JCM
[2018] WASAT 126
•20 NOVEMBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JCM [2018] WASAT 126
MEMBER: MS F CHILD (MEMBER)
HEARD: 22 AUGUST 2018
DELIVERED : 20 NOVEMBER 2018
FILE NO/S: GAA 2013 of 2018
GAA 2347 of 2018
JCM
Represented Person
Catchwords:
Guardianship and Administration - Competing applications for the appointment of guardian - Applications for intervention in an enduring power of guardianship and enduring power of attorney - Dementia diagnosis - Conflict between spouse and adult children of represented person - Enduring power of guardianship invalid as represented person not of full legal capacity at time of execution - Need for guardian - No need for appointment of administrator as no evidence existing enduring power of attorney not operating to meet needs - Joint appointments of spouse and Public Advocate as guardians
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43(1), s44(1)(b), s 44(5), s 51(2)(g), s 64(1), s 71(2), s 104, s 107, s 109, s 109(1)(a), s109(1)(c), s 110B, s 110J, s 110K, s 110N, s 110ZD, Pt 9, Pt 9A, Sch 2, Pt B, cl(e), cl(f)
Result:
Guardians appointed
Applications dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | Mr D Kirchner |
Solicitors:
| Represented Person | : | Templar Legal |
Case(s) referred to in decision(s):
EW [2010] WASAT 91
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These are the reasons for the decisions made in respect of applications made under the Guardianship and Administration Act 1990 (WA) (the GA Act) for JCM (the represented person) announced on 22 August 2018 following a hearing on that day.
Background
The represented person is a 94-year-old man with multiple health problems. At the time of the hearing he was a patient in hospital and attended part of the hearing by telephone.
The represented person's first wife died in 1984. He has four children of that marriage; C, J, P and D (the children). The represented person married L in 2001 and they hold two properties in their joint names; a holiday house in the country and their home in the metropolitan area.
The represented person executed an enduring power of attorney (EPA) in 2015 appointing L as his attorney.
Up until May 2018 the represented person lived with and was cared for by L in their home. On 13 May 2018 L suffered a broken hip and was hospitalised. L arranged for her daughter DM to care for the represented person. His children say that the represented person did not want to remain with DM and they took him to D's home.
On 22 May 2018 the children arranged for a referral of the represented person to a geriatrician, Dr M, for assessment of his capacity.
When L was discharged from hospital on 26 May 2018 she says she asked that the represented person be returned to her care but this did not occur.
L says that repeated requests for the represented person to be returned to her were refused and contact between her and the represented person was limited by the children. The children are reported to have required that an independent carer be present when the represented person visited his home to have contact with L. Arrangements made by L for paid and unpaid carers to be in attendance were not always acceptable to the children.
The children say they refused to return the represented person to his home and L's care because they say that L and DM had been verbally abusive to them and to the represented person and that L cannot care for the represented person. They say that L is elderly and has health problems of her own, does not accept the represented person's health problems, that the represented person is a falls risk and L does not provide his medications as prescribed.
While he was in the care of the children an enduring power of guardianship (EPG) was executed by the represented person on 14 June 2018 appointing his children, J and C as the enduring guardians.
The represented person was admitted to hospital in July 2018 and discharged to the care of C at the direction of the enduring guardians. It appears that L was not involved in the discharge planning.
Up to the hearing on 22 August 2018, the represented person had had three admissions to hospital between May and August 2018. As noted on the day of the hearing, he was again in hospital.
Applications before the Tribunal
Applications were filed by L on 20 June 2018 seeking her appointment as guardian of the represented person and on 19 July 2018 seeking the revocation of the EPG dated 14 June 2018.
A submission was received on 17 August 2018 from the children seeking the following orders:
i)that C and J be appointed joint guardians of the represented person;
ii)that L have access to the represented person only with supervision;
iii)that L visit the [holiday] house at times mutually agreed to by C, J, the represented person and L;
iv)that L's EPA for the represented person be cancelled;
v)that a recommendation be made to the Office of the Public Advocate to investigate whether L has abused any of her powers of attorney in relation to the represented person and that L provide the Office of the Public Advocate (Public Advocate) with all accounts from 28 January 2015 to date, pursuant to her EPA;
vi)that C and D be appointed joint administrators and a plenary order be made in this regard;
vii)that the land titles of the residence and the holiday home properties of the represented person and L be changed from joint tenants to tenants in common on an urgent basis; C, D, J and P will prepare all necessary paperwork and pay all costs associated with these changes to the titles;
viii)that L give C, D, J and or P copies of the represented person's will and any mutual agreement/mutual will made in the office of their lawyer on 28th January 2015; and
ix)that the represented person's car, tools, framed pictures, ornaments, documents, papers, files and all personal belongings be available for collection by C, D, J and P within 14 days of the making of orders.
The children's submission was treated as an application by them pursuant to s 40 of the GA Act for the appointment of a guardian of the represented person and an administrator of his estate and an application pursuant to s 109(1)(a) of the GA Act for the filing of records by the donee of an EPA.
Legislation
In all proceedings brought under the GA Act the Tribunal must observe the principles set out in s 4 of the GA Act:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person’s previous actions.
To appoint a guardian for a person the Tribunal must be satisfied that the proposed represented person is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person or is in need of oversight care or control in the interest of his own health and safety or for the protection of others and is in need of a guardian (s 43(1) of the GA Act).
To appoint an administrator of an estate the Tribunal must first be satisfied that the person for whom the order is sought is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all or any part of his estate and is in need of an administrator of his estate (s 64(1) of the GA Act).
A mental disability is defined in s 3 of the GA Act to include dementia.
If the Tribunal decides that orders appointing a guardian and administrator should be made it must consider who is suitable for appointment the terms of any orders made.
Part 9 of the GA Act deals with the creation of an EPA (s 104 of the GA Act) and the obligations on attorneys appointed under an EPA (s 107 of the GA Act) and the jurisdiction of the Tribunal to intervene in or make other orders in respect of the estate of the donor of an EPA (s 109 of the GA Act).
Section 109(1)(a) of the GA Act provides that a person with a proper interest may bring an application to the Tribunal for the filing of records of all accounts kept by the donee of dealings and transactions made in connection with the power.
Part 9A of the GA Act deals with the creation and operation of EPGs and the jurisdiction of the Tribunal in respect of EPGs created under this Act.
Section 110B of the GA Act provides that a person who has reached the age of 18 years of age and has full legal capacity may make an EPG appointing a person as an enduring guardian or two or more persons as joint enduring guardians.
Pursuant to s 110J of the GA Act a person with a proper interest in the matter may apply to the Tribunal for a decision under this division.
Section 110N of the GA Act provides for the Tribunal to make an order revoking an EPG or varying the terms of an EPG.
Section 110K provides for a declaration of validity or invalidity of an EPG.
What the Tribunal must decide
To determine the applications before it the Tribunal must determine the following:
•Is the presumption of capacity of the represented person as set out in s 4 of the GA Act displaced by the evidence and is the represented person a person for whom an administration order and or a guardianship order may be made.
•Is the represented person in need of a guardian and in need of an administrator of his estate or is there a less restrictive alternative to the making of these orders. In particular, do the EPA dated 28 January 2015 and the EPG dated 14 June 2018 provide less restrictive means by which the needs of the represented person may be met.
•What are the wishes of the represented person.
•If administration and guardianship orders are needed who is suitable for appointment in these roles.
•What functions should be included in any orders made and when should the orders be reviewed.
•In respect of the applications pursuant to s 110N and s 109(1)(c) of the GA Act: Does the applicant have a proper interest and should the Tribunal exercise the discretion to make the orders sought.
Evidence and material before the Tribunal
The Tribunal received the applications, medical and other reports, a number of submissions filed by the parties, email and text message correspondence between the parties and a report from an investigator from the Public Advocate following an investigation referred by the Tribunal.
The Tribunal also heard oral evidence from the represented person, the parties, from the hospital social worker and Dr M by telephone and submissions from the Public Advocate and counsel for the applicants.
The following material is before the Tribunal regarding the represented person's capacity:
1)A letter from Dr A, a consultant geriatrician dated 23 August 2016 which states the represented person has a diagnoses of early dementia of probable vascular or mixed disease, atrial fibrillation, pacemaker inserted 2013, aortic valve replacement, congestive cardiac failure, and chronic renal impairment. The report notes that the represented person is cared for at home by his wife and has limited insight into his cognitive decline and health issues and that L had noticed decline in his cognition in the last two years. It goes on to say 'On the MMSE, he scored 24/30 losing most points in orientation. On the more sensitive MOCA, he scored 21/30 losing five points in delayed recall and three points in orientation'.
The report notes the represented person has 'extensive cardiac issues and does not seem to be on adequate treatment for heart failure or stroke prevention'. The report states '[L] is adamant that [list of drugs including warfarin] have caused depression in the past and his mood improved when he stopped these tablets'.
2)An Aged Care Assessment dated 12 December 2016 noting a medical history dementia of probable vascular or mixed disease (2016).
3)A report from a physiotherapist dated 16 July 2018 noting that L's rehabilitation had been completed, the home had been assessed by an occupational therapist and that she was physically improved and would be capable of caring for someone in a supervisory role not requiring hands-on assistance with transfers and had demonstrated an ability to manage domestic duties independently within the home.
4)Rowland Universal Dementia Assessment Scale of the represented person (RUDAS) in which the represented person had scored 15/30 on 8 July 2018.
5)A letter from a doctor at a hospital to which the represented person had been admitted dated 10 July 2018 stating:
After discussion between the medical staff, allied health staff and the nominated guardians for [the represented person], it is the team's opinion that it would not be safe for [the represented person] to be cared for by his wife [L] at this current point in time given his significant impulsivity, risk of falls and mobility issues. We understand that while [L] has carers that attend her home twice-a-week, this level of supervision and care would not be sufficient to provide a safe environment for [the represented person] at his current level of function. It is the wish of the nominated guardians that he be cared for at one of their residences who can provide an appropriate degree of support.
6)A MMSE (mini mental state examination) dated 5 September 2016 with a score of 24/30.
7)A discharge summary from a hospital 6 July to 10 July 2018 noting the admission for acute exacerbation of chronic congestive heart failure.
8)A brief report dated 18 July 2018 from Dr E (general practitioner) stating that an MMSE conducted was 14/30 indicating moderate cognitive impairment.
9)A letter from Dr W to Dr M dated 22 May 2018 stating:
Thank you for seeing [the represented person], age 94 yrs, for opinion regarding his memory and capacity. He has a complex list of health problems listed below including dementia.
…
I do not myself feel that I am unable to sign a form saying that he has capacity to make this decision and would appreciate your review of the situation. I have met him several times over the past year, but beyond the past 2 years he has not been well known to our surgery. I have enclosed a copy of a Geriatrician letter following a review in 2016 to give you some further background information.
10)A report of Dr W dated 20 July 2018 noting an unclear diagnosis and referring to the assessment by Dr M. Dr W states he is unsure of the represented person's capacity.
11)A report from Dr E dated 4 August 2018 reporting probable vascular dementia causing cognitive impairment over the past two years. Dr E reports that he is unsure as to capacity of the represented person in respect of financial, legal and treatment decisions but his opinion is that the represented person is incapable of decision making about accommodation (depended on his wife and his children) and is incapable of executing an EPA and an EPG.
12)A report from Dr M dated 30 July 2018 indicating the represented person was brought in by his daughters, that he has an unclear diagnosis and that Dr M was unsure of his capacity.
13)Dr M gave oral evidence at the hearing by telephone but did not have the records regarding the represented person with him. Dr M says that he had seen the represented person but had not assessed his capacity (ts 25, 22 August 2018).
14)The material before the Tribunal regarding cognitive assessments was put to him and Dr M noted that the represented person's scores have varied from time to time (ts 22, 22 August 2018).
15)Dr M agreed that if Dr A had been correct in her diagnosis that the condition could have progressed.
16)Dr M said he had not received a detailed medical history and he did not have any details about heart failure or renal impairment but this would impact on the represented person's cognition particularly if it was in an advanced state (ts 23, 22 August 2018).
17)Dr M said that his clinical diagnosis as he recalled it was that the represented person had mild cognitive impairment and not an overt dementia (ts 25, 22 August 2018).
L, the children and DM filed detailed submissions with the Tribunal regarding these proceedings.
The submissions filed by the children support the allegation that contact with the represented person and L was limited by them and that he was not returned to her care at her requests.
The submissions confirm that contact was restricted to 'when a qualified independent carer [was] present'. The Public Advocate asserts that support to care for the represented person from family or friends of L at times of contact were apparently not accepted by the children.
DM says that health professionals were told by the children that L had cognitive impairment but that this is not true.
In the material filed by the children there appears to be longstanding conflict between them and L regarding her religious beliefs , their access to the holiday home and what they describe as her behaviour.
The children describe a 'long history of hostility and inappropriate, unpredictable behaviour [to them by L] that has been more pronounced in the last 3 years' (Hearing Book page 225).
The children say that they have spoken to the represented person many times over the past 17 years about L's behaviour (Hearing Book page 171).
The children say that access by the children to the holiday house has been unfairly limited by L and has been a source of conflict between them and L for some years (Hearing Book page 224).
The children say that since the represented person lost his driver's licence in 2014 that they have had more limited contact with him as he could not drive himself and that L made it difficult for them to see him. D says she saw the represented person only three times per year. C says she saw the represented person weekly between 2014 and 2018.
The children assert that L does not share medical information with them and say that they did not know of the represented person's chronic kidney disease and dementia diagnosis (Hearing Book page 222). In spite of this there are references in their oral evidence and in written submissions to his worsening dementia and to confusion and memory problems as far back as 2015 (in the context of the execution of a will by the represented person at that time) (ts 43, 22 August 2018).
The children say they are not told of hospital admissions of the represented person by L and express concern about whether the represented person and L follow medical advice for management of his conditions. They assert that L has changed the represented person's prescribed medication regime without medical advice and prefers her own beliefs about healing the represented person including prayers, vitamins and herbs. They allege that L does not appreciate the represented person's frailty and medical conditions and give examples of her feeding the represented person inappropriately in hospital.
It is submitted for L that she has been managing the represented person's specialist appointments and providing the necessary care for him without support from the children.
The Aged Care Assessment in 2016 refers to her managing without services at that time. The children say they have seen less of the represented person since 2014 for a number of reasons. From their evidence it can be inferred that the children have not been closely involved in the represented person's care at least in the last few years until they became involved after L's hospitalisation.
In her submission and in her oral evidence D says that the represented person was told that the purpose of the EPG was to provide for his care when L was unable to care for him.
D said 'We had discussed with dad what an EPG was, that as a temporary measure while [ L] was unable to look after him, he did did he want us to help him make decisions about his medical, personal and lifestyle issues' (ts 46, 22 August 2018).
In respect of the application for their appointment as administrators of his estate the children say this would make sense that if the represented person came into their care that they manage his finances.
In respect of the orders sought to revoke the EPA made by the represented person in 2015 and for the filing by L of records and transactions made in connection with the EPA, the children say that D had investigated and had learnt that L had taken the represented person to a lawyer in 2015 and that a will and a EPA had been executed by him at that time. The children say they had become concerned about this as they had understood that the represented person had made a will in 2009 and they had not been told of the 2015 documents (ts 39, 22 August 2018).
When they had asked for copies of the wills pursuant to their authority as enduring guardians the solicitors had refused.
In the hearing the children say they are unaware of the financial circumstances of the represented person other than he has superannuation but they raise concerns about appropriate expenditure on the needs of the represented person giving examples of a broken medication tray used by L for the represented person's medications and his presentation in what they considered to be old clothing and inadequate shoes. They say that these issues had not been raised before with the represented person or L, apart from when the represented person attended a family wedding and his clothing was considered by them to be inappropriate for the occasion (ts 50, 22 August 2018).
No allegations are made of improper financial management on the part of L.
L denies changing the represented person's medications without medical advice and says that the represented person is under a cardiologist at Royal Perth Hospital and that the cardiologist, Dr K, had prescribed an appropriate blood thinner for the represented person (ts 52, 22 August 2018).
The children challenge this and say that when they took the represented person for a check-up of his pacemaker and an appointment with a cardiologist that the particular doctor had not been at the hospital for some time.
Wishes of the represented person
The represented person expressed his wish to the Public Advocate when interviewed and in the hearing that he wished to be cared for by L.
The Public Advocate reports that the represented person wishes to be at home with his wife.
Submissions
Counsel for L submits that the EPG made by the represented person is invalid as the medical evidence points to his incapacity to execute such a document and that represented person on his own view signs anything put in front of him. This reiterates comments made by the represented person in his own evidence in the hearing (ts 18, 22 August 2018).
Further, that even if the represented person was capable at the time of execution, that the EPG is not operating in the represented person's best interests as his wish to return to his wife's care is not respected and as such the EPG should be revoked.
It is submitted for L that the represented person had been removed from his familiar accommodation, routine activities and cared for by a succession of different persons and in different homes since May 2018 and that L has not had the contact that she has wanted with him. The represented person had been hospitalised on three occasions in that period and his health had deteriorated and this had been during the time that he had been out of L's care.
Counsel for L submits that L should be appointed guardian for the represented person but it is conceded that there may be role for the Public Advocate in respect of the management of contact with the represented person.
It is submitted that there is no evidence to support the revocation of the EPA and the orders sought for the filing of records by the attorney.
In respect of the orders sought by the children to vary the property interests and to obtain copies of the wills of the represented person and L it is submitted for L that the Tribunal lacks jurisdiction to make the orders sought.
The Public Advocate says that in terms of the arrangements required by the children for supervision of her contact with the represented person by qualified carers when the represented person was with L (when the children were not all qualified carers) had resulted in inequity in the expectations of care for the represented person and that there was a need for a guardian to have a contact function to ensure access for all members of the family.
The Public Advocate submits that an independent guardian for treatment accommodation services should be appointed because of the level of hostility between the parties and the need to resolve concerns about medication compliance of the represented person. It is submitted that an independent guardian should be appointed for 12 months so that there would be an opportunity for some reconciliation between the parties.
In respect of the EPA executed by the represented person in 2015, the Public Advocate submits it is common practice that EPA's are executed by elderly couples and the Public Advocate submits there was no ill intent in this.
Findings
The Tribunal accepts the opinion of Dr A in the report of 2016 which states that the represented person has dementia. Although Dr M's assessment of the represented person is more recent he was not able to give an opinion as he said he did not have a medical history and had not assessed the represented person's capacity.
The MMSE, MoCA and RUDAS assessments before the Tribunal have differing scores but all the results indicate cognitive impairment and this was conceded by Dr M in his evidence.
All parties agree that by the time of the hearing that the represented person had deteriorated and could not make decisions for himself. Based on all of the material before it the Tribunal finds that the presumption of capacity is displaced and the represented person is a person for whom orders may be made.
EPG
In respect of the execution of the EPG the Tribunal finds that the represented person was not of full legal capacity at the time of its execution as required by s 110B of the GA Act to create an EPG. At the time of the execution of the EPG the represented person had a dementia diagnosis made by a geriatrician. Given the cognitive assessments which all indicate cognitive impairment it is more likely than not that the represented person did not have full legal capacity when the EPG was made.
It is also the case that the EPG executed was not in fact a 'temporary measure' as it was described to the represented person by the children. The represented person says he would sign a form if it were put in front of him. The combination of the inaccurate description of the legal effect of the EPG and the strong likelihood that the represented person signed it without appreciating its effect, supports the finding of invalidity.
Need for a guardian
As the Public Advocate submits, the represented person has a very complex medical history and significant health problems. These include congestive heart failure and renal failure and it is likely that his physical functioning has declined in the last few years.
The children argue that L has not provided appropriate care for the represented person over some years but there is a lack of direct medical evidence about the represented person's care needs and whether these have not been met to support this serious allegation.
The children are in conflict with L over matters which do not relate to the represented person's care and much of their criticism of her alleged conduct even if true is not relevant to decisions of the Tribunal.
The only independent evidence of under treatment of the represented person's health condition is in the letter from the geriatrician in 2016. No uptodate medical evidence or other independent evidence is provided to establish the allegations.
It is noted that the represented person is in hospital and it is likely that there will be or has been a review of his complex health conditions and medications as frequently occurs when elderly patients are admitted to tertiary hospitals.
The Tribunal finds that that the represented person is in need of a guardian.
There is conflict between his spouse and his children about where he should live, about his medical care and the contact he has with others.
The Tribunal is not satisfied that less restrictive alternatives could meet his needs; the represented person cannot now give an EPG as he is not of full capacity.
In the past, s 110ZD of the GA Act might have provided a less restrictive alternative to a guardianship order for treatment decisions for the represented person since L, as his spouse and his nearest relative under the GA Act, could make decisions on the represented person's behalf. However, as there is conflict in the evidence about his treatment and his care and animosity between his children and L has arisen about these matters it is now in the represented person's interests that health professionals have some certainty about who has authority to make these decisions for him.
The children express strong concerns about the represented person's treatment and care, justified or not, and L was effectively excluded from information about the represented person and input into decisionmaking for him when the children exercised authority under the EPG. It is not in the represented person's best interests that this position continue.
The Tribunal finds that C and J are not suitable to be appointed as guardians or as administrators of the represented person's estate.
The Tribunal makes this determination as it finds that they have not acted in his best interests to maintain the represented person's supportive relationships as required under the GA Act when they unreasonably limited the represented person's contact with his spouse (s 51(2)(g) of the GA Act). They are also potentially in conflict with his interests in their proposals to vary his property interests in an effort to secure what they understand to be their potential interest in his future deceased estate (s 44(1)(b of the GA Act).
Except where the Public Advocate is appointed jointly the Tribunal may not appoint the Public Advocate as guardian unless satisfied there is no one else suitable or willing to be appointed.
There is no independent or other persuasive evidence before the Tribunal to support a finding that L is not suitable to be the guardian of the represented person which would be required if the Public Advocate is to be appointed as sole guardian and displace L from the role she has been playing as decisionmaker as the spouse of the represented person (s 44(5) of the GA Act).
As joint guardians must be unanimous in the performance of their functions, the Tribunal finds that it is in the best interests of the represented person that L and the Public Advocate be appointed joint limited guardians to make treatment, accommodation and services decisions for the represented person.
The joint appointment will provide support to L to navigate and access the aged care and health care systems to assist her to respond to the represented person's deteriorating health and potentially changing needs through access to appropriate services and reasonable reassurance to the children that they will not be excluded from information about or contact with the represented person.
The children assert that there was historical conflict between them and L and the recent events are likely to have only exacerbated that conflict so that the Tribunal could not be satisfied that there would be communication between the parties if L was appointed as sole guardian.
The Tribunal finds that L is not suitable to be the guardian to determine contact the represented person has with others because of the high level of conflict between the parties.
The order appointing the joint guardians should be reviewed in 12 months' time to ascertain if the involvement of the Public Advocate as a joint guardian is still required.
EPA
Although there is reference to L noticing a two year history of cognitive decline in the letter of Dr A in 2016, there is no evidence to rebut the presumption that the represented person was capable at the time of the execution of the EPA in 2015.
The Tribunal accepts the submission made on behalf of L that the question raised by the children about the represented person's capacity to execute the will made in 2015(and by analogy the EPA) is apparently inconsistent with their assertions that he had capacity to execute the EPG in 2018.
In respect of the 2015 EPA, the represented person saw a solicitor and was presumably able to give instructions in the preparation of the EPA. The EPA is regularly executed and was registered at Landgate on 25 January 2015.
To make orders to revoke the EPA (pursuant to s 109(1)(c) or to order the attorney to file records pursuant to s 109(1)(a) of the GA Act) the Tribunal must first be satisfied the applicants have a proper interest in the matter. That interest must be a real interest not a frivolous vexatious or prurient interest (EW [2010] WASAT 91 (EW)).
The concerns expressed by the children that they were not told of the execution of the EPA (and the will) in 2015 by the represented person does not, without more, support such a finding.
The children's lack of current knowledge about the financial affairs of the represented person suggests that financial information has not been regularly shared with them. They acknowledged this in the hearing.
In the absence of any allegation of misconduct in the financial management of the represented person's affairs, a wish on the part of the applicants to be informed does not establish any grounds for the making of the order for the provision of private records of the represented person to persons with whom he had not shared his financial information even though they are his children.
Even if the children could establish a proper interest, the Tribunal has found that there must be something which justifies an enquiry or scrutiny of the operation of the EPA in question for the Tribunal to consider making such an order (EW).
The Tribunal accepts the submission for L that there is no basis for disturbing the EPA. There is no evidence advanced that the EPA made in 2015 is not operating to meet the needs of the represented person and in those circumstances is a less restrictive alternative to the making of an administration order and the Tribunal finds he is not in need of an administrator of his estate.
The orders sought by the children to vary the property interests of the represented person (and L) to preserve what they believe to be their inheritance from their late mother is a fundamental misunderstanding of the position of the represented person in respect of his estate on the death of his first wife. It is understood that he was a joint owner of property with his first wife and when she died he was entitled to deal with that property as he saw fit.
Although the Tribunal has some limited jurisdiction to make orders in respect of the nature and devolution of property in the represented person's estate (see s 72(1), cl (e) of Sch 2 Pt B of the GA Act) the orders sought to vary the property interests of the represented person and L are not within the jurisdiction of the Tribunal.
The request of the children for orders to control the use of the holiday property of the represented person (and L) through orders of the Tribunal misunderstands the purpose of this legislation and the jurisdiction of the Tribunal.
An order seeking delivery up of the will of the represented person although possible (see s 72(1), cl (f) of Sch 2 Pt B of the GA Act) is not appropriate for the purpose proposed.
Orders
For the reasons given the following orders are made:
1.L and The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia are appointed joint limited guardians of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person; and
(d)To determine the services to which the represented person should have access.
2.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 function:
(a)To determine what contact, if any, the represented person should have with others and the extent of that contact.
3.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.
4.The guardianship order is to be reviewed by 21 August 2019.
In relation to the enduring power of guardianship dated 14 June 2018 made by JCM ('the appointor') appointing C and J, the Tribunal declares and orders:
1.The enduring power of guardianship is invalid.
2.The enduring power of guardianship is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
20 NOVEMBER 2018
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