| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KB and EB [2014] WASAT 47 MEMBER : MS F CHILD (MEMBER) HEARD : 19 JUNE AND 31 AUGUST 2013 DELIVERED : 14 APRIL 2014 FILE NO/S : GAA 1820 of 2013 GAA 1525 of 2013
GAA 2351 of 2013
GAA 2352 of 2013
GAA 2978 of 2013
BETWEEN : KB Applicant
AND
EB
Represented Person
Catchwords: Guardianship and administration Applications for guardianship and administration Applications regarding enduring power of attorney Enduring power of attorney revoked Need for administrator - Attorney not suitable for appointment as administrator due to failure to identify need to act with reasonable diligence to protect interests of donor by making interestfree loan to himself Public Trustee appointed administrator Conflict between sons about care and medical treatment Public Advocate appointed as independent guardian as neither son suitable due to conflict between them Legislation: Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 64, s 65, s 104, s 106, s 107, s 108, s 109, s 112(4), Pt 9
State Administrative Tribunal Act 2004 (WA), s 76 Result: Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian
Summary of Tribunal's decision: Following applicationsmade by the sons of EB, an elderly woman with cognitive impairment and significant physical health problems, the Tribunal appointed the Public Advocate and the Public Trustee as limited guardian and plenary administrator of her estate. Although EB had executed an enduring power of attorney appointing her son, KB, as her attorney in 2012, this document had purportedly been revoked by a letter signed by EB in May 2013 prepared for her by another son, PB, although there was doubt about EB's understanding of the effect of the letter she had signed.
The medical evidence indicated that EB was no longer capable of making judgments about her person or her estate. The Tribunal found that there was need for both an independent guardian and an independent administrator to act in her best interests.
The need for a guardian primarily arose from conflict between the sons about healthcare decisions for EB and whether she should remain in a nursing home or be cared for by PB in her own home.
The need for an independent administrator arose because the enduring power of attorney had been revoked, and the medical evidence accepted by the Tribunal was that EB could no longer capably execute an enduring power of attorney. The Tribunal found she needed an administrator to manage her estate and protect her interests. The Tribunal was told that both sons had received interestfree loans from EB and that her pension had been reduced as she was deemed to be receiving the interest income, which she did not receive. KB, who had signing authority on EB's bank accounts, had paid himself an interestfree loan of $350,000 from his mother's funds, he said, primarily to equalise the financial benefit his brother, PB, had received from EB's estate, as PB had lived for many years rent free in his mother's house and was reported not to contribute to property expenses. The Tribunal did not bring the enduring power of attorney into force as sought by KB, as the Tribunal determined that the enduring power of attorney had, in fact, been revoked because there was a presumption that EB was capable at that time of revocation despite the doubt raised about EB's capacity given the medical evidence. Even if this was not the case, the Tribunal did not consider the enduring power of attorney a means by which EB's affairs could be managed, given the failure by KB to put the needs of EB above his own need to equalise the financial benefit he believed PB had received. This action was inconsistent with both the obligations of an attorney under an enduring power of attorney and the obligation of any appointed administrator to act in the best interests of the represented person.
Category: B
Representation: Counsel:
Applicant : In Person
Represented Person : In person
Solicitors:
Applicant : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 These reasons relate to decisions of the Tribunal made on applications in respect of the represented person, EB, an elderly nursing home resident who suffers significant physical health problems and has identified cognitive impairments. 2 An application by KB, a son of the represented person, was filed on 22 April 2013 pursuant to s 106 of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking to bring into force an enduring power of attorney (EPA) dated 10 February 2012 by which EB had appointed KB as her sole attorney. 3 PB, another son of the represented person, then filed an application, under s 109 of the GA Act, seeking intervention in the EPA. As part of the material he put before the Tribunal, PB said that the EPA had been revoked by a letter signed by EB in May 2013, which he had prepared. KB asserted that EB was not capable of understanding the effect of the letter she had signed and therefore the revocation of the EPA was not valid. 4 PB also says there was a lack of transparency in the execution of the EPA and a lack of information to other persons, particularly himself, about the EPA, and that this raises some concern for him, but, as noted, he concedes the represented person was capable of giving the EPA when she did so. 5 PB made a number of allegations about the conduct of the represented person's affairs by KB and advised he had contacted the Western Australian Police about the matters, who advised him the allegations he was making were not police matters. 6 Although at the first hearing held on 19 June 2013, the medical evidence supported the finding that the represented person was unable to make reasonable judgments about her estate, the Tribunal did not bring the EPA into force, given the purported revocation and the application by PB for intervention. KB, the son who had been chosen by EB as her attorney, was appointed to manage EB's affairs, pursuant to an order made under s 65 of the GA Act, until the applications could be finally determined. The applications were adjourned for investigation by the Public Advocate. 7 Following the hearing, KB filed an application for the appointment of an administrator of the represented person's estate and PB also filed applications for the appointment of a guardian and an administrator to be appointed.
Legislation 8 The legislation relevant to these applications is the GA Act, in particular, the following provisions.
Section 106 Section 107 9 The obligations of the donee of an EPA are set out in s107, which includes the following. (1) The donee of an enduring power of attorney – (a) shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure[.]
Section 108 10 Section 108 recognises that the Tribunal may make an administration order in respect of a person's estate notwithstanding the existence of an EPA, and provides that the Tribunal may revoke or vary an EPA that is inconsistent with the administration order made.
Section 109 11 Section 109(1) sets out the power of the Tribunal to intervene in an EPA on application in the following circumstances: A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order - (a) requiring the donee of an enduring power of attorney to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in connection with the power; (b) requiring such records and accounts to be audited by an auditor appointed by the Tribunal and requiring a copy of the report of the auditor to be furnished to the Tribunal and the applicant for the order; or (c) revoking or varying the terms of an enduring power of attorney, appointing a substitute donee of the power or confirming that a person appointed to be the substitute donee of the power has become the donee.
Section 43(1)(b) 12 Section 43(1)(b) provides that to appoint a guardian, the Tribunal must be satisfied that the represented person is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others, and is in need of a guardian.
Section 64 13 Section 64 provides that to appoint an administrator, the Tribunal must be satisfied that the represented person is unable, by reason of a mental disability, to make reasonable judgments about any or all of her estate, and is in need of an administrator of her estate. 14 All these provisions are subject to principles in the legislation set out at s 4, which provides that there is a presumption that people are capable of making judgments about their persons and about their estates unless there is evidence to the contrary. The principles also state that orders should only be made if there are no less restrictive means of meeting the represented person's needs, and that any orders that are made should be made in the least restrictive way possible. In dealing with any matter under the GA Act, the Tribunal must ascertain the wishes of the represented person. The primary obligation of the Tribunal in dealing with matters under the GA Act is to act in the best interests of the represented person.
Hearing of the applications 15 The s 106 application to bring the EPA into force and the s 109 application to intervene in that EPA were first heard on 19 June 2013 and adjourned for investigation by the Public Advocate pursuant to s97(1)(b)(iii) of the GA Act. These applications, and the cross-applications for the appointment of a guardian and an administrator for the represented person later made by each of the sons, were all heard together on 28 August 2013 (final hearing). 16 KB and PB attended the final hearing, as did their former spouses, JB and FB. The representative of the Public Advocate also attended, and produced a written report and made oral submissions. 17 At the conclusion of the final hearing, oral reasons for the decisions of the Tribunal on all the applications were given. KB later sought written reasons for the decisions by letter dated 17 September 2013. That request was not referred to the Presiding Member, who was on leave at that time. The request by KB for written reasons for the decisions was only identified when he later sought access to the audio recording of the final hearing pursuant to s 112(4) of the GA Act. Access to the audio recording was refused as the application for access did not disclose cogent reasons for access to be granted. 18 The Acting President extended the time, under s 76 of the State Administrative Tribunal Act 2004 (WA), for the delivery of written reasons for the decisions, as requested by KB.
Applications 19 The following are the reasons of the Tribunal delivered orally on 28 August 2013, edited for clarity and to remove any identifying information. 20 At the first hearing on 19 June 2013, the Tribunal had an application filed by KB, pursuant to s 106 of the GA Act, to bring into force the EPA executed by the represented person in February 2012. There was also the application by PB for intervention in that EPA. Since the hearing, both sons have filed applications for the appointment of a guardian and an administrator for the represented person; KB's application was filed in June 2013 and PB's application was filed in August 2013. 21 The Tribunal, having applications for the appointment of a guardian and an administrator for the represented person, can now make those orders, if satisfied that the represented person is a person for whom orders can be made. That is, in respect of an administration order, that she is incapable, by reason of a mental disability, of making reasonable judgments now about her estate and that she is in need of an administrator of her estate, and in respect of a guardianship order, that she is unable to make reasonable judgments about her person, is unable to look after her own health and safety, or is in need of oversight and care in the interests of her own health and safety, and that she needs a guardian. 22 The existence or otherwise of an EPA is relevant to the question of whether someone is in need of an administrator of their estate, as it relates directly to whether there is any other way their affairs can be managed, even if they cannot manage their affairs themselves. 23 If there is an EPA that is in existence, that may be an appropriate vehicle for the management of the represented person's finances. The Tribunal is asked in the GA Act to consider any EPA as a potential less restrictive alternative to the appointment of an administrator and, if satisfied that this is a less restrictive alternative, not to make an administration order. The question is: does the represented person have an EPA in place that can be brought into force under a s 106 application? PB says 'no'; the EPA has, in fact, been revoked on 13 May 2013. 24 PB prepared a document for the represented person on 8 May 2013 which was signed by the represented person on 13 May 2013. If that revocation is effective, the represented person does not have an EPA, so the Tribunal must then consider whether she is in need of an administrator of her estate, if satisfied that she is a person for whom that order can be made. 25 There is a presumption that people are capable until there is evidence that persuades the Tribunal that they are not capable. 26 In respect of the EPA itself, the presumption with a regularly executed EPA is that it is effective as an EPA. The document in question is an EPA dated 10 February 2012 by EB, then living at [address supressed], made under s 104 of the GA Act, appointing KB as the represented person's attorney and declaring that the EPA is to be in force only during a period when the Tribunal has made a declaration that the represented person does not have capacity under s 106 of the GA Act. The document is witnessed by a mechanical engineer and by a retired person who is the neighbour of the represented person. The witnessing is consistent with the requirements under the GA Act for the execution of an EPA - one being a qualified witness (the engineer), and another person. The acceptance is in the standard form signed by KB acknowledging that the EPA is in force only during a period of declaration by the Tribunal, and that the EPA is subject to Pt 9 of the GA Act and the obligations set out under the GA Act. On its face, the document is a regularly executed EPA. 27 There is a presumption that the represented person is capable unless there is evidence to the contrary. KB expresses the wish that Dr P, who had been the represented person's general practitioner in the relevant period, give evidence to support his assertion that the represented person was capable at that time of executing the EPA by which she chose him to be her attorney. Dr P is not available to give evidence, but, as noted, there is a presumption in law of capacity, which means that there must be positive evidence to the contrary to rebut that presumption. In this case, there is the regularly executed document with no evidence to the contrary that the represented person was not capable. PB did not maintain his initial contention that the represented person was not capable of executing the EPA in 2012, and conceded that the represented person was capable of executing the EPA in favour of KB.
Coming forward in time to 13 May 2013 and the document which purportedly revokes the EPA 28 PB agrees that this document was prepared and printed at home by him, brought into the nursing home and signed there by the represented person. The position of KB is that this occurred very close in time to the report dated 28 May 2013 of Dr N, who is now the represented person's treating doctor, which refers to a moderate cognitive impairment experienced by the represented person, and to the doctor's opinion that the represented person was not capable of executing an EPA. The corollary of that is that a person who is not capable of giving an EPA is not capable of revoking one. So the position of KB is that the EPA is still in existence and it can be brought into force under s 106 of the GA Act. 29 Considering these documents, the represented person made an EPA in 2012 where she expressed her wish that KB manage her affairs when she was unable to manage them herself. Although the represented person was unwell, PB did not maintain the position that she was not capable of making this EPA. The represented person signed another document in 2013 which also might be taken to be an expression of her wish to revoke that arrangement. This occurred at a time when, again, the represented person was unwell but, this time, doubt is raised about her capacity to understand the effect of what she signed. In June 2013, the Tribunal appointed KB, under s 65 of the GA Act, to act with the powers of a plenary administrator because the assessment at that time was that the represented person may be a person for whom an administration order could be made, given the report of Dr N, and, because of the purported revocation of the EPA, there needed to be some provision for the management and protection of her estate.
Guardianship and administration applications 30 In respect of the applications for the appointment of a guardian and an administrator of the estate of the represented person filed since the final hearing, the Tribunal considers that all the evidence - the evidence of Dr N and the evidence of the family members who regularly visit her - is consistent with the represented person havinga significant memory impairment. KB says she has good days and bad days, but all agree that her memory is quite impaired. PB reports that she does not remember seeing him when he has visited the day before; she does not recall the visit. KB agrees that the represented person has significant memory problems. He asserts that, in his view, the represented person would not be able to manage her financial affairs. Ms K, the facility manager at the nursing home, refers to the very significant medical and health problems that the represented person is experiencing. It is noted that the represented person is dependent on others for the management of her personal care needs. She is dependent on others for very significant medical treatment, including the delivery of oxygen therapy. The assessment by Dr N is that, in his opinion, the represented person could not make decisions about her personal healthcare, her living situation or her financial affairs. None of the material before the Tribunal is in conflict with that opinion, and the Tribunal finds that the represented person is a person for whom a guardian can be appointed. 31 The Tribunal finds that the represented person is in need of oversight and care in the interests of her own health and safety. 32 The Tribunal finds that, by reason of her memory impairment and her cognitive impairment, the represented person is unable to make reasonable judgments about her estate. She is unable to rely on her memory to inform those judgments, so she is therefore a person for whom an administration order may be made.
Need for orders
Guardianship 33 The medical evidence is that the represented person is very dependent on others. She is in need of oversight and care. She is a person for whom a guardian can be appointed. The real question is whether she needs a guardian. 34 The represented person has two devoted sons and she has former daughters-in-law (JB and FB) who maintain contact with her, and she is well supported in that personal sense. But there is significant disagreement about where the represented person should live. KB, on the one hand, says that he is following medical advice and that it is consistent with his own view that the represented person requires residential care - that is, nursing home level care. 35 On the other hand, PB says that the represented person can return home with a higher level of services. He says he has provided those sorts of services to her in the past. He says that he has been advised by an Osborne Park Hospital Aged Care Assessment Team member that the represented person could receive the same level of nursing care at home as she receives in a nursing home. He says a return home is consistent with the represented person's wishes. Both of the former daughters-in-law of the represented person (JB and FB) gave valuable contributions in the hearing about the expressed wishes of the represented person. Both spoke about their discussions with the represented person and their experience of the represented person in the expression of her wishes. FB referred to the represented person giving inconsistent messages about her wishes to each of her sons. 36 Family members have reported to the Tribunal the represented person's wishes as expressed to them at various times, including that she wanted to assist her sons, and her views as to where she wants to live. 37 JB expressed her understanding of the represented person's wish about the management of her finances and her past decision-making in relation to both her house property and the loan. Those expressed wishes have not been consistent. 38 It is generally understood that people would not want others to make decisions for them, certainly not strangers. Therefore, the Tribunal accepts that this would likely be the position of the represented person in respect of the applications to be determined. 39 It is reported that the represented person has inconsistently reported that she wanted to remain in the nursing home or that she wanted to return home. The Director of Nursing at [name of facility supressed] says that there needs to be a guardian because the sons are in conflict about medical care for the represented person. The Tribunal accepts that there is conflict about the level of care and the type of care to which the represented person should have access. It is also said that the represented person needs a guardian to deal with the question of restraint and contact. The Tribunal does not necessarily accept that the bed rails used to prevent the represented person falling out of bed are a restraint. It may be rather a mechanism to prevent a fall from the bed of the represented person rather than to restrain voluntary movement of the represented person, but to put that question beyond doubt and to ensure that there is transparency about this question, a guardian who is focussed on the best interests of the represented person needs to be appointed for that purpose. 40 It is also alleged by the facility, and reported by the Public Advocate, that the contact with PB at times causes distress to the represented person. That is denied by PB. He says that this is not the case. He says he visits the represented person regularly and they have good conversations, despite her very severe hearing impairment. This question needs full exploration because the represented person is a very vulnerable person from a health perspective. A guardian needs to be appointed with authority to determine the contact the represented person has with others, given the represented person's vulnerability. 41 A limited guardianship order with authorities for the issues noted, including where the represented person should live and with whom, healthcare decision-making and contact, needs to be made for the represented person. The conflict between the represented person's sons, which has been clear throughout the proceeding before the Tribunal, and the need for certainty about healthcare decisions for care providers, means that informal arrangements have not met the needs of the represented person. 42 The Tribunal appoints the Public Advocate as limited guardian of the represented person, as it finds that there is no one suitable for appointment as her guardian because both of her sons are in complete disagreement about matters relating to her needs. There needs to be certainty for the aged care facility and for doctors dealing with the represented person in relation to medical treatment.
Administration 43 In relation to the application for an administration order, the Tribunal finds that the represented person is in need of an administrator of her estate. 44 The Tribunal accepts that the EPA which appointed KB was validly executed and met all the formal requirements. There is no evidence that the represented person was not capable of executing that document at the time. The question is raised by PB whether she was well enough, but the document is regularly executed. It is witnessed by a qualified witness and another witness. 45 On its face, it is a document that is an EPA that comes into force on declaration by the Tribunal. There is doubt in the mind of KB about the revocation of the EPA on or around 13 May 2013. There is conflicting evidence about the represented person's capacity to validly revoke the EPA. Dr N's report around that time - a couple of weeks after the revocation - is that, in his opinion, the represented person could not give an EPA. 46 There is conflicting evidence from the sons about whether the represented person understood what she was doing by signing the document prepared by PB. JB, her former daughter-in-law, is firmly of the view that the represented person understood that she was revoking the EPA for the purpose of getting out of the nursing home. Given the report of Dr N, and KB's assertion that the represented person had not understood what she had done and then tried to reverse it the following day, also creates a question about the effectiveness of the revocation. However, there is no power in the Tribunal to declare the validity of the EPA or the validity of a revocation of an EPA. Given that, up until now, there has been no finding of incapacity of the represented person, the revocation signed by the represented person in May 2013 is effective on its face as a revocation of the EPA. 47 Even if it had not been revoked, the Tribunal is not satisfied that the EPA is an appropriate vehicle by which the represented person's affairs should be managed if brought into force. This is because KB has not met the obligations of a donee under an EPA, as set out in the GA Act, to act with reasonable diligence to protect the interests of the donor. It is not the role of an attorney to try to do justice or be fair to other persons who have a claim - or who believe they have a claim - on the estate of the donor, even if that view is genuinely held as an attempt to resolve what is seen as an unfairness in the arrangement of affairs of the represented person. KB does not appear to recognise this. 48 In arranging the loan to himself, KB says that he was trying to equalise the financial treatment of both sons of the represented person. In the evidence given at the final hearing,he explains that the interest foregone by the represented person on the $350,000 interest-free loan to him is approximately $1,200 per month, which he says equates to the value of the rent-free accommodation provided by the represented person to PB, as PB neither pays rent nor contributes to household expenditure. PB is effectively supported by the represented person, even though she is now in a nursing home. KB asserts that PB also has an interest-free loan of $50,000 from the estate of the represented person.
Appointment of a suitable Administrator 49 The Tribunal finds that an administrator is required to be appointed for the management of the represented person's estate to provide certainty for the management of her estate into the future. To put the uncertainty about revocation of the EPA beyond doubt, the EPA is revoked as inconsistent with the order which the Tribunal makes which appoints the Public Trustee as plenary administrator of the estate of the represented person. 50 PB supports the appointment of an independent administrator. KB does not. He believes that the issues of the conflict of interest in relation to the loan matter and the rent-free, expenses paid accommodation for PB can be resolved by directions to the attorney by the Tribunal once the EPA is brought into force. The issue is more fundamental than that. The loan on non-commercial terms to himself places KB in a position of a conflict in his role as an attorney for the represented person. His focus on fairness - in doing justice as he sees it - between himself and PB has had the effect, which he acknowledged in the hearing, of doubly disadvantaging the represented person. This approach is not consistent with an obligation either as the attorney or as an administrator appointed under the GA Act. There are therefore questions of suitability in relation to the ability of KB as an administrator. The Tribunal has no issue that KB understands the mechanics of the administration of the estate. However, a fundamental problem is his lack of understanding of the obligation to act in the best interests of the represented person as the primary concern of a person acting on her behalf, not to deal with the issues and needs of other people, including his own sense of unfairness about PB benefitting from the estate of the represented person over many years. 51 The Tribunal does not find that KB is suitable for appointment as the administrator.
Obligations of an administrator 52 In relation to the rent-free arrangement that PB has enjoyed, and acknowledging the report of the views of JB of the expressed wishes of the represented person to her in the past in this regard, the legislation makes clear that an administrator is not permitted to give away any of the property of the represented person. This includes a licence to remain in the property on non-commercial terms. Appointing the Public Trustee as administrator of the represented person's estate will oblige the Public Trustee to charge a commercial rent for the property at [address suppressed] unless the Tribunal authorises otherwise. 53 The Tribunal will direct that if the Public Trustee considers that a non-commercial rent should be charged for rental of her house property, having regard to the past practice of the represented person, the impact on her pension, and other issues that the Public Trustee might consider, the Public Trustee should make an application to the Tribunal for that authority. The imperative for the Tribunal and for the Public Trustee is to act in the best interests of the represented person, not in the interest of other persons. 54 The starting position is that the Public Trustee should charge a commercial rent for lease of the represented person's property unless authorised not to. It is a matter for the Public Trustee to decide whether or not to bring an application to the Tribunal to seek that authority.
Conclusion 55 Having decided that the represented person needs a guardian and an administrator, the Tribunal finds that she needs both an independent administrator and an independent guardian. 56 The need for an independent guardian is simply because of the intractable conflict between her sons and the impact that this is having on the represented person. 57 The need for an independent administrator is the conflict that KB has in relation to the estate as a debtor to the estate. PB is also a debtor to the estate, but he does not propose himself for appointment. All of these matters need to be regularised by the Public Trustee as an independent administrator of the estate focused on the interests and the needs of the represented person. 58 The Tribunal appoints the Public Advocate as limited guardian with the functions to: • decide where the represented person is to live, whether permanently or temporarily; • decide with whom the represented person is to live; • make treatment decisions on the represented person's behalf; • determine what contact, if any, the represented person should have with others and the extent of that contact; • determine the services to which the represented person should have access; and • consent to the use of chemical or physical restraint of the represented person and to decide matters incidental thereto. The Tribunal approves delegation of the Public Advocate, as guardian of the represented person, to an officer or employee employed in the Office of the Public Advocate. 59 The Tribunal finds that the represented person is unable, by reason of a mental disability, to make reasonable judgments about any or all of her estate. She is in need of an administrator of her estate for the reasons expressed. She cannot have that need met by other means less restrictive. 60 The Tribunal appoints the Public Trustee, 553 Hay Street, Perth as the represented person's plenary administrator, with a direction that the administrator is to seek authority from the Tribunal if the administrator determines that a non-commercial rental should be charged for occupation of the property of the represented person at [address suppressed]. 61 The orders are reviewable in five years. The conflict between the sons is of long standing and seems to be unable to be resolved. The represented person is described by Dr N as having a progressive condition, and so she is likely to remain a person for whom orders could be made in the longer term. 62 It is open for the Public Advocate and the Public Trustee to bring back these orders for review. Other persons may seek leave to have the orders reviewed if the circumstances change for the represented person and a family member could be appointed. 63 The Tribunal finds and accepts the evidence of all the family members to some degree, but, in particular, JB on this point - that it would not be the wish of the represented person that the orders that are made at this hearing are made, but the Tribunal considers that they are the orders that must be made in her best interests. 64 In respect of the application for the bringing into force of the EPA, for the reasons explained, that application is dismissed. 65 Equally, the application made under s 109 of the GA Act for intervention in the EPA is dismissed, there being no EPA in force. 66 The Tribunal will revoke the EPA to put the position beyond doubt, and makes that order pursuant to s 108 of the GA Act, as the EPA is inconsistent with the appointment of the Public Trustee as plenary administrator of the estate. 67 The EPA dated 10 February 2012 by which EB appointed KB as the represented person's attorney is revoked. 68 The administration order is also reviewable on or before 28 August 2018.
Orders
Guardianship Administration 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 administrator is directed to seek authority from the Tribunal if the administrator determines that a non-commercial rental should be charged for occupation of the property of the represented person at [address suppressed]. 3. This order is to be reviewed by 28 August 2018.
Enduring Powers of Attorney On an application made by KB under section 106(1) of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of attorney made by the represented person on 10 February 2012, heard on 28 August 2013, the Tribunal declares and orders that the application is dismissed. On an application made by PB under section 109 of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of attorney made by the represented person on 10 February 2012, heard on 28 August 2013, the Tribunal declares and orders that the application is dismissed. |