JHR - [2017] WASAT 154

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JHR [2017] WASAT 154

MEMBER: MS F CHILD (MEMBER)

HEARD: 10 AUGUST 2047

DELIVERED : 22 NOVEMBER 2017

PUBLISHED : 6 DECEMBER 2017

FILE NO/S: GAA 1846 of 2017
GAA 2005 of 2017

MATTER: JHR
Represented Person

Catchwords:

Applications made under Guardianship and Administration Act 1990 (WA) for the appointment of Public Trustee Advocate as administrator and guardian and for revocation of an enduring power of guardianship Allegations of exploitation and neglect Attorney applied for legal costs against applicant under s 87 of State Administrative Tribunal Act 2004 (WA) Departure from ordinary position of Tribunal that parties bear their own costs warranted as the applicant acted unreasonably No foundation for allegations of exploitation or financial misconduct

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 16, s 16(5), s 40, s 110N
State Administrative Tribunal Act 2004 (WA), s 87, s 87(2)

Result:

Costs order made

Summary of Tribunal's decision:

The Tribunal ordered that half the legal costs claimed by a party to proceedings brought under the Guardianship and Administration Act 1990 (WA) be paid by the applicant pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) as it was satisfied that the applicant had acted unreasonably in making unsubstantiated allegations that a man with a diagnosis of dementia was 'exploited' by his daughter who held his enduring power of attorney.

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

GA and EA and GS [2013] WASAT 175
In Chew and Director General of the Department of Education and Training [2006] WASAT 248
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd
MB and MM [2017] WASAT 51
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302
PHQ and LPQ [2015] WASAT 5

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 10 August 2017, the Tribunal heard applications filed on 26 June 2017 by AH, (the applicant), the sister of JHR (the represented person) pursuant to s 110N of the Guardianship and Administration Act (1990) WA (the GA Act) to revoke an enduring power of guardianship (EPG) made by the represented person and pursuant to s 40 of the GA Act for the appointment of the Public Advocate as his guardian and the Public Trustee as the administrator of his estate.
The applicant made allegations about the conduct of the represented person's affairs by his spouse and immediate family and particularly about the actions of his elder daughter AR (for the purposes of these reasons, the attorney) who had been appointed his sole enduring guardian under an EPG and sole attorney under an enduring power of attorney (EPA) executed by him.
The allegations made by the applicant include:
1.The represented person was not capable of executing the EPA and the EPG because he had been diagnosed with dementia;
2.The EPA had been 'obtained by stealth';
3.The represented person had been 'exploited' by the attorney;
4.The represented person was 'neglected', that there had been a 'general lack of care and supervision for an extended period of time' (and his immediate family) were 'not concerned for his welfare'. There are a number of allegations including that the represented person was allowed to wander unsupervised on the road;
5.The attorney was preventing the represented person seeing his mother and sister; and
6.The family were limiting access to the represented person to avoid scrutiny of his care.
The Tribunal made directions on 6 July 2017 prior to the hearing which included a referral to the Public Advocate for investigation of the applications and production of documents including for the filing by the attorney of copies of the EPA and EPG and for the provision by the attorney of a statement of assets and liabilities of the represented person.
The applicant received a copy of those orders and acknowledged in the hearing of the applications held on 10 August 2017 that she had been invited to inspect documents filed but said she had chosen not to do so as she 'did not want to attribute blame to anyone'.
The applications were originally listed for hearing on 25 August 2017 but brought forward as it was said that the represented person was suffering extreme stress due to the upcoming hearing and that his health was at risk as a result.
Following the hearing the Tribunal made orders which appointed the attorney as the plenary administrator of the estate of the represented person and as his limited guardian for decisions regarding where and with whom he is to live and for treatment and services.
The Public Advocate was appointed as limited guardian to determine the contact the represented person should have with others. The Tribunal revoked the EPG dated 8 December 2016.
In the brief oral reasons given at the conclusion of the hearing the Tribunal referred to s 4 of the GA Act and the presumption that the represented person is capable, in this case in respect of the execution of the EPA and EPG. The medical evidence, a letter from a geriatrician 5 January 2017 to the general practitioner while providing a diagnosis of probable Alzheimer's disease, did not in the judgment of the Tribunal rebut the presumption that the represented person was capable of executing the instruments. This finding was consistent with the written submissions of the applicant filed prior to the hearing, that the EPA and EPG would have been invalid due to incapacity if executed after the diagnosis by the geriatrician as they had been executed prior to that date.
The Tribunal did not accept the allegations that the represented person had been exploited by the attorney or that the instruments had been 'obtained by stealth' as alleged by the applicant.
The Tribunal gave the attorney an opportunity to seek an adjournment of the hearing to test the registration of the EPA with Landgate. An issue had arisen in respect of the completion of the formalities of the acceptance of EPA (and the EPG). It was arguable that the EPA might have been able to be rectified by the attorney and registered with Landgate thereby providing a vehicle by which the represented person's affairs could be managed. However, due to the uncertainty and the wish to bring the matters to a conclusion, the attorney sought her appointment as administrator of the estate.
In respect of the EPG, the Tribunal accepted the submission of the Public Advocate's representative that there were defects in the form of the acceptance of the EPG which meant that it did not meet the formality requirements under the GA Act to create an EPG.
The Tribunal was satisfied that the attorney was able to act as guardian in respect of accommodation services and treatment for the represented person as required and that having regard to the execution of the EPG that her appointment was consistent with his wishes.
The Tribunal identified the need for the appointment of the Public Advocate as guardian to manage the contact arrangements between the represented person and his mother and sister, the applicant, because of the deterioration of the relationship between the applicant and the immediate family of the represented person.
The administration order was set for review in five years. The guardianship orders were set for review in one year.

Costs application

The attorney was represented in the proceeding before the Tribunal and now seeks the payment of her legal costs.
The costs claimed are:

For taking instructions and preparing hearing	$1,952.50
Appearance at the hearing	$1,320.00
Preparation of costs submission	$660.00
Total claimed	$3,932.50

In submissions filed for the attorney on 16 August 2017, it is argued that a costs order should be made against the applicant because of the way that she conducted herself prior to and at the hearing. It is submitted that there was no evidence of financial mismanagement by the attorney and that the suspicions of the applicant in this regard were unfounded.
It is submitted that the applicant brought the applications for an improper purpose which it is argued, is demonstrated because the allegations made by the applicant about the care of the represented person by his family refer to conduct said to have occurred in 2016 (and sometimes earlier) and the applications were only brought in late June 2017 and early July 2017, after the relationship between the applicant and the attorney and the immediate family of the represented person had broken down.
In her responsive submission filed on 2 September 2017 the applicant says in summary that:
1.The Tribunal is a costs neutral jurisdiction;
2.It was the choice of the attorney to be legally represented;
3.The applicant acted in good faith in bringing the applications;
4.She did not intend 'to have or imply any malice, unreasonable, inappropriate, embarrassment, fraudulent, financial mismanagement, improper purposes or vindictiveness to anyone' but was 'simply telling her story as a layperson';
5.Since orders were made her applications were necessary and she should not pay costs for 'a successful application';
6.She is entitled to the presumption she acted with reasonable cause and in good faith; and
7.An award of costs against her would deter laypersons from making applications.
The applicant says her demeanour in the hearing is explained because she was surprised and disadvantaged in the hearing. The applicant says this is because the Public Advocate had not presented a report and she was compromised in her responses because she was distracted by the simultaneous translation being provided in the hearing for the spouse.
Further, the applicant rejects the submissions of the attorney that she was acting collaboratively with the family in 2016 to address the needs of the represented person and maintains that the applications were brought following the represented person being observed walking on the road. In her responsive submission she maintains her view that supervision of the represented person was insufficient, referring to the geriatrician's assessment that the family had limited insight into the represented person's decline.

Section 87 of the SAT Act

Section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides:
Costs of parties and others
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
Section 16 of the GA Act deals with costs.
Section 16(5) of the GA Act provides that nothing in the GA Act limits any other power of the Tribunal under the SAT Act.
It is acknowledged by both parties that the Tribunal is in general a cost neutral jurisdiction.
To depart from that starting position, the Tribunal must have a good reason.
The Tribunal has considered s 87(2) of the SAT Act in a range of decisions. In Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85] it said:
We take the view that in proceedings under the Act, the Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.
Although it is accepted as the parties submit, it is the choice of any person to be represented in proceedings before the Tribunal, given the conflict between the parties and the wideranging and serious nature of the allegations made by the applicant against the attorney it was reasonable for the attorney to seek legal representation.
The applicant says that she made her applications in good faith and did not intend to imply financial mismanagement or improper conduct but was simply telling her story as a layperson.
The applicant asserts the represented person lacked capacity to execute the EPA and EPG. She refers in her application and submissions to the assessment of the represented person by a geriatrician on 5 January 2007 as having Alzheimer's dementia. The applicant asserts that if the EPA and EPG were made after that time then the represented person was not capable of executing them.
It must be said that a diagnosis of Alzheimer's disease or of dementia does not in fact lead, as a matter of course, to a finding of incapacity. In this case, in the letter from the geriatrician to the referring general practitioner, the geriatrician notes that she had provided information about an EPA and EPG to the family. The applicant attended this assessment (the attorney did not) but at the hearing, the applicant said she does not recall this information being given.
It is possible to infer from the geriatrician providing this information to the family at the assessment, that she considered that the represented person might be able to execute such documents at that time.
In fact, the EPA and EPG had been executed on 8 December 2016, which the applicant would have learnt if she had inspected the documents filed by the attorney in compliance with orders made by the Tribunal.
In addition to the assertion that the represented person lacked capacity to execute the EPA and EPG, the applicant makes further allegations about what she believed to be irregular execution of the instrument regarding the role of the spouse as a witness and says in her submission that this raised further questions about 'scrutiny of the donor'. It is unclear whether this is a further reference to the donor's lack of capacity or is mistakenly referring to scrutiny of the attorney, the donee of the power.
In her submission (paragraph 31) when referring to the EPA and EPG, the applicant states:
I am concerned that these responsibilities might have been obtained by stealth. [AR] has given [JHR] some grief over time. Mum and I would be surprised if [JHR] had his full capacity that he would have donated his responsibilities to [AR].
The applicant goes on to state that any new will made by represented person should be subject to the same scrutiny. The Tribunal does not have jurisdiction in respect of wills.
It is accepted that, had the applicant inspected the documents filed by the attorney as she was invited to do, she would have learnt that there were independent witnesses to the EPA and that the spouse was not a witness.
When the applicant was asked in the hearing to say why she said the Public Trustee should be appointed as the administrator of the estate of the represented person, she responded that the attorney had taken the represented person's car for her own benefit.
When pressed about the need for an independent administrator to be appointed she said:
… because they put my back up to the wall concerning those emails.
There is some dispute between the parties about the actual words used by the applicant and their intended meaning so the Tribunal Member has listened to the recording of the hearing to confirm the statement of the applicant for the purpose of determining the costs application.
The emails to which the applicant refers are a series of emails between her and the daughters of the represented person regarding arrangements for visits between the represented person and his mother.
The email dated 15 May 2017 from the applicant to the daughters of the represented person states that: 'all communication, visits and contact' with the mother of the represented person (by all family members) be 'addressed through [the applicant] and in her presence'. This was said to be at the mother's request.
The exchange of emails which follows shows a deterioration in the relationship between the applicant and the immediate family of the represented person. In an email dated 26 May 2017, the attorney suggests that contact be arranged between the represented person and his mother at times when the represented person can be accompanied by one of the family as both the mother and the represented person would then have a carer in attendance. This appears to be rejected by the applicant who asserts that the represented person's mother wants to speak privately with the represented person (that is, not with a member of his immediate family present).
It is submitted in the application for costs that the applications were brought by the applicant only after this email exchange and that the allegations made by the applicant have no foundation and that essentially the applications were made for an improper purpose.
The allegation about the removal of the car by the attorney must be understood in the context of what the applicant knew about the represented person's driving. The applicant, in her written submissions had been critical of the family allowing the represented person to drive, knew that the doctor had recommended that he not drive and that the represented person did not accept this advice. The applicant was very critical that the spouse had returned the keys to the represented person on one occasion.
Although the applicant does not refer in her submissions to the reported aggressive and resistive behaviours of the represented person, the Tribunal is satisfied she was aware of them, based on the report of the Aged Care Assessment Team (ACAT) assessor who had assessed the represented person in the presence of the applicant.
The applicant also refers in her submissions to a report from the spouse to her that the represented person had assaulted the spouse. This is minimised by the applicant who said:
However I did not see any evidence of injury when I visited her soon after.
Having regard to this background, the removal of the represented person's car by the attorney might be seen as a reasonable response by the attorney to the potential safety issues present for both the represented person and the spouse.
In respect of the allegations of neglect in her written submissions and in her oral evidence the applicant refers to the represented person's personal hygiene being poor and that he wore inappropriate clothing for the weather. She also asserts that his medication was unsupervised. When asked in the hearing about her reported observations regarding the personal hygiene of the represented person she stated that this had been throughout 2016, the year before the applications were made.
In her detailed submissions, the applicant makes allegations that the represented person was left alone, unsupervised and wandering. In her oral evidence, she said the dates he had been seen wandering on the road were 8 May 2017 and 9 June 2017.
In her written submission dated 16 June 2017 and filed 19 June 2017 (at paragraph 34), after expressing her concern about lack of supervision and the represented person's wandering on the road, she states:
[The spouse] was seen driving behind him when he went for a walk.
The applicant goes on to say:
It is only in the last two weeks that his family has attempted to seriously address this issue.

That the applications were made to the Tribunal after the family is acknowledged by the applicant to have attempted to 'seriously address this issue', supports the assertion that the applications were not brought to address this concern.
It was asserted by the applicant that the attorney is limiting access to the represented person in an effort to avoid scrutiny of his care. This is not supported by the material filed by the applicant or the other material before the Tribunal. For example the ACAT assessment was conducted at the represented person's home on 15 March 2017 in the applicant's presence and she was also present for the appointment with the geriatrician in January 2017. In her report received 21 July 2017, the ACAT social worker reported the difficulties which had been experienced by the family in accessing Level 4 services for the represented person.
In an email dated 30 May 2017, the attorney reassures the applicant that the represented person is receiving his medication and other medical issues raised by the applicant are being addressed by the represented person's doctor. In another email dated 13 May 2017 from the other daughter of the represented person to the applicant, information regarding options for support services for the represented person is shared. In the email exchange the attorney withdraws the invitation for the applicant to attend appointments regarding the represented person's care. It is said that the applicant is not respectful of the represented person's spouse as his primary carer and spouse. Up until this date, the applicant appears to have had considerable involvement in the contact with services relevant to his care although she denies that it was 'collaborative' with the family. The withdrawal of the invitation to her to participate in meetings and appointments does indicate an unwillingness to have her continue that involvement. However, there is an offer to continue to provide information to her.
From all the material that has been filed, the Tribunal did not conclude that the attorney was attempting to prevent scrutiny of the represented person's circumstances as alleged. It appeared that attempts were being made to increase the level of services and supports which would, in all likelihood, have increased scrutiny of his care. The Tribunal finds that the applicant had personal knowledge of the external services to which the represented person had been referred.

Analysis

Having regard to the challenging environment of a hearing and that the applicant was unrepresented, the Tribunal did not consider that the applicant's demeanour was such that conclusions could be drawn from it about her intentions regarding the proceeding before the Tribunal and draws nothing from her presentation in the hearing to found this costs order.
However, the Tribunal does not accept that the applicant was disadvantaged by the inability of the Public Advocate to provide a report (because the hearing was brought forward). All the parties were in the same position and the applicant did not inspect any documents prior to the hearing in any event and so it is difficult to understand this part of her submission. The issue raised about being distracted in the hearing by the interpreter was not raised at the time and again, if this was an issue, all parties were in the same position.
The Tribunal does not accept the submission of the applicant that the applications were necessary as orders were made. In fact, the needs of the represented person, in respect of managing his affairs (such as liaising with the ACAT team and paying his bills) appear to have been acknowledged by the applicant to be operating even given the defects of form identified in the instruments. Once the defects in form were identified, it was in the best interests of the represented person that the position be regularised. Having said that, the orders made by the Tribunal largely mirrored the choices made by the represented person in his EPA and EPG in the appointment of the attorney as guardian and administrator. The order appointing the Public Advocate as limited guardian to determine the contact he should have with others was in response to the apparent inability of the parties to resolve the issue of contact between the represented person and his mother. Having read the emails produced by the applicant, it must be said that this problem appears to have been largely of the applicant's own making.
In respect of the application for the appointment of an administrator and the proposal that the Public Trustee be appointed, the Tribunal accepts the submission of the attorney and finds that the allegations made by the applicant of 'exploitation' of the represented person by the attorney to be unfounded. Although in her responsive submission, the applicant says she did not intend to imply financial mismanagement or inappropriate conduct, this submission is rejected as the applicant cannot have been unaware of the impact of the language she used in her applications and submissions such as accusations of 'exploitation' and 'avoiding scrutiny' when referring to the conduct of the attorney and the use of 'stealth' when referring to the creation of the EPA and EPG.
It was also suggested by the applicant that there may be insufficient funds to meet services needed for the represented person and that the applicant's belief that the attorney had improperly failed to disclose the asset position of the represented person to the ACAT assessor. It is accepted that there was no basis for this allegation.
The applicant acknowledged that she knew that the attorney was paying the bills but other than that she did not have any current information about the represented person's financial affairs.
The Tribunal finds that through the assertions made in her written submissions, and in the use of the language referred to above, the applicant was inviting the Tribunal to find that the attorney had acted inappropriately and perhaps dishonestly in respect of the creation of the EPA and EPG and in the performance of her role. These are serious allegations and the applicant was not able to establish any foundation for them.
The applicant did not inspect documents filed by the attorney which showed the date of execution and the independent witnessing of the EPA, and the financial records of the represented person, until after the hearing and when the application for costs was foreshadowed by counsel for the attorney.
The applicant's explanation for her failure to inspect the documents filed by the attorney prior to the hearing is not accepted, as throughout her written submissions the applicant is highly critical of the family and the attorney.
The applicant made no attempt to test what she said were her honest beliefs about these very serious matters prior to the hearing. Had she done so and been reassured about the financial management of the represented person's affairs she may have sought leave to withdraw that part of the application, thereby reducing the overall costs incurred by the attorney.
In relation to the applications for revocation of the EPG and the appointment of the Public Advocate as guardian, again the allegations made by the applicant were serious referring as they do to neglect of the represented person.
In determining the costs application the Tribunal considered the protective nature of the jurisdiction and the need for any person who has a genuine belief that a person with disability is subject to neglect to be able to make an application to the Tribunal without fear of a costs order against them. See MB and MM [2017] WASAT 51 at [64].
In considering whether the guardianship application and the application to revoke the EPG have been brought for an improper purpose as is contended, the relevant question here is whether the applicant in this case had a genuine belief regarding the neglect of the represented person's care by the attorney and or his family.
The submissions made on behalf of the attorney that the applications were only made following the exchange of emails and the development of conflict between the parties rather than genuine concern for the welfare of the represented person have some force. However, challenges to the validity of an EPA (and or an EPG), a belief that a diagnosis of Alzheimer's disease is synonymous with a global incapacity, serious family conflict and conflict about the timing of entry of a person diagnosed with dementia into residential aged care are all common issues ventilated in applications before the Tribunal. In this sense, it is difficult to distinguish this application from many made to the Tribunal.
The Tribunal has previously considered allegations of improper purpose for the bringing of applications under the GA Act. In GA and EA and GS [2013] WASAT 175 and , PHQ and LPQ [2015] WASAT 5, In these cases the Tribunal was able to conclusively identify and determine that the applications had been made and or maintained for an improper or ulterior purpose.
Although there are doubts in respect of the motivation of the applicant in this case for her applications, particularly given the timing of the applications and her apparent animosity to the attorney, it is not possible to determine conclusively that the applicant did not have any genuine belief, even if misconceived, that the represented person was subject to neglect.
On the other hand, the Tribunal finds that the application for the appointment of an administrator, and the serious allegations made by the applicant of 'exploitation' of the represented person and 'stealth' on the part of the attorney had no foundation were unreasonable and caused the attorney to unnecessarily incur legal costs.
It has been previously decided that the Tribunal's determination of costs to be awarded should be approached in a broad and relatively robust fashion; see Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49].
Taking this approach the Tribunal determines that half of the costs claimed by the attorney be paid by the applicant.

Orders

1.By 22 January 2018 [name suppressed] applicant shall pay to [name suppressed] the attorney, the amount of $1,966.25.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER