JS and CS - [2016] WASAT 14

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JS and CS [2016] WASAT 14

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 6 NOVEMBER 2015

DELIVERED : 23 FEBRUARY 2016

FILE NO/S: GAA 5129 of 2014

MATTER: JS
Applicant
AND
CS
Represented Person

Catchwords:

Guardianship and administration Administration Enduring power of attorney Allegation of misappropriation of cash Allegation of an attempt to pervert course of justice Best interests Overall interest of person to whom protection is directed Use of interpreter Public Trustee appointed as administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(4), s 4(7), s 64(1)(a), s 107, s 108(1a), s 108(1)(a)
State Administrative Tribunal Act 2004 (WA), s 11(8), s 98, s 99(c)

Result:

Public Trustee appointed as administrator
Enduring power of attorney revoked

Summary of Tribunal's decision:

CS was a 76yearold woman who was diagnosed with dementia. She had three children, a daughter, LE, who cared for her in her home, and two sons, IS and JS.
LE and IS were the attorneys for CS under an enduring power of attorney. They were in significant conflict with JS.
JS made an application for the appointment of an administrator of the estate of CS and the revocation of the enduring power of attorney. He made serious allegations against LE and IS.
The first allegation concerned what JS contended was the misappropriation of cash purportedly kept by the late spouse of CS (the father of LE, IS and JS) in a shed at the family home.
The second allegation was that LE had attempted to pervert the course of justice by influencing CS in the response she gave to a question of the Tribunal member in a hearing. CS was being assisted by an interpreter.
The Tribunal ultimately decided that it did not need to make findings about the allegations because it appointed the Public Trustee as the administrator of the estate of CS for other reasons.
The Tribunal accepted that the allegations symbolised the toxic nature of the relationship between LE/IS and JS and the degree of mistrust between them.
The Tribunal decided that it was in the best interests of CS for LE and IS (in particular, LE) to expend their energies caring for CS in her home for as long as possible, as was her wish, rather than being faced with the likely ongoing stress of speculation and argument in the management of the estate of CS.
In appointing the Public Trustee, the Tribunal revoked the enduring power of attorney.

Category: B

Representation:

Counsel:

Applicant: Mr J Eastoe
Represented Person : N/A

Solicitors:

Applicant: Jonathan Eastoe, Solicitor
Represented Person : N/A

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

Charlton v Baber [2003] NSWSC 745
CS and JS [2014] WASAT 173
Public Trustee v Blackwood [1998] 8 Tas R 256

REASONS FOR DECISION OF THE TRIBUNAL:

Background

CS is 76‑year‑old woman who has been diagnosed with dementia. At the time of the hearing in November 2015, she continued to live in her home with support.
CS has three children, a daughter and two sons.
In March 2014, JS, one of the sons of CS, made an application for the appointment of an administrator of her estate pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act).
JS sought the revocation of an enduring power of attorney (EPA) executed by CS on 12 September 2013 appointing her spouse and her daughter as joint and several attorneys and her other son as substitute attorney.
Upon the death of CS' spouse (AS) in May 2014, the daughter and other son of CS became her joint and several attorneys under the EPA.
CS also made an enduring power of guardianship (EPG) on 18 February 2014 appointing the daughter as her enduring guardian and her other son as substitute enduring guardian.
The application for an administration order was heard before Member Child on 1 July and 12 September 2014.
On 12 September 2014, Member Child appointed the Public Trustee as the plenary administrator of the estate of CS upon an undertaking by the attorneys not to act under the EPA during any appointment of the Public Trustee as administrator (2014 proceeding).
The administrator was directed to examine an allegation by JS that cash purportedly held by AS had been misappropriated and to report to the Tribunal on the outcome of that investigation.
The order made on 12 September 2014 was set to be reviewed by 12 February 2015.
On 18 December 2014, Member Child published her decision as CS and JS [2014] WASAT 173 (CS and JS).
In CS and JS, the children were referred to as LE (daughter and attorney), JS (son and applicant) and IS (son and joint attorney). The initials 'IS' were used because both sons share the same initials. I will continue with that practice in these reasons. The late spouse of CS will be referred to as AS or, in reference to the children, as their father.

The current proceedings

The current proceedings concern the review of the 2014 administration order (2015 proceeding).
Hearings on 26 February and 26 May 2015 were held before Member Child. The 2015 proceeding was ultimately adjourned to 23 July 2015 for oral submissions and the delivery of the decision.
However, subsequent to an application by counsel for JS, on 14 July 2015, Member Child recused herself and the 2015 proceeding was listed before me.
Pursuant to s 11(8) of the State Administrative Tribunal Act 2014 (WA) (SAT Act), I am able to have regard to the evidence taken in the hearings by Member Child on 26 February and 26 May 2015. I am also able to have regard to evidence that was given in the hearing on 12 September 2014, to the extent that Member Child did not make findings about certain matters and which were either continued in the 2015 proceeding or were newly raised in the 2015 proceeding but had their genesis in the 2014 proceeding.
Those matters, which are detailed later in these reasons, I will describe as the cash misappropriation allegation and the attempt to pervert the course of justice allegation.
I held a directions hearing on 10 September 2015, and a final hearing was held on 6 November 2015. The hearing was attended by JS and his counsel (counsel), LE, IS, and CH, Trust Manager with the Public Trustee (Public Trustee).
The decision was reserved.

The decision in CS and JS

Relevantly for the 2015 proceeding, the decision in CS and JS found as follows.
CS has been diagnosed with dementia (probable Alzheimer's disease) which is not challenged by her children and, because of her dementia, she is unable to make reasonable judgments about her estate (s 64(1)(a) of the GA Act): CS and JS at [30] ‑ [37].
The presumption of capacity of CS to execute the EPA on 12 September 2013 is not displaced: CS and JS at [50].
A serious allegation was made by JS regarding the disappearance of cash said to have been held by AS at the property in which CS and AS lived. The Tribunal was asked to draw an inference that LE and IS had removed the cash: CS and JS at [52] (cash misappropriation allegation).
The Tribunal made no findings regarding the cash misappropriation allegation and decided that in the then circumstances of CS, there was a need for an administrator of her estate and for an independent examination of the allegation made by JS: CS and JS at [53] ‑ [55].

The estate of CS

In the hearing on 6 November 2015, the Public Trustee described CS' estate as comprising the property in which she lives, a motor vehicle, a bank term deposit of $40,086.95 and funds of $48,798.81 held directly by the Public Trustee.

What the Tribunal must decide

It remains common ground that CS requires someone with the relevant and appropriate authority to manage her estate.
I accept that CS continues to be unable, by reason of a mental disability (her dementia), to make reasonable judgments in respect of matters relating to all of her estate: s 64(1)(a) of the GA Act. There is no evidence before me which puts in doubt the finding of incapacity made by Member Child.
The dispute between JS and LE and IS concerns the particular authority that should be put in place for the long‑term management of CS' estate.
It is the submission of JS that the Public Trustee should remain as the plenary administrator of CS' estate and that the EPA be revoked.
It is the submission of LE and IS that the EPA should be allowed to operate (as it has previously) and that the current order appointing the Public Trustee as administrator be revoked.
I should not make an administration order if I form an opinion that the needs of CS can be met by other means less restrictive of her freedom of decision and action: s 4(4) of the GA Act.
I must, as far as possible, seek to ascertain the views and wishes of CS when considering any matter relating to her: s 4(7) of the GA Act.
My primary concern, however, must be the best interests of CS: s 4(2) of the GA Act.

The case presented by JS

The initial position of JS was that he be appointed the administrator of CS' estate and that the EPA be revoked on the basis that it was invalid because CS lacked full legal capacity at the time of its execution (CS and JS at [18]).
In the hearing on 12 September 2014, JS made the cash misappropriation allegation (see below).
In the first of the hearings of the 2015 proceeding held on 26 February 2015, counsel for JS submitted that the Public Trustee should be reappointed because it was his intention to make detailed submissions to the administrator regarding the decision of the administrator whether to take action to recover the cash allegedly misappropriated (described by counsel for JS as 'civil proceedings for misappropriation') (T:40; 26.02.15).
In a letter to the Tribunal dated 11 March 2015, the solicitor for JS referred to the oral recording and transcript of the hearing of 12 September 2014 and alleged that LE had said something to her mother which had not been transcribed. This was to form the basis of the attempt to pervert the course of justice allegation.
In a statement dated 28 April 2015 (further to orders made by Member Child on 26 February 2015), JS alleged that LE, with the knowledge and acquiescence of IS, instructed CS to give false and misleading information to the Tribunal concerning the cash misappropriation allegation.
On the same day, JS filed with the Tribunal an excerpt from the audio recording of the hearing of 12 September 2014, translated by an accredited translator (National Accreditation Authority for Translators and Interpreters) of the Macedonian language to the English language (attempt to pervert the course of justice allegation) (see below).
Also in the statement of 28 April 2015, JS submitted that the proper forum for the cash misappropriation allegation is the Supreme Court of Western Australia exercising its probate jurisdiction in relation to the estate of AS (I mention in passing that LE states that she is the executor of the will of AS).
In the hearing on 26 May 2015, counsel for JS submitted that he was not seeking or expecting the Tribunal to make a finding in relation to the cash misappropriation allegation and confirmed his view that the matter belongs in the Supreme Court.
In the hearing on 26 May 2015, JS agitated the attempt to pervert the course of justice allegation (see below).
In the hearing on 26 May 2015, counsel for JS reaffirmed the submission made in the statement of 28 April 2015 that the Public Trustee should be reappointed as administrator of the estate of CS and the EPA revoked; namely, that:
•neither LE or IS are fit and proper persons to act as attorneys for CS by reason of offences contrary to s 98 and s 99(c) of the SAT Act and attempting to pervert the course of justice in the 2014 proceeding;
•both the Public Advocate and the Public Trustee support the continuing appointment of the Public Trustee as administrator;
•the EPA does not constitute a less restrictive means of administering the estate and affairs of CS;
•it is not appropriate to characterise the appointment of LE and IS as attorneys under the EPA as an exclusive or singular act of choice by CS in the absence of any evidence that she was fully informed of the possibility that they could act without reference to and without consulting JS; and
•the continued operation of the EPA would be inconsistent with the functions of the Public Trustee as administrator.
Under cross‑examination in the hearing on 6 November 2015, JS stated that he does not know why his mother and father did not appoint him as their attorney. He admits that he has not visited CS for 12 months because of 'you and him' (meaning LE and IS) (T:122; 06.11.2015). He also alleges that LE and IS turned their father against him.
In answer to the question why does he trust LE and IS to make personal decisions for CS (they are the guardians for CS under the EPG), JS stated:
… they're not going to, obviously, hurt my mother, and she's at home. But I don't trust them with all of the money at all.
(T:110; 06.11.15)
JS disputes the evidence of LE (see below) that he did not visit CS or his father for a 10 year period. He states there was a family quarrel about 10 years ago after he noticed CS having:
… episodes, with mum where she was having these sort of visions and things and would sort of start ranting and going off, you know, seeing things, thinking that the kids were saying stuff, thinking that my wife was saying things.
(T:65; 26.05.15)
JS states that he told his father and LE and IS about his concerns, which they rejected and accused him of implying that CS was 'mental' (T:65; 26.05.2015).
Despite this, JS states that apart from the first couple of months after the quarrel, he continued to see his father and CS regularly, saying he lived only 10 minutes away.
In the hearing on 6 November 2015, the further submissions by counsel for JS were as follows:
•The context of the cash misappropriation allegation is an application to the Supreme Court to revoke the appointment of LE as executor of the estate of AS. If those proceedings were to be commenced, the task of JS would be to seek the appointment of himself as executor and there may also be action to recover what is said to have been misappropriated.
•The attempt to pervert the course of justice allegation should be referred to the Director of Public Prosecutions and it would be inappropriate to go any further before the Tribunal with those allegations. There is sufficient evidence before the Tribunal for a prima facie case to be made out based on the report of the accredited translator and the evidence of MS (spouse of JS) (see below).
Counsel submitted that the evidence indicated that the EPA had been procured by the attorneys themselves without consultation with JS. In any case, there was some doubt the EPA had worked in the best interests of CS.
As to why the Public Trustee should be appointed administrator of the estate of CS, JS stated:
It's in her best interests because her ‑ her property and her money is safe and she will be well looked after properly and also I would pay for her [Public Trustee] fees for that to happen.
(T:127; 06.11.15)

The evidence of the Public Trustee concerning the operation of the EPA

As already stated, LE and IS are the joint and several attorneys under the EPA.
In a report for the hearing on 26 February 2015 and in his oral evidence on that day, the Public Trustee states that it was only after the death of AS that LE and IS began to take an active role in CS' day‑to‑day finances and became responsible for the payment of various bills and accounts.
The Public Trustee reports that because the application by JS for the appointment of an administrator was then before the Tribunal, LE and IS decided not to access the bank account of CS but rather pay for her expenses from their own funds and obtain later reimbursement.
On 8 September 2014, LE withdrew $5,266.80 from the bank account of CS as reimbursement for expenses paid by her and IS in the period 4 May to 30 July 2014.
LE and IS had paid for the expenses in cash and provided a number of their bank statements to the Public Trustee showing regular cash withdrawals in support of the reimbursement.
The Public Trustee states that whilst there is no physical proof that the cash was used to pay for the stated expenses, LE and IS provided receipts for all the expenditure that was sought to be reimbursed.
The Public Trustee determined that after an extensive audit of the expenses, no further action was required.

The case presented by LE and IS

For practical purposes I will deal with the evidence and submissions of LE and IS together. Their case is fundamentally the same. If there are certain particulars that require separate identification, I will do so.
Both LE and IS have individually and together provided a number of written statements and submissions to the Tribunal, as well as giving oral evidence.
In a written statement dated 5 February 2015, LE states that CS has always wanted her to be the person in control of her finances and wellbeing in the absence of her father. She states that CS and her late father chose her and IS to be attorney and guardian due to a lack of support shown by JS. LE states that she has given up her employment to care for CS and she believes it is a daughter's place to do so. LE states that she is a very good money manager and that she is prepared to provide her siblings with a statement of account every three months.
In a joint written submission dated 8 May 2015, LE and IS state that the Public Trustee has found that they have acted appropriately as attorneys under the EPA and submit that they have complied with s 107 of the GA Act (obligations of donee). LE and IS state that JS was aware that CS wanted them to be her attorneys because he had had no relationship with the family at all for a period of 10 years leading up to the death of their father.
LE states that she is the executor of the estate of her late father. She says that she did not need to apply for probate because his estate was valued at less than $10,000. She states that she transferred his bank funds and a motor vehicle to CS.
Both LE and IS state that the cash misappropriation allegation and the attempt to pervert the course of justice allegation (see below) are fabricated attempts by JS to discredit them and, according to IS (in putting a question to JS):
… you hated us and wanted to discredit us and wanted us not to have any involvement of [sic] mum's assets or enduring power of attorney[.]
(T:129; 06.11.15)
LE states that her father told her that he did not want the Public Trustee involved in the family's financial affairs, although this is disputed by JS.
At one point during the hearing on 26 February 2015, LE stated:
It's frustrating. I ‑ to tell you the truth, I don't even want the power of attorney anymore. I've just had enough. We've got enough problems in our own lives, but it's just the ‑ point that I want my dad to have his final wishes granted, honoured. It's just what [JS] has put everyone through, just because he's a disgruntled son. He was never there for him. He's come to see Mum, like three times since the last hearing. Last time was at Christmas. Doesn't … ring, doesn't come ‑ every time he comes, I go in the bedroom, the three times he has come. He stayed half an hour and he goes. There's no contact. He doesn't care about Mum. That's the thing I ‑ that annoys me.
(T:27; 26.02.15)
In responding to a submission of the Public Advocate regarding the property where CS lives, LE states that the only circumstances which would necessitate the sale of that property would be if CS' care needs are such that she can no longer be looked after in her home, or when she dies. In the instance of the latter, LE states that in CS' will, the property is bequeathed to the three children (herself, IS and JS).
The final submission of LE and IS is that the EPA should be allowed to operate as was the wish of their late father. They say that they have done nothing wrong and have done everything in their power to look after CS and their father.

The cash misappropriation allegation

This allegation was first made at the hearing on 12 September 2014 which, together with the hearing on 1 July 2014, comprised the 2014 proceeding.
Simply put, the allegation is that prior to his death, AS kept an amount of cash in a shed (also referred to as a garage) at the property where CS and AS lived, and that the cash has disappeared.
LE states that AS died on 3 May 2014 and was 'very independent to the end' (T:25; 12.09.14).
JS alleges that sometime between 9 February 2014 and the hearing on 12 September 2014, the cash went missing. As Member Child stated in her reasons in CS and JS, the inference asked to be drawn was that the cash was stolen by LE and IS, although Member Child did not make a finding about it.
JS states that he first found out AS kept cash in 1991, after he had returned from Europe. He had no money so when he worked, he would hand CS his cash wages to ensure he would save. He says that at that time, his parents kept cash money in their wardrobe. JS states that he last saw the cash held by AS at the beginning of 2014 because his father told him he had a terminal illness and wanted to show him the cash.
The evidence of JS is that on 7 February 2014, AS showed him the container in which the cash was kept and its location, and then showed him the cash. There was a piece of paper which is said to have recorded that $75,000 was the cash amount which was represented by the actual cash remaining of $72,000 and a loan to IS of $3,000 which had yet to be repaid. JS states that AS told him the cash was for CS. He took a photograph of the location of the container but not of the container or the money itself.
The further evidence of JS is that on or about 9 February 2014, the cash was shown by AS in its location to LE, IS and SS (spouse of IS). SS was alleged to have discussed it with JS' spouse, MS.
At the hearing on 12 September 2014, CS stated (through the interpreter) after Member Child said to her that questions were being raised that AS held money in the shed:
Yes they were used ‑ there were money there but not now.
(T:13; 12.09.14)
However, the Public Advocate's representative said that when she interviewed CS on 12 August 2014, CS had denied there was or had been cash in the shed (T:16; 12.09.14).
In cross‑examination on 26 May 2015, JS stated that he knew that the family had seen the cash 'because dad told me' but when later he was asked again how did he know, JS stated because SS told his wife, MS (T:76 and 82; 26.05.2015). JS also stated that CS told him that LE took the cash.
The order by Member Child appointing the Public Trustee as administrator of the estate of CS included a direction to investigate the allegation made by JS.
The Public Trustee filed a report of his investigation on 17 February 2015 and also gave oral evidence on 26 February 2015.
The relevant matters from the Public Trustee's report are as follows:
•The allegation was denied by LE, IS and SS. They all say they were not aware of any money being kept in the shed by AS, and they deny that they were shown any money on or about 9 February 2014.
•The Public Trustee formed an opinion that '[LE]'s responses and her body language suggested she may not have been entirely truthful when answering these questions'; however, this opinion, formed when interviewing LE, was not tested in open hearing.
•CS advised the Public Trustee that she and AS would keep some money in the bank and some at home.
•The Public Trustee, in dealing with claims for reimbursement by IS for expenses paid on behalf of CS (see above), noted that a bank account belonging to IS and SS had increased by over $105,000 between March and May 2014 (IS explained in his evidence on 26 February 2015 that these funds were his share of the sale of a block of land given by AS to his children many years ago. Both JS and LE received the same amount. The evidence of IS was not disputed).
•IS acknowledged that AS had lent him $3,000 in cash but that it had been repaid over a short period of time.
•The Public Trustee was unable to 'conclusively prove whether cash belonging to AS was held in the garage and what, if anything, happened to those funds, although 'statements made by [IS] in relation to the loan of $3,000 support one part of the allegation made by [JS]'.
In a written statement by IS (also signed by SS) dated 6 February 2015, IS states that at no time had AS informed him he was holding cash in the garage. He questions why JS did not raise the existence of the cash immediately after the death of AS on 3 May 2014. He says that it was 'widely known' that AS had lent $3,000 to SS. He denies absolutely that family members were shown the cash on or about 9 February 2014.
In his oral evidence on 26 February 2015, IS says that AS was very independent with his banking and that at times he would have cash in an envelope with which LE could pay certain bills.
IS reiterates his view that JS has made the allegation to discredit him.
In a written statement dated 23 February 2015, SS states that she borrowed $3,000 from AS unbeknownst to IS as she was unable to work for two months due to health reasons. She says that she repaid the loan soon after recommencing employment. She states that she had no knowledge of cash held by AS and never had a discussion with MS about it.
SS states that when AS was still alive but confined to bed, she had a discussion with JS at the front of CS' and AS' property, and JS is alleged to have said that he hated LE and IS and would do everything in his power to stop them continuing as attorneys.
In her oral evidence, LE states that if AS did have cash in the shed then perhaps JS took it, given that he had a key to the shed.
The Public Trustee states that there would need to be fresh evidence to warrant a reopening of the investigation concerning the alleged missing cash.

The attempting to pervert the course of justice allegation

This allegation arises from the hearing on 12 September 2014 in the 2014 proceeding but which was put to the Tribunal in the course of the 2015 proceeding.
The allegation is that LE influenced CS when she gave evidence in the hearing on 12 September 2014 and that the event was not properly transcribed.
CS gave her evidence by way of an interpreter.
As already stated, JS filed a translation dated 18 April 2015, from an accredited translator, of the exchange between Member Child and CS, with interruptions during that exchange by JS and LE.
The exchange appears to have been only partially captured on the original transcript at page 13. The translation filed by JS states as follows.
Member Child's question to CS (as interpreted) reads:
What is being said here is that your husband, as such, kept money, in the shed, kept cash money, and right now that is being discussed, that is what they are talking about, about the issue, that he kept money there, that's what he/she thinks.
Followed by:
Female voice: What he just said, tell him … [inaudible segment] … there is nothing.
[JS]: You just said 'no'.
Female voice: What he just said, tell him … [inaudible segment] … there is nothing.
[JS]: You said to say to mum, 'no'.
I note from the transcript that CS ultimately answered through the interpreter:
Yes they were used ‑ there were money there but not now.
(T:13; 12.09.14)
By order of the Tribunal dated 15 May 2015, the parties were given the opportunity to cross‑examine the interpreter but chose not to do so.
In his oral evidence, JS states that he listened to an oral recording of the hearing of 12 September 2014 several times. He states:
… as the translator was translating to mum, [LE] commenced to tell her to, you know, give her a negative, and basically say what he [sic] is saying … as Member was giving instructions for the interpreter of what to say to mum, and then as the interpreter was speaking to my mother, then [LE] started to talk into her ear. And that's when I said 'no' because that was the quickest thing [indistinct] at that time.
(T:60; 26.05.15)
In a written statement dated 8 May 2015, LE and IS state:
The allegation made by [JS] … is incorrect. The situation was that CS did not understand the question the Member was asking and accordingly the question was translated to her in Macedonian by the Interpreter. CS did not understand the version of Macedonian spoken by the Interpreter and accordingly [LE] tried to translate the question in her version of the Macedonian language. She was trying to ask her mother if there was 'something in the shed or nothing' a simple breakdown of the question. She did not tell her there was nothing in the shed as inferred by [JS]. Part of the translation by [LE] was inaudible as noted on the transcript and it cannot be concluded that [LE] said anything misleading to her mother and she denies that she instructed CS to give false and misleading information to the Tribunal in relation to the fabricated allegation of cash in the shed.
JS states that he did not notice anything else in the transcript of the hearing on 12 September 2014 where LE objected to what the interpreter said or that CS could not understand what was being said to her.
In a written statement dated 18 September 2015, MS (spouse of JS) states that at the time she heard Member Child ask CS about the alleged cash in the shed, she observed that LE was speaking to CS in Macedonian and was also prodding her in the thigh area. MS states that she contemplated drawing her concerns to Member Child but before she could do this JS had interjected '… and drew attention to the fact that [LE] was trying to influence [CS]'.
In a further written statement dated 8 October 2015, and in response to MS, LE denies that she prodded CS. She states that CS did not understand the dialect of the interpreter so she translated Member Child's statement/question into 'our dialect'. LE states that in the course of the hearing on 12 September 2014, Member Child and counsel for JS had discussions that were not interpreted for CS and that CS was largely 'in the dark'. LE states that contrary to the assertion made by JS to Member Child that he could understand the Macedonian interpreter, this is untrue, as none of her, IS and JS are fluent in that language.

The Public Advocate

The Public Advocate, in referring to the evidence of the Public Trustee that most transactions made by LE and IS for CS were in cash, submits that it is not clear that LE and IS fully understand their role as attorney under the EPA.
As regards the cash misappropriation allegation, the Public Advocate submits:
I would say that doubt in my mind creates a probable need for an administrator.
(T:34; 26.02.15)
The Public Advocate further submits that there is a risk that the extreme animosity between JS and LE and IS will 'cloud decision making' (T:36; 26.02.15).

The decision of the Tribunal

The primary concern of the Tribunal is the best interests of CS. The expression 'best interests' in the context of the protective jurisdiction of the GA Act reinforces the idea that the paramount concern is the overall interest of the person to whom the protection is directed: Public Trustee v Blackwood [1998] 8 Tas R 256. Put another way, the expression is concerned with the person's 'separate and independent welfare': Charlton v Baber [2003] NSWSC 745 at [52].
I have decided that it is in the best interests of CS that the Public Trustee be reappointed plenary administrator of her estate.
In accepting that the Public Trustee is to act as the long‑term manager and decision‑maker of the financial affairs of CS, I must revoke the EPA because its continued operation would be inconsistent with the functions I have given to the administrator: s 108(1a) and s 108(1)(a) of the GA Act.
My reasons for appointing the Public Trustee are as follows.
There is great animosity between LE and IS (LE/IS) on the one hand and JS on the other. On the evidence, there is no prospect of a resolution, given that the feelings of the parties are deep‑seated.
Although conflict, of itself, is not necessarily a reason to appoint a decision‑maker independent of the parties, it is in many cases a significant factor. This is so if it impacts on the overall interests of the person who is no longer able to impose their will on their own circumstances.
This, in my view, is what has happened with the situation of CS.
The depth of feeling between JS and LE/IS is exemplified by the very serious allegations made by JS.
It is not simply a case of 'throw dirt enough and some will stick'; however, in the course of this long proceeding, the allegations and their implications have consumed the parties.
As such, if I were to allow the EPA to continue, I am satisfied the financial affairs of CS would be a constant source of speculation and argument which would detract from the splendid and devoted care being given to her by, in particular, LE. For example, there is the possibility, as flagged by counsel for JS, that there may be a challenge to the appointment of LE as executor of the estate of her late father, AS, based on the cash misappropriation allegation.
In the longer term, there is a real possibility that CS could no longer be cared for in her home, in which case her property would need to be sold. This, in my view, would precipitate further 'bloodletting' between her children, given the mistrust that exists.
I accept on the evidence that AS wanted LE and IS to be the attorneys for CS (IS originally as substitute attorney). It seems likely to me that CS would have deferred to her spouse in these sorts of matters because LE has framed her reason for continuing with the EPA as giving expression to the final wish of AS.
Importantly though, and I have given a degree of weight to this, is the evidence of LE that she has 'just had enough' of being attorney.
I am satisfied that a principal motivation of LE to continue as attorney is to respect her father's wishes, but because of all that has happened, it is a heavy burden.
It seems to me that it is in the best interests of CS that LE be freed from her role as attorney because the conflict must, in my view, impact on her capacity to care for her mother, given the stress it has generated. I am satisfied that without the care provided by LE, CS would need to live in a nursing home, which is not her wish.
I do not think it appropriate in the circumstances to allow the EPA to continue on the assumption that IS will take over the role from LE. This is not how the practical operation of the EPA was put to me and in any case this would not, in my view, stop the speculation and argument mentioned earlier.
I also note the undertaking given by JS that he will pay for the fees charged by the Public Trustee in being the administrator of CS' estate and therefore CS should not be financially disadvantaged by that appointment.
Because of the reasons I have given for the appointment of the Public Trustee, there is no need for me to make specific findings regarding the cash misappropriation allegation and the attempt to pervert the course of justice allegation. However, I make the following comments.
The way in which both these allegations were put before the Tribunal made the proceedings difficult to manage. The cash misappropriation allegation in particular was raised by JS, it appears, without notice during the hearing on 12 September 2014. Although subsequently submitted by counsel for JS that it was not the intention of JS to ask the Tribunal to make a finding on the allegation, I agree with Member Child that in the protective jurisdiction of the GA Act, it is not a simple matter of a party discontinuing a particular line of evidence. Once a matter is before the Tribunal then it impacts, depending on the weight given to it, to the judgment made about a person's best interests.
In the circumstance of the decision I have made, I have taken the cash misappropriation allegation to symbolise the toxic nature of the relationship between LE/IS and JS.
The attempt to pervert the course of justice allegation raises an issue as to the conduct of parties and the process used in proceedings under the GA Act when an interpreter is present. This is made all the more difficult when the interpreter is used for a person such as CS, who has been diagnosed with a cognitive impairment and whose understanding of the proceeding, and more particularly the questions put to her, is limited by that impairment.
In a highly charged hearing there may be a temptation by a party to 'intervene' if they consider, for example, that the interpreter has not correctly translated either the question or the response. However tempted and even if for the best of motives, it is highly inappropriate for any party to seek to intervene, other than through the Presiding Member.
By her own admission, LE spoke to CS directly whilst the interpreting process was underway. It was wrong of her to do so, and although I make no finding about the character of that intervention, it is further demonstration in my view of the level of mistrust that exists between LE/IS and JS and the attendant need for an independent person to manage the estate of CS.
In hearings of the Tribunal under the GA Act that are riven by conflict, it seems to me that when the person for whom the application is made needs an interpreter, the person and the interpreter should be seated away from the other parties.

Order

The Tribunal declares that the represented person:
(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:
The order made on 12 September 2014 is revoked and an administration order in the following terms is substituted for it:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The enduring power of attorney dated 12 September 2013 by which the represented person appointed LE and JS to be her attorneys is revoked.
3.This order is to be reviewed by 23 February 2021.
I certify that this and the preceding [127] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER