IT and DN AND MN - [2018] WASAT 117

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   IT and DN AND MN [2018] WASAT 117
MEMBER:   MR J MANSVELD (SENIOR MEMBER)
HEARD:   5 JULY 2018
DELIVERED          :   2 NOVEMBER 2018
FILE NO/S:   GAA 3466 of 2017
GAA 3468 of 2017

IT
Applicant

AND

DN AND MN
Respondents

Catchwords:

Enduring power of attorney Tribunal has general supervisory jurisdiction in respect to enduring powers of attorney Jurisdiction does not stop on the death of a donor Proper interest - Whether attorneys should file records and accounts In connection with the power

Legislation:

Guardianship and Administration Act 1990 (WA), s 107, s 109(1)(a), s 109(1)(b)

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondents	:	Mr Michael Dawson

Solicitors:

Applicant	:	N/A
Respondents	:	Dawson Davies

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

EW [2010] WASAT 91
KS [2018] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

LN is deceased. She was 89 years of age when she died on 21 January 2016.
In 2007, LN had made an enduring power of attorney (EPA) appointing her daughter MN and her son, DN as joint and several attorneys. The EPA was able to be used upon execution by LN and acceptance by the attorneys which occurred on 20 October 2007.
When LN died she left a will and her executor was her solicitor.
Probate was granted on 13 April 2016.
In November 2017, IT (applicant), another daughter of LN, filed applications under s 109(1)(a) and s 109(1)(b) of the Guardianship and Administration Act 1990 (WA) (GA Act) relating to the EPA (applications).
The applications have had an extended procedural history in the Tribunal to allow for the parties to file statements of issues, facts and contentions and to deal with the applicant's requests for documents regarding some of LN's hospital admissions and her attendances at outpatient (memory clinic) appointments.
The hearing of the applications took place on 5 July 2018. The applicant was unrepresented and both MN and DN were represented by counsel.
The decision was reserved.

Relevant legislation

Section 109(1)(a) and s 109(1)(b) of the GA Act read as follows:
(1)A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order
(a)requiring the donee of an enduring power of attorney to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in connection with the power;
(b)requiring such records and accounts to be audited by an auditor appointed by the Tribunal and requiring a copy of the report of the auditor to be furnished to the Tribunal and the applicant for the order[.]
Section 107 of the GA Act sets out the statutory obligations of an attorney:
(1)The donee of an enduring power of attorney
(a)shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure;
(b)shall keep and preserve accurate records and accounts of all dealings and transactions made under the power;
(c)subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and
(d)shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal.
Penalty applicable to paragraph (b): $2 000.
(2)In relation to an enduring power of attorney recognised by the State Administrative Tribunal under section 104A(2), subsection (1)(a) and (b) only apply to the donor’s estate within Western Australia and subsection (1)(c) does not apply.

The applicant's case

The applicant states that her applications arose out of her concerns at the time around the granting of probate in respect to LN's will, the difficulties she had with the executor and her belief that the stated value of LN's estate at the time of her death was less than it should have been.
The applicant states that the principal asset of LN at the time of her death was bank funds. She says she was first advised by the executor that the bank funds totalled $40,180 which was later amended to $33,351.
The applicant refers to the time from the 1980s to substantiate her claim that LN's estate should have been of greater value than that determined upon her death.
The applicant states that in 1989 LN left the matrimonial home and received a sum of money from her spouse (the applicant's father) which the applicant believes to be $60,000. LN purchased another property for $80,000 (1989 property). The applicant loaned LN $55,000 to assist her with the purchase.
The applicant states the loan was repaid by LN in 1990.
The applicant states that in February 1994, LN sold the 1989 property for $140,000 and eventually moved back into the matrimonial home. The applicant says that her father told her LN never refunded him the monies paid to her when she first left the matrimonial home.
The applicant states that in May 1994 LN and DN purchased a property as tenants in common in equal shares (1994 property) for $110,000. The applicant assumes LN contributed 50% to the purchase price. This property was sold in August 1997 for $117,500.
The applicant calculates that by this time in 1997 LN would have accumulated at least $143,750 in funds. This figure is arrived at by adding the sale price of the 1989 property to LN's share of the sale price of the 1994 property after deducting the assumed contribution to this purchase.
The applicant also mentions that when her father died, LN gave her a small box containing some personal items that had belonged to her father which included a note of a purported loan to DN of $50,000. The applicant says DN has denied that a loan was made to him. She contends that the debt formed part of her late father's estate and would have passed to LN.
The applicant filed with the Tribunal copies of documents she obtained from Landgate concerning the property transactions she referred to as well as other documentary material.
In addition to the funds the applicant says LN would have accumulated from the property transactions she identified, she made a submission concerning LN's pension income.
The applicant states she has obtained information from Centrelink which has enabled her to calculate what LN would have received by way of pension income from 2007 (the year of her father's death) to the end of 2015. She states that by her calculation LN would have received $152,812 before a cost of living adjustment (CPI) and $157,404 after the CPI was taken into account.
For the purposes of her submission, the applicant assumes that LN would have expended 50% of the pension which would have meant that LN could have had at least $70,000 in funds at the time of her death from that source.
The applicant states that in the period from 2007 to 2015, she saw LN once or twice a year and she would occasionally contact her by telephone.
The applicant was unable to produce any evidence of LN's spending habits for those years other than to say that LN made several trips to Italy. She accepts that her assumption that LN expended only 50% of her pension income is an arbitrary figure but states that she remembers LN as being frugal.
As regards the capacity of LN to manage her own affairs, the applicant states that she noticed LN was tending to repeat things from when she visited in 2014.
The applicant filed two reports from the Sir Charles Gairdner Hospital (SCGH) memory clinic when LN attended the clinic on 22 August 2014 (August 2014 report) and 28 November 2014 (November 2014 report) as evidence that LN's cognition was affected at that time.
The August 2014 report states that LN's daughter (presumably MN) had noticed significant short-term memory decline over the previous 12 months. LN was forgetful of daytoday matters including the day and date. Her long-term memory was good. LN had left the stove on once and therefore was not allowed to do any cooking. She was okay to use simple electrical devices such a kettle or toaster without any safety concerns.
The report states that LN had 'probable Alzheimer's dementia'. That diagnosis was expanded by the consultant medical practitioner (consultant) in the body of the report as '… most likely early Alzheimer's dementia based on collateral history from her daughter and my clinical assessment'. The consultant noted that MN and DN were the attorneys under the EPA.
The November 2014 report states that LN's daughter reported a further decline in her short-term memory. The diagnosis continued as 'likely Alzheimer's dementia' and it was noted that LN had scored 17/30 on a Mini Mental State Examination. The Consultant again noted that MN and DN were LN's attorneys under the EPA and that MN was keen to arrange an enduring power of guardianship for LN. The consultant had explained to MN about a diagnosis of Alzheimer's dementia. It was noted that LN was managing quite well with support provided by MN and no extra help was required.
The applicant submitted a copy of occupational therapy notes from SCGH dated 13 April 2015 which records a telephone conversation between the occupational therapist and MN.
The occupational therapist reports that MN had noted decreasing memory for LN with some agitation when she was challenged about what she had forgotten. The occupational therapist was to send MN a set of guidelines for the carer of a person with dementia.
The applicant submitted a letter dated 21 March 2015 from the Aged Care Assessment Team (ACAT) assessor at SCGH to LN's general practitioner (GP). The letter includes the report of an assessment of LN conducted by the ACAT assessor on 16 February 2015.
Relevantly the ACAT report states:
•MN was providing LN with support for personal and domestic tasks. MN was living with LN and had done so for about three years.
•LN attended a day centre on Monday which included the day centre outings; she attended the library on Thursday; on Friday she played cards at a retirement club and went out on the club's monthly bus trips and on Sunday family and friends would visit.
•MN would monitor LN's daily medications which were stored in a Dosette box.
•MN would attend to LN's instrumental activities of daily living and would complete the shopping. LN was given 90 minutes of domestic support each fortnight through the Home and Community Care Program.
•MN had noticed LN as having significant short-term memory decline in the previous 18 months. LN did not exhibit behavioural issues. LN was able to be left alone for a few hours in her favourite chair watching prerecorded television programs.
•Under the heading 'Management of Financial Affairs' it was noted that MN had 'EPOG' [enduring power of guardianship] and she and DN had joint 'EPOA' [enduring power of attorney].
•LN was still managing well with the extensive support she was receiving from MN. LN enjoyed her social activities which provided some respite for MN.
On the applications by the applicant the Tribunal had the Mount Hospital provide its records in respect to LN. The Mount Hospital is where LN was treated for her cardiac problems.
In a letter from a cardiologist to LN's GP dated 1 December 2014, Alzheimer's dementia is mentioned in the list of diagnoses.
In a Medical Discharge Summary of Mount Hospital dated 13 December 2014, under the heading 'Additional Conditions existing at the time of the patients' admission and influenced the status, care or treatment', one of the conditions listed was 'mild Alzheimer's'.
On an admission to Mount Hospital in August 2015, an initial assessment by an occupational therapist, notes that that LN had Alzheimer's disease and a Mini Mental State Examination score of 17/30. The nursing notes for 27 August and 28 August 2015 state that LN was pleasantly confused even though alert and oriented.
On cross-examination the applicant accepted that aside from the medical and allied health reports before the Tribunal, she had no direct knowledge at the time as to whether LN was able to manage her own affairs or the level to which she was able to do so.
Despite this, the applicant's submission is that LN, at some point likely from 2014, was no longer capable of managing her financial affairs and that as a consequence MN and/or DN would have managed those for her.
The further submission is that LN should have had a larger estate upon her death than was accepted for probate purposes and as a consequence and on the basis that MN and DN were assisting LN, they did not act in her best interests.
For those reasons it is the applicant's submission that MN and DN should be required to produce the records for the transactions they undertook as LN's attorneys and that the records be audited.

The case of MN and DN

The position of MN and DN is that they did not carry out any dealings or transactions as attorneys under the EPA.
MN and DN submit that LN retained capacity to carry out her own affairs until her death. They say that she was never formally diagnosed as suffering from Alzheimer's disease or any other form of dementia. They say that aside from some minor short-term memory loss, LN maintained capacity until her final illness.
MN and DN refer to the August 2014 and November 2014 reports and submit that the mention of dementia is couched in terms of 'probable' and 'likely' and was therefore not certain.
MN states that she had noticed some short-term memory loss in LN in 2014 but was not overly concerned. She asked LN's GP to look into the matter subsequent to which LN was referred to the SCGH memory clinic.
MN states that the reference in the November 2014 report to the consultant explaining a diagnosis of dementia was because she had asked the consultant what would happen if a formal diagnosis of dementia was made for LN in the future.
The submission of MN and DN is that a person does not automatically become incapable upon a diagnosis of dementia. It might make the person less able to look after their own affairs but not necessarily unable to do so.
MN states that LN had a serious heart condition and had regular admissions to the Mount Hospital, up to four times a year. She says that LN consented to her own treatment and she was never asked to give consent on LN's behalf.
MN and DN state that LN worked as a volunteer for the St Vincent de Paul Society and carried out general retail work, operated the tills, undertook banking and other duties, read the daily newspaper without assistance and attended medical appointments herself and made medical decisions for herself. LN required some assistance with Centrelink documentation and forms would be completed on her instructions.
MN and DN state that LN was a member of a number of clubs and societies, played cards (canasta) with friends on a weekly basis and participated in organised social activities.
MN and DN state that on occasion they would drive LN to appointments; however she also took public transport, walked to church and was collected by bus to attend some of her clubs or other social engagements. LN did not otherwise require assistance in attending to her affairs.
MN and DN state that LN conducted all business affairs herself and attended at the bank in person to deposit or withdraw funds. She was in receipt of the age pension and the Italian pension at the time of death. LN held her accounts at the time of her death and all transactions relating to the accounts were carried out exclusively by her. At the time of death LN had funds in her various accounts which were disbursed largely on funeral expenses and the legal costs of probate and the administration of her estate.
DN states that LN was living in a property owned by him. LN was not required to pay rent or property costs.
MN and DN state that LN lived modestly, however her only income was the pension income. They submit that she presumably expended her funds in the relevant time both on overseas holidays and other expenses including all her social activities.
MN states that upon LN's death she had access to LN's bank passbook which had about 12 months of recorded transactions which she forwarded to the executor. She says she was not aware of any large transactions in that period.
MN states that she expected LN to have less funds in her bank at the time of her death. When LN's spouse was alive he controlled all the finances so LN never had any money of her own. After the death of the spouse LN had told MN that she was in the best time in her life because she now had her own money. LN used to socialise six days a week.
MN states that LN volunteered at St Vincent de Paul for 25 to 30 years and was volunteering once a week until the week she had a fall in November 2015, six weeks before she died (the applicant disputes that LN was still able to get about as MN describes because the applicant says LN was frail and restricted by her heart condition).
MN states that LN had a term deposit and would read the bank letter that was sent by the bank when the deposit matured. LN understood what the bank letter said and would decide herself what to do. She would sometimes take the letter to the bank.
MN and DN submit that the evidence of the applicant is largely irrelevant to the applications and takes into account transactions that were made by LN well before she executed the EPA in 2007.
As regards the estate of LN at the time of her death, MN and DN state that all her banking documentation was provided to the executor of her will who made the successful application for probate.
MN states that the only records that have been retained in respect to LN's financial affairs are the documents returned by LN's executor. They are bank passbooks and the last letters that LN received from her bank concerning the term deposit.
DN says that the passbooks were photocopied and were sent by the executor to LN's four children which includes the applicant.
MN and DN submit that the applications should be dismissed.

Discussion of the issues

I find that the applicant is a person with a proper interest in the matter before the Tribunal. She is a daughter of LN and a beneficiary of LN's estate. She has alleged that MN and DN acted in their capacity as attorneys under the EPA and in doing so did not act in the best interests of LN.
This finding is not challenged by MN and DN.
Parliament has given the Tribunal a general supervisory jurisdiction in respect of enduring powers of attorney (KS [2018] WASAT 29 at [26] (KS)).
The jurisdiction of the Tribunal under s 109(1)(a) and s 109(1)(b) of the GA Act does not stop on the death of the donor, in this case LN (KS at [20][37]).
The period for which the Tribunal can make an order, under s 109(1)(a) and s 109(1)(b) of the GA Act cannot be longer than the time from which the attorney began to operate the relevant enduring power of attorney to the death of the donor (KS at [22] and [23]).
I adopt the reasoning in KS.
I accept on the medical and allied health material before the Tribunal, that from at least August 2014, LN had an emerging dementia. This appeared to be mainly characterised by significant short-term memory loss as identified by MN in the August 2014 report and November 2014 report.
In her oral evidence MN appeared to minimise the extent of that shortterm memory loss.
The ACAT report from February 2015 seems to indicate that LN relied considerably on MN with whom she was living. I note in particular the comment in the report that LN was able to be left alone for a few hours watching pre-recorded TV programs.
At the same time the ACAT report describes the varied social activities that LN was engaged in at that time.
Tellingly in my view is the statement under the heading 'Management of Financial Affairs' in the ACAT report that MN and DN were attorneys under the EPA.

The Mount Hospital nursing notes from 27 and 28 August 2015 state that although alert and oriented, LN was pleasantly confused.
It seems inconceivable to me that MN and DN were not assisting LN in some way with her financial affairs. I do not find as credible their position that they had nothing to do with LN's finances (other than Centrelink forms) given the other assistance they were giving her and in light of the medical and allied health material before the Tribunal.
When an enduring power of attorney is in place in the unrestricted way in which LN executed the EPA, there is some force in the notion that when a person who is also attorney assists the donor with his or her financial affairs with third parties then that assistance falls under the authority of the enduring power of attorney even though that may not have been made explicit at the time (EW [2010] WASAT 91 at [67][86] (EW)).
However I am unable to determine on the evidence the extent of the assistance given by MN and DN and therefore what would have concerned their role as attorneys under the EPA such that whatever they did was 'in connection with the power' under the EPA (s 109(1)(a) of the GA Act). I accept the submission that a diagnosis of dementia of itself is not determinative of the degree of loss of cognition and functioning which to some extent would depend on an individual's response to the illness.
Despite this I have concerns at the apparent difference between the positive standpoint of MN and DN on LN's ongoing functioning from 2014 until her death in January 2016 and the assessments in the medical and allied health material. In my view they are not congruent.
The main problem with the applicant's position however, is that she had little direct contact with LN in the relevant period and has provided no probative evidence to indicate LN's spending habits.
As a consequence the applicant's case rests on a speculative foundation on what she supposes LN accumulated through property transactions from the 1980s and 1990s and a guess as to what of her pension she would have saved from about the time LN's spouse died and the EPA was executed.
Despite the concerns I have with the decline in LN's functioning following the dementia diagnosis and how that might have impacted on her ability manage her financial affairs, the applicant has not convinced me that the applications have revealed 'something which requires an enquiry' (EW at [101]).
I will therefore dismiss the applications.

Order

1.The applications made under s 109(1)(a) and s 109(1)(b) of the Guardianship and Administration Act 1990 (WA) are dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (SENIOR MEMBER)
2 NOVEMBER 2018