM admitted to having concerns in respect of GYM and KRM's finances it is explained, in the Tribunal's view, by her concerns of possible exploitation. This is entirely consistent with the actions she has taken including making an application seeking an independent administrator to be appointed in order to protect her grandmother's estate.
Based on the uncontested evidence as presented it seems a nonsensical position for the sons to put, that 'we took all of our parents' estate to prevent their grandchildren from similarly doing so' (T:218; 09.10.17). Indeed, the sons having taken almost the entirety of the estate have certainly prevented any potential exploitation of their parents by other parties. However, in doing so they themselves clearly exploited their mother whom they accepted lacked legal capacity. Yet it is submitted by CM's counsel that they have acted in their parents' best interests. It would be inconceivable to the Tribunal to reach such a conclusion on the evidence. The sons have simply taken their parents estate and given nothing back as far as the financial perspective is concerned.
The sons had a number of opportunities to act in their parents' best interests and yet took no such opportunity. They could have given their parents a legal life estate in the Mullaloo property they chose not to. On BKM's evidence he did not want to spend the money associated with giving them such an entitlement (T:222; 09.10.17). They could have contributed their own funds to their parents, but they chose not to. CM could have offered his home to his parents after their hospitalisation without receiving remuneration, but he did not do so. BKM and GM could have paid their own legal expenses but they instead used their parents' funds. The sons could have paid for the renovations of a home which they legally owned, but they did not. They used their parents' funds. The sons could have paid the capital gains tax associated with the sale of their parents farm given that they were gifted the proceeds, but they did not. BKM could have received a commission in respect of the sale of the farm significantly less than a commercial rate, but he did not. The sons could have dissuaded their father from making large unaccounted for cash withdrawals, but they did not. They could have refused the gifting of their parents' home in circumstances where they knew that their mother lacked capacity and where there were questions in respect of their father's capacity, but they did not. The sons could have fully informed Mr Linfoot of the Tribunal proceedings prior to asking him to prepare the formal documentation required for their parents to gift their home, yet they concealed that information. BKM could have transferred back to his parents the full amount of $244,000 which he took from them, but he has not. Taking any of those actions unquestionably would have been in GYM's best interests and ought to have been taken, yet they were not.
It is therefore without question that GYM's sons cannot be considered as administrators. Indeed, it will be necessary for the administrator to investigate and attempt to recover some of the assets of GYM in circumstances where she did not have the ability to understand and consent. Such investigations and recovery action could clearly not be undertaken by those who have gained from those very transactions. Therefore any appointment must be independent, being the Public Trustee.
Although there were submissions made to the effect that there was no need for the appointment of an administrator because GYM's funds had so severely diminished, the Tribunal rejects that submission entirely. There is clearly a need for the appointment of a plenary administrator. There are very significant complex investigations and legal actions which need to be undertaken in order to attempt to recover GYM's estate. To simply sit back and do nothing in the context of the facts as presented would not be in her best interests. This is a clear example where directions need to be made to the Public Trustee to investigate a number of transactions that have occurred during the early to midpart of 2017 in order to consider taking proceedings to recover and set aside those transactions. The need therefore in the view of the Tribunal is clear and cannot be met in any less restrictive way. Nor can a limited order be made in the circumstances of the present case.
Review period
GYM has a progressive mental disability. It would therefore not be unusual for a review to take place in five years' time given that her condition will deteriorate over time and presumably her needs increase. However, the Tribunal's view is that it ought to reconvene and review matters particularly once any investigations and legal actions have concluded. However, the Tribunal does not anticipate that that will be achieved within a short period of time and therefore is of the view, in respect of the administration order, that a three year review period is appropriate in all of the circumstances.
In relation to the limited guardianship order, the Tribunals' view is that an earlier review period is appropriate. Over time it may be that the need for an independent appointed guardian diminishes and less restrictive options become available. It is therefore not appropriate to leave the order in place for an extensive period and therefore the Tribunal finds that a 12 month review period is appropriate.
Capacity to vote
When the Tribunal appoints either a guardian and/or administrator for a person, it must consider pursuant to s 111 of the GA Act whether the person is capable of making judgments for the purpose of complying with the Electoral Act 1907 (WA). We note that the medical evidence supports a finding that GYM lacks the requisite capability and therefore an appropriate declaration ought to be made (page 41 of Exhibit GM1).
Orders
The Tribunal therefore makes the following orders:
GAA 1033 of 2017
The Tribunal declares that GYM:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)is in need of an administrator of her estate.
and the Tribunal orders that:
1.The order made on 9 October 2017 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is authorised to exercise the functions of a plenary administrator with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.Pursuant to s 71(4) of the Guardianship and Administration Act 1990 (WA) the Public Trustee is directed as follows:
(a)to take immediate action to:
(i)lodge a caveat in respect of the residential property at Mullaloo in the State of Western Australia; and
(ii)consider and as necessary take action to obtain an injunction in respect of each of BKM, CM and GM to restrain them from dealing with funds associated with the sale of a farming property at Wyening in the amount of $1,615,853.
(b)investigate and if appropriate take action to recover in respect of the following transactions:
(i)the transfer of the amount of $1,606,523 from the represented person's joint bank account which has been divided into three separate bank accounts belonging to BKM, CM and GM;
(ii)the transfer of the residential property of the represented person at Mullaloo in the State of Western Australia to her three sons as tenants in common;
(iii)the transfer of an amount of $244,314 of which the amount of $44,314 has not been returned to the represented person such transfer having been undertaken by BKM on 13 April 2017;
(iv)the payment of legal fees made to solicitors representing the represented person's sons BKM and GM;
(v)legal fees paid to Mr Ashley Wilson during a period that he was representing both the represented person and her husband and was in an apparent position of conflict;
(vi)legal fees paid to all other legal solicitors and counsel in the proceedings in circumstances where the represented person lacked capability to make reasonable judgments in respect of matters relating to all of her estate, such position being uncontested; and
(vii)all other questionable transactions as the Public Trustee sees fit.
(c)investigate the circumstances in which the represented person was deemed to be capable of executing a will on 15 May 2017 and take any necessary appropriate action; and
(d)consider at the conclusion of the investigations referred to in paragraph (b) above whether the circumstances of the relevant transactions ought to be referred to the police for further investigation and possible prosecution and to make any such referral if seen as appropriate.
4.The administration order is to be reviewed by 20 October 2020.
GAA 1869 of 2017
The Tribunal declares that GYM:
(a)is incapable of looking after her own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to her person;
(c)is in need of oversight, care or control in the interest of her own health and safety;
(d)is in need of a guardian; and
(e)is incapable of making judgments for the purpose of complying with the provisions of the Electoral Act 1907 (WA) relating to compulsory voting,
and the Tribunal orders that:
The guardianship order dated 21 April 2017 is amended so that it now reads:
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)to determine what contact, if any, the represented person should have with others and the extent of that contact; and
(b)to determine the services to which the represented person should have access.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.The guardianship order is to be reviewed by 20 October 2018.
I certify that this and the preceding [86] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS C WALLACE, SENIOR MEMBER
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