KRM
[2017] WASAT 135
•20 OCTOBER 2017
KRM [2017] WASAT 135
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 135 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1094/2017 | 21 APRIL, 14 SEPTEMBER AND 9 OCTOBER 2017 | |
| Coram: | MS C WALLACE (SENIOR MEMBER) MS M CONNOR (MEMBER) DR E ISAACHSEN (SENIOR SESSIONAL MEMBER) | 20/10/17 | |
| 38 | Judgment Part: | 1 of 1 | |
| Result: | Guardianship application dismissed Public Trustee appointed as plenary administrator with directions | ||
| B | |||
| PDF Version |
| Parties: | KRM |
Catchwords: | Guardianship and administration Dementia Whether the statutory presumption of capability rebutted Questions of cognitive capability and need are distinct separate questions Capability is a medical question and need is a legal question Whether a need for administrator Financial exploitation Directions to administrator required |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(3)(1), s 43(1)(b), s 43(1)(c), s 44(1), s 44(2), s 51, s 64(1)(a), s 64(1)(b), s 64(3)(a), s 68(1), s 68(3), s 70, s 71(4), s 84(a), s 111 |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 GYM [2017] WASAT 136 Ms G [2017] WASAT 108 |
Summary | This matter involved an application brought pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking the appointment of a guardian and an administrator for the represented person (KRM) who suffers from dementia. ,KRM contended that the statutory presumption of capability could not be displaced on the medical evidence and thus the Tribunal could not appoint either a guardian or administrator for him. The Tribunal received written and oral evidence from both a geriatrician, Dr Harper, and a neuropsychologist, Professor Foster. Dr Harper's view was that KRM suffered with dementia and lacked capability to make reasonable judgments in respect to financial and estate matters and also in respect of accommodation and services decisions. Professor Foster's detailed assessment also found that KRM suffered with dementia and presented with significant deficits in his executive functioning. Despite those assessment results, Professor Foster found that KRM could be supported to make 'assisted decisions' largely based on his view that KRM had the benefit of significant family support. However, at the hearing Professor Foster sought to change the conclusion in his report and stated that KRM lacked the capability to make complex financial/estate decisions. This is because Professor Foster, when presented with a more comprehensive factual background, formed the view that KRM did not have the option of 'assisted decisionmaking'. The Tribunal noted that but for Professor Foster confusing the questions of cognitive capacity with the legal question of need (and whether less restrictive options are available) his report would have concluded that KRM lacked capability in financial/estate decisions. Thus his revised conclusion at the hearing was entirely consistent with the assessment results set out in his written report, and also consistent with the views of Dr Harper.,In summary the Tribunal found that the medical evidence before it was sufficient to rebut the presumption of capability for KRM in respect of financial/estate decisions, but was not sufficient to displace the statutory presumption of capability to make personal decisions. Thus the Tribunal could appoint an administrator for KRM but could not appoint a guardian.,Further, the Tribunal found that there was no less restrictive option available to the appointment of a plenary administrator. The Tribunal found that it should appoint the Public Trustee as independent administrator rather than KRM’s three adult sons because it found that they were unsuitable. The sons of KRM had been involved in a number of questionable transactions, including the gifting of large sums of money and the gifting of KRM's home, in circumstances where they knew there were proceedings on foot where questions of KRM's legal capacity had been raised and were yet to be decided. It was therefore necessary for the administrator to be directed to investigate those transactions and if appropriate to take action to recover KRM's estate.,The Tribunal determined that a three year review period was appropriate for the administration order. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KRM [2017] WASAT 135 MEMBER : MS C WALLACE (SENIOR MEMBER)
- MS M CONNOR (MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
- Represented Person
Catchwords:
Guardianship and administration - Dementia - Whether the statutory presumption of capability rebutted - Questions of cognitive capability and need are distinct separate questions - Capability is a medical question and need is a legal question - Whether a need for administrator - Financial exploitation - Directions to administrator required
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(3)(1), s 43(1)(b), s 43(1)(c), s 44(1), s 44(2), s 51, s 64(1)(a), s 64(1)(b), s 64(3)(a), s 68(1), s 68(3), s 70, s 71(4), s 84(a), s 111
Result:
Guardianship application dismissed
Public Trustee appointed as plenary administrator with directions
Summary of Tribunal's decision:
This matter involved an application brought pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking the appointment of a guardian and an administrator for the represented person (KRM) who suffers from dementia.
KRM contended that the statutory presumption of capability could not be displaced on the medical evidence and thus the Tribunal could not appoint either a guardian or administrator for him. The Tribunal received written and oral evidence from both a geriatrician, Dr Harper, and a neuropsychologist, Professor Foster. Dr Harper's view was that KRM suffered with dementia and lacked capability to make reasonable judgments in respect to financial and estate matters and also in respect of accommodation and services decisions. Professor Foster's detailed assessment also found that KRM suffered with dementia and presented with significant deficits in his executive functioning. Despite those assessment results, Professor Foster found that KRM could be supported to make 'assisted decisions' largely based on his view that KRM had the benefit of significant family support. However, at the hearing Professor Foster sought to change the conclusion in his report and stated that KRM lacked the capability to make complex financial/estate decisions. This is because Professor Foster, when presented with a more comprehensive factual background, formed the view that KRM did not have the option of 'assisted decisionmaking'. The Tribunal noted that but for Professor Foster confusing the questions of cognitive capacity with the legal question of need (and whether less restrictive options are available) his report would have concluded that KRM lacked capability in financial/estate decisions. Thus his revised conclusion at the hearing was entirely consistent with the assessment results set out in his written report, and also consistent with the views of Dr Harper.
In summary the Tribunal found that the medical evidence before it was sufficient to rebut the presumption of capability for KRM in respect of financial/estate decisions, but was not sufficient to displace the statutory presumption of capability to make personal decisions. Thus the Tribunal could appoint an administrator for KRM but could not appoint a guardian.
Further, the Tribunal found that there was no less restrictive option available to the appointment of a plenary administrator. The Tribunal found that it should appoint the Public Trustee as independent administrator rather than KRM’s three adult sons because it found that they were unsuitable. The sons of KRM had been involved in a number of questionable transactions, including the gifting of large sums of money and the gifting of KRM's home, in circumstances where they knew there were proceedings on foot where questions of KRM's legal capacity had been raised and were yet to be decided. It was therefore necessary for the administrator to be directed to investigate those transactions and if appropriate to take action to recover KRM's estate.
The Tribunal determined that a three year review period was appropriate for the administration order.
Category: B
Representation:
Counsel:
Represented Person : Mr H Jackson
Solicitors:
Represented Person : Cullen Macleod
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
GYM [2017] WASAT 136
Ms G [2017] WASAT 108
Introduction
1 This matter is before the Tribunal pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act). The s 40 application was brought by the proposed represented person's son, CM, on 19 April 2017 seeking the urgent appointment of a guardian and an administrator by the Tribunal. That application was before a differently constituted Tribunal on 21 April 2017 and was adjourned part heard so that investigations could be conducted and further evidence provided to the Tribunal relevant to the question as to whether the statutory presumption of capability in favour of proposed represented person (KRM) could be rebutted.
2 It is useful to provide a brief history of the proceeding in the Tribunal particularly because the application was a matter which was part heard. The history of the proceeding in the Tribunal is also relevant to certain transactions which were undertaken by interested parties prior to publishing these reasons.
History of proceedings in the Tribunal
3 As already mentioned, KRM's son, CM, made an application pursuant to s 40 of the GA Act on 19 April 2017 seeking an urgent appointment of a guardian and an administrator for KRM (pages 121 of Exhibit KM1). The purported basis of the application is set out on page 3 of that document and in summary form provided the following information:
• KRM has a diagnosis of dementia.
• KRM is becoming unsure of making decisions in various degrees such as financial, hygiene etc.
• It is becoming difficult for KRM to care for his wife.
• KRM is vulnerable to financial exploitation by his grandchildren.
• KRM was being held against his will in hospital and needed to be released into the care of his three sons.
4 CM proposed himself and his brother GM to be appointed as his father's guardian and administrator. On the same day CM also lodged a s 40 application with the Tribunal in respect of his mother, GYM (the details of which appear in GYM [2017] WASAT 136 ) also seeking for himself and his brother GM to be appointed as his mother's guardian and administrator on an urgent basis. That application also identified that KRM's wife suffered with dementia and was also becoming unsure of making decisions in various areas including financial.
5 Both applications in respect of KRM and GYM were listed for an urgent hearing before Member Connor on 21 April 2017. At that hearing KRM and GYM were represented by Mr Wilson. KRM's son, BKM, was also legally represented at this time. All other interested parties appeared in person including CM and GM. The medical evidence in relation to decisionmaking capability before the Tribunal at this time can be summarised as including:
• A Montreal Cognitive Assessment (MoCA) performed by KRM on 19 April 2017 at which time he achieved a score of 17 out of a maximum score of 30 points.
• A medical report dated 20 April 2017 prepared by Dr Harper, geriatrician, who attended on KRM during a brief hospitalisation in April 2017 noted that he had a diagnosis of dementia (likely Alzheimer's) and lacked the capability to make decisions in respect of complex financial and estate matters and legal matters and also lacked capacity to make decisions in respect of his accommodation and services. Dr Harper was unsure whether KRM had capacity to make decisions in respect of simple financial matters or in respect of medical treatment.
• A letter prepared by Dr Stephen Ford, psychogeriatrician, dated 18 April 2017 addressed to Dr Harper stating that he had reviewed KRM on ward at Joondalup Health Campus on 18 April 2017 and noted that he evidenced 'substantial memory deficits'. Dr Ford concluded that KRM was a vulnerable individual and suggested that formal cognitive testing was required.
6 At this time it was acknowledged by the Tribunal that the medical evidence, limited as it was, raised some concerns regarding KRM's capability but that further formal comprehensive cognitive assessment was required before the Tribunal could reach a final determination (T:7 and 25; 21.04.17).
7 At this initial hearing KRM's granddaughter, BM, gave evidence under affirmation. Because there were some concerns raised by counsel at the resumed hearing as to the lack of evidence offered by BM it is important to set out the evidence that she gave to the Tribunal at the early stages of the proceeding. That evidence is set out below:
[BM]: ... there has been examples of not physical abuse, but emotional, financial, and in terms of not necessarily what – anything that [GM] and [CM] have done, but[BKM], in isolating Nanna and Grandad from the rest of the family who have regular contact with them. And I have detailed my concerns in the application that I submitted.
...
[BM]: …there are occasions often where my nanna isn't taking her medication. She has lost a significant amount of weight. There's definitely need in the house for assistance with some cleaning. When we last went to their house, there was plumbing was not – wasn't working. You know, just general, you know, ...
...
[BM]: ... up until the last few weeks, both [GM] and [CM] have had no contact with nanna and granddad for about five years or so.
...
[BM]: And [CM] also being part of, you know, going along with [BKM] in, you know, not allowing us to have contact with our grandparents. He was there when my – when [BKM] directed his nephew to assault me. And he didn't do anything to stop that.
...
CONNOR, MS: - - - there's still issues of conflict between - - -
[BM]: Yes. And when I've tried to contact him, when I were on the 7 April, both [CM] and his wife went over to nanna and granddad's house when my granddad still had his iPhone. And I asked on three occasions to please speak to them. And they didn't want to speak to me. So I have tried to have contact with them, to, you know, resolve this as a family. And, you know, just false allegations have been made in terms of, you know, claims about me stealing money and jewellery.
Things like that. Which is completely false and it's offensive. ...
[GM] and [CM] had a dispute with my grandparents about five years ago over a drag racing car being left at their property. And after that time, there has been no contact. So I do understand they've got back in touch now, to – and they want to assist, but I don't feel comfortable with that, given the issues that have come up over the last few weeks. I think that it's better so there's no family conflict, because it distresses my grandparents. That an independent person is made to – you know, is the person that makes the decision.
...
WILSON, MR: ... [BM] said there were instances of emotional and financial abuse, but that's a conclusionary statement. There's not much meat on that allegation. ...
[BM]: I – there is evidence of that, because their assets have been sold. Both of their cars and their farm. And neither of grandparents know where the money has gone.
...
[BM]: What about both of the cars and all of the chark and the tractor and all the farming equipment?
...
WILSON, MR; ... Any assets that have been sold were sold by them.
[BM]: That's not true. They were sold on Gumtree by [BKM].
...
[BM]: ... I have concerns about financial emotional abuse. And [CM] made false allegations about myself, you know, taking money and jewellery, which this is the first, you know, I've heard about it, and the police have not contacted me.
(T:914; 21.04.17)
8 On this occasion the Tribunal made declarations as to lack of capability in respect of GYM and appointed the Public Advocate as limited guardian to make decisions on her behalf. The administration application made in respect of GYM was adjourned part heard, together with this proceeding.
9 Member Connor made the following observations:
CONNOR, MS: ... In respect to [KRM] and the administration, he does have a diagnosis of dementia, likely Alzheimer's and there has been a test undertaken recently where I think it was a score out of 17 out of 30. ... but Dr Ford indicated that he thought there should be further testing of [KRM]. So on that basis on the evidence I've got before me I'm not satisfied that the presumption has been rebutted and that further investigations need to be undertaken for that to occur.
So I'm going to adjourn that matter to when we come back and I will set those orders in respect to that. And that the Public Advocate investigate the allegations in respect to the financial abuse and make recommendations as to whether there is a need for an administrator in respect to both [KRM] and [GYM], and recommendations as to who should be appointed. ...
(T:28; 21.04.17)
10 The adjourned hearing in respect of GYM and KRM was back before the Tribunal reconstituted by Member Eddy on 24 July 2017. At that time KRM and GYM remained represented by Mr Wilson. Their son BKM was no longer legally represented at this time, however, his brothers CM and GM were represented by counsel, Ms Taylor.
11 Member Eddy made the following observations at the commencement of the hearing:
EDDY, MS: …I've got to raise with you first as to whether we can proceed today. There is two questions in my mind. One is, Mr Wilson, while it's a matter entirely for you, I would on the face of it be surprised to find there was a basis on which you could act for both [GYM] and [KRM]. It would appear to me there is a very patent conflict of interest between them, and you would therefore have difficulty acting for either. ... But in circumstances where [KRM], if he attests that he is capable, partook of a transaction where the evidence before the tribunal is pretty unequivocal that [GYM] didn't have capacity that deprived her of an interest, that's a pretty clear conflict to me I think, Mr Wilson. But as I say, a matter for you.
Ms Taylor, yours is not so clear. As in not yours, but the person who has instructed you. It just raised the question in my mind – and I will leave that entirely for you. And I don't have the same level of concern, but the lawyer who now represents [CM] and [GM] originally represented [BKM]. [BKM] appears to be a person involved in a transaction whereby the house in Mullaloo is transferred from [KRM] and [GYM] to the three sons. That's potentially a very questionable transaction depending on the findings the tribunal ultimately makes. ... if [BKM] and their interests aren't aligned, that's potentially a problem.
... As I say, Mr Wilson, entirely a matter for you. I can't dictate to you at all as to what your ethical responsibilities are or aren't, but if you withdrew I would have to adjourn in order to allow them the opportunity to obtain alternative representation. My other problem is I've been handed witness statements from [KRM] and [GYM] this morning, which is patently insufficient time if you're going to provide witness evidence in a hearing. And also, [KRM] and [GYM] aren't here. And I'm not going to allow witness evidence to be put forward before me without a chance to cross-examine them, particularly in circumstances where these statements are virtually identical in wording, and also where there is extensive evidence from a neuropsychologist indicating that [GYM], at least, didn't have any understanding about various transactions, etcetera, that she purports to make statements about in her statement.
So that's very concerning. I will require them to be here. If they wish to have evidence, they have every right to put evidence, but they will be here for questioning. So I need to adjourn the hearing in order to allow that to happen. Both of these things in my view could have been avoided. Mr Wilson, I think, has not acted well in relation to last minute filing of statements. And so you've all come here prepared and I don't see how I can proceed. Does anyone want to make any submissions?
...
WILSON, MR: Well, I don't wish to make any decision about it right now. I will take the Member's observations on board and give them some consideration. I don't intend to withdraw today but I will consider your comments.
(T:24; 24.07.17)
12 Ultimately the Tribunal could not proceed on 24 July 2017 for a number of reasons including issues of conflict for the legal representatives but also the absence of KRM and GYM in circumstances where witness statements had been filed on their behalf. There was also the difficulty that none of the legal representatives had sought to summons or request the attendance of medical practitioners to give oral evidence in a context where there was a real issue in contention in relation to whether the presumption of capability in respect of KRM had been rebutted. The presiding member therefore adjourned to prepare summons requiring the attendance of both KRM and GYM and each of the doctors who had provided cognitive capacity evidence in respect of KRM.
13 The Tribunal was reconstituted on the next occasion on 4 August 2017 with Member Eddy presiding together with Member Connor and Senior Sessional Member Dr Clarnette. On this occasion, KRM and GYM were separately represented by new solicitors and counsel. The Public Advocate, BM and another granddaughter, AM, were all also legally represented at this hearing. On this occasion the solicitors and counsel previously representing BKM, and then subsequently GM and CM, were only representing GM. It appeared therefore that the observations made by Member Eddy at the previous occasion had been duly considered.
14 The panel was required to consider applications made by counsel representing KRM and GM seeking that Member Eddy recuse herself. The basis of the applications was the contention that Member Eddy had expressed views which raised questions in the mind of a fairminded lay observer about her ability to bring an impartial mind to the question as to, if KRM or GYM needed a guardian and/or administrator appointed, who ought to be appointed. That is, that Member Eddy had closed her mind to whether one or more of the three sons would be suitable to be appointed. Member Eddy made the decision to recuse herself. The proceedings were therefore adjourned to a further date.
15 The Tribunal was again reconstituted and the hearing recommenced in respect of each matter on 14 September 2017 with Senior Member Wallace presiding together with Member Connor and Senior Sessional Member Dr Isaachsen. The matter did not conclude on that day and the panel sat a second day on 9 October 2017 at which time the proceedings were concluded and the decision reserved. In addition on 9 October 2017 the Tribunal made an interim s 65 order both in respect to this proceeding and the application in respect of GYM appointing the Public Trustee on an interim basis as plenary administrator limited to making all decisions in relation to a joint bank account held in the names of KRM and GYM. The evidence that the Tribunal received during those two further days of hearing relevant to its determination will be addressed later in these reasons. KRM gave oral evidence at the resumed hearing although reliance on his written witness statement was withdrawn.
The legal framework
16 The primary concern of the Tribunal in guardianship and administration proceedings is the best interests of the represented person or proposed represented person; s 4(2) of the GA Act.
17 The starting premise in all guardianship and administration proceedings is the presumption of capability which must be rebutted in order for the Tribunal to consider the subsequent question as to whether the represented person or proposed represented person needs a guardian or an administrator and whether there are less restrictive options available to them; s 4(3), s 4(4) and s 4(5) of the GA Act. The standard of proof to be applied is that as set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, 361-361. That is, the Tribunal needs to be satisfied on a balance of probabilities having regard to the nature and seriousness of the allegations. The Tribunal accepts that considering removing a person's right to make important decisions in respect of themselves is one of the most serious decisions that the Tribunal could make and therefore evidence of lack of capability sufficient to displace the statutory presumption of capability must be unambiguous and clear in its terms.
18 If the Tribunal appoints a guardian it can only do so pursuant to s 43(1)(b) of the GA Act if it is satisfied on the evidence before it that KRM is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight care or control in the interests of his own health and safety or for the protection of others.
19 It was raised in closing submissions as to whether the GA Act empowers the Tribunal to appoint a guardian for a proposed represented person where the evidence supports a finding that the person is in need of oversight care or control in the interests of their own health and safety, despite not being able to rebut the presumption of capability set out in s 4(3) of the GA Act. In particular reference was made to the decision of the Tribunal in Ms G [2017] WASAT 108 (Ms G). No party supported such an interpretation of the legislation but it was appropriately raised on the basis that the Tribunal may decide to follow that decision. Because it is not an issue in contention in the matter before this Tribunal it does not need to be addressed in any detail other than to note that the Tribunal accepts the submissions made by counsel for KRM to the effect that the decision is unprecedented and does not appear to be supported on a proper statutory construction of s 43(1) of the GA Act, the principles of which require the provision to be construed consistently with the language and purpose of the statute in its entirety.
20 It is clear when construing s 43(1) of the GA Act, in the context of the statute as a whole, that one must overcome the presumption of capability prior to considering the question of need and one must favour less restrictive options the appointment of a guardian being the option of last resort. In particular this Tribunal notes that s 43(1) clearly denotes that it is 'subject to s 4' wherein the presumption of capability lies. Suffice to say that this Tribunal has considered the decision of Ms G on this point and finds, with all due respect, that it is patently wrong. The Tribunal cannot appoint a guardian to make personal decisions on behalf of KRM without first, as a threshold question, rebutting the statutory presumption of capability. If one were able to do so, it would make the statutory presumption of capability simply redundant.
21 Pursuant to s 64(1)(a) of the GA Act the Tribunal can only appoint an administrator of either a part or the entirety of the estate of KRM if it is satisfied on the evidence before it that by reason of a mental disability that he is unable to make reasonable judgments in respect of matters relating to all or part of his estate. The parties accepted in this matter that the diagnosis of dementia is a mental disability for the purposes of the GA Act.
22 As mentioned, even if a finding of incapability is made by the Tribunal, it must also find that there is a current need for either a guardian and/or administrator to be appointed to be able to make the further declaration required pursuant to s 43(1)(c) and/or s 64(1)(b) of the GA Act.
23 In guardianship and administration applications the Tribunal must ascertain as far as possible the views and wishes of the represented person/proposed represented person; s 4(7) of the GA Act.
24 If the Tribunal determines that KRM lacks capability to make personal decisions and that there is a need for the appointment of a guardian, the Tribunal needs to assess the suitability and willingness of any person proposing himself or herself in that decisionmaking role. In particular, the Tribunal needs to assess whether the proposed guardian:
a) will act in the best interests of KRM;
b) is not in a position where their interests conflict or may conflict with the interests of KRM; and
c) is otherwise suitable to act as the guardian.
(s 44(1) of the GA Act)
25 The Tribunal also needs to take into account pursuant to s 44(2) of the GA Act the following factors:
a) the desirability of preserving existing relationships within the family of KRM;
b) the compatibility of the proposed appointee with KRM and with the administrator (if any) of KRM's estate;
c) the wishes of KRM; and
d) whether the proposed appointee will be able to perform the functions vested in them.
26 In respect of determining who should be appointed as an administrator for a proposed represented person, s 68(1) of the GA Act requires the Tribunal to assess whether a proposed administrator will act in the best interests of KRM and is otherwise suitable to act as the administrator of KRM's estate. Pursuant to subsection (3) the Tribunal also needs to take into account as far as is possible:
a) the compatibility of the proposed appointee with KRM and with the guardian (if any) of that person;
b) the wishes of KRM; and
c) whether the proposed appointee will be able to perform the functions proposed to be invested in the administrator.
27 If the Tribunal appoints either a guardian and/or an administrator those appointed to those roles must act in the best interests of the represented person; s 51 and s 70 of the GA Act.
28 Any order made appointing the guardian or administrator by the Tribunal must be reviewed within a particular period of time not exceeding five years from the date that the order was made; s 84(a) of the GA Act.
Issues for determination
29 The first threshold issue is whether KRM has the capability of making his own decisions in respect of both the financial/estate domain of decisionmaking as well as the personal decisionmaking domain.
30 Pursuant to s 4(3) of the GA Act KRM is presumed to be capable of looking after his own health and safety, making reasonable judgments in respect of matters relating to his person, managing his own affairs and making reasonable judgments in respect of matters relating to his estate. This presumption of capability needs to be displaced on the basis of cogent, unequivocal medical evidence.
31 If the statutory presumption of capability can be displaced, then further issues arise for determination. Firstly, is the question as to whether KRM needs either a guardian or an administrator to be appointed. The question of need is in respect of whether there are any decisions which currently need to be made in the best interests of KRM and secondly if decisions do need to be made whether there are less restrictive options available to KRM. Further, if the Tribunal were to find that KRM currently needs a guardian or administrator to be appointed, the issue for determination for the Tribunal is whether there should be independent appointments or whether family member/s ought to be appointed. KRM's three sons propose themselves either singularly or jointly in respect of both guardianship and administration. Therefore it is necessary for the Tribunal to consider their suitability as proposed appointees.
32 Lastly, if the Tribunal does make either a guardianship and/or administration order consideration needs to be given as to whether those orders ought to be limited or plenary in nature and if limited, what functions ought to be bestowed on those roles. Further, in respect of administration, the Tribunal needs to consider whether particular directions need to be made to the administrator (s 71(4) of the GA Act) and/or whether the appointment should be made subject to conditions and restrictions (s 64(3)(a) of the GA Act). In addition the Tribunal if making either a guardianship and/or administration order needs to consider the term of the order before review of it is appropriate.
Background facts
33 KRM is an elderly gentleman aged 87 years with a diagnosis of dementia but who otherwise is in good physical health. Shortly prior to the s 40 application being lodged with the Tribunal, KRM had been residing in his residential home, jointly owned with his wife in Mullaloo. KRM has been married to GYM for 63 years. They originally lived and worked on a farm in Wyening (often referred to as the 'Bolgart farm'). They have three adult children being GM, BKM and CM who all reside in the suburbs of Perth. They also have a number of grandchildren including BM and AM who are children of BKM. There has been some longstanding conflict between BM and AM with their father BKM, particularly between BM and BKM.
34 It is uncontroversial between the parties that during the course of 2016 a significant amount of farm machinery and incidentals were sold by KRM with significant assistance from his son, BKM. This culminated in the ultimate sale of the farm property itself which settled on 1 March 2017 for the amount of $1,615,309.23. The proceeds of the settlement of the farm were deposited into a bank account in the joint names of KRM and his wife. On 8 March 2017 $50,000 was transferred out of another jointly held bank account of KRM and GYM into an account in the name of BKM. The amount of $50,000 was paid to BKM as commission for his role in the sale of the farm. This comprised of a commission of just over 3% and represented a standard commercial commission percentage (T:209; 09.10.17).
35 KRM's granddaughter, BM, made an urgent s 40 application seeking the appointment of an independent guardian and administrator with the Tribunal in respect of GYM on 10 April 2017.
36 On 12 April 2017 BM attended the Mullaloo home to visit her grandparents. BKM was present and an altercation arose between the parties which required the attendance of the police. BM alleged (refer to in [7] above) that BKM asked his nephew to physically remove her from the property. Although the Tribunal is uncertain as to the exact events of the evening of 12 April 2017, what is clear is that shortly following the incident BM, as the person protected, obtained a violence restraining order on 18 April 2017 from the Perth Magistrates Court restraining contact between BKM and herself (page 147 of Exhibit KM1). BKM's nephew was also charged with the assault of BM (T:213; 09.10.17).
37 On 13 April 2017 BM arranged for KRM and his wife to see their general medical practitioner, Dr Millward, who arranged for their urgent admission to Joondalup Health Campus. Cognitive capacity assessments undertaken during that admission, as previous noted, indicated that KRM was suffering from a mental disability, being dementia, likely Alzheimer's. The admission was deemed necessary in a context of information provided by BM to Dr Millward in respect of concerns regarding health and safety, possible neglect and financial exploitation. During the hospital admission BM was noted as next of kin and contact was prevented by KRM's three sons due to the allegations and concerns raised by BM.
38 Also on 13 April 2017, of relevance, an amount of $1,606,523 was transferred from a joint bank account in the name of KRM and his wife to an account in the sole name of BKM. On the same day a further large withdrawal was made by BKM transferring the amount of $244,314 from KRM and GYM's joint bank account into BKM's bank account. These transactions were performed by BKM without either KRM or GYM's knowledge because they had been admitted to Joondalup Health Campus and were not in contact with BKM (T:217; 09.10.17). The transfers were performed with the knowledge of BKM's two brothers (T:242-244; 273-276; 09.10.17).
39 Ultimately KRM was discharged against medical advice on 20 April 2017 with the assistance of his son BKM who attended the hospital under a false name so as to enable him to gain access to his parents (page 58 of Exhibit KM1).
40 KRM and GYM were not in a physical state to return home following their discharge from hospital and stayed with their son CM and his wife, effectively convalescing, until about July 2017, a period of approximately 13 weeks. During that period the sons of KRM attended to repairing a number of issues with the home at Mullaloo and preparing it for their parents' return.
41 As previously mentioned, on 19 April 2017, CM made s 40 applications in respect of KRM and GYM seeking to be appointed, with his brother GM, as joint guardians and administrators.
42 As noted, the Tribunal conducted a hearing on 21 April 2017 at which time the Public Advocate was appointed as limited guardian of GYM for a period of three months. Although the Tribunal found that GYM lacked capability to make reasonable judgments in respect of matters relating to all of her estate, an administrator was not appointed at that time so that further investigations and evidence could be presented in respect to the question of need and whether less restrictive options were available. The s 40 application made in respect of KRM was also adjourned part-heard.
43 On 15 May 2017 KRM's three sons attended with him and his wife at the offices of Mr Linfoot, solicitor, in order to prepare a Deed of Gift and associated transfer documentation to facilitate the transfer of KRM's residential property in Mullaloo to his three sons. A will was also prepared at this time for KRM. KRM executed all relevant documentation in respect of the transfer/gifting of his property and his will. Mr Linfoot was not made aware of the Tribunal proceedings by KRM's three sons in respect of either KRM or GYM (T:209; 237; 278; 09.10.17). The transfer of the Mullaloo property was registered with Landgate on 31 May 2017 (page 128 of Exhibit KM1).
44 By 30 June 2017 the joint accounts of KRM and GYM were closed. The only remaining funds at that time totalled $2,564.84. Also on the same day a new joint bank account was opened into which the $2,564.84 was deposited.
45 On 26 July 2017 BKM transferred to his parents' account the amount of $200,000 which had previously been withdrawn by him on 13 April 2017. During the period of convalescence of KRM and his wife with his son CM there were regular cash withdrawals made by KRM in the presence of CM in the amount of $1,000 (pages 210, 211 and 224 of Exhibit GM1 and Exhibit KM4). On some occasions several such withdrawals were made by KRM during the course of a week. In addition during that time approximately $3,000 was paid to CM by way of rent for the 13 weeks that KRM and his wife resided with CM (T:229; 09.10.17). KRM and GYM also paid a significant amount on grocery expenses during that period (pages 210, 216-218 and 224 of Exhibit GM1).
46 In July 2017, KRM and his wife returned to the Mullaloo residence and remain living there. They receive services by way of Silver Chain in respect of assistance for GYM with taking medication, preparation of meals and assistance with cleaning the home. Their three sons attend regularly, and also offer significant assistance over the weekend when no external service providers are attending.
47 On 18 August 2017, KRM and his wife paid a tax debt to the Australian Taxation Office in the amount of $33,014.05 in respect of the sale of their farm. Other significant expenses include legal expenses and they have also contributed to the payment of BKM's and GM's legal fees (T:182-184; 09.10.17).
48 At the time of the hearing concluding on 9 October 2017 it was estimated that the remaining funds in the joint bank account of KRM and GYM is approximately $40,000. Ongoing legal expenses will need to be paid from that account in addition to weekly expenditure which is estimated at $863.50 per week. KRM currently has no source of income and is not currently entitled to receive a Centrelink old age pension (Exhibit KM4). KRM gave brief oral evidence before the Tribunal on 14 September 2017 and could not recall what funds he had in his bank account; he could not recall what he did with the proceeds of the farm; and nor could he recall whether he currently owned the home in Mullaloo (T:17; 21-22 and 25; 14.09.17).
Determination
Whether the statutory presumption of capability has been displaced
49 It appears, at least on the basis of KRM's three sons' evidence, that they first noticed signs of significant health problems of a physical and mental nature around March 2017 (page 264 of Exhibit KM1 and T:216; 09.10.17). These observations appear consistent with the s 40 application made by CM on 19 April 2017 noting that KRM suffered from dementia and exhibited uncertainty when making decisions in various areas including financial (page 3 of Exhibit KM1).
50 However, it was not until KRM was admitted to Joondalup Health Campus in April 2017 that it appears that any formal cognitive assessments had been undertaken. On 19 April 2017 he undertook a MoCA and achieved a score of 17 out of 30 (page 31 of Exhibit KM1). During this hospital admission KRM was attended to by Dr Jason Harper, a geriatrician, and was also referred to Dr Stephen Ford, a psychogeriatrician, for review whilst on the ward. Although Dr Ford did not undertake any objective cognitive testing of KRM he noted that he 'clearly has substantial memory deficits'(page 33 of Exhibit KM1). In a letter Dr Ford wrote to Dr Harper on 18 April 2017 Dr Ford stated:
given his limited recall and understanding of the current events there is a need for a review of the finances to ensure that there are no unexplained cash flows. I am not able to get financial information from the couple given their cognitive difficulties. I think some formal cognitive testing of [KRM] would be useful and may facilitate a better clarity of his ability.
51 In addition Dr Ford noted that 'given that I am unsure of the true financial situation I am unable to assess his abilities in that domain'.
52 Dr Harper's view was the KRM suffered with dementia with no reversible causes evident such that it was not a temporary situation and would not improve. Dr Harper provided a medical report to the Tribunal for the purpose of the proceeding dated 20 April 2017 which set out that in his view, KRM was possibly incapable of making decisions in relation to simple financial matters and was certainly incapable of making decisions in relation to complex financial decisions such as management of property or large sums of money, purchase or sale of significant assets, and also lacked capability in relation to legal matters. In respect of personal decisionmaking, Dr Harper was unsure whether KRM had the capability to make reasonable decisions in respect to medical treatment but was of the view that he lacked capability to make decisions in relation to his accommodation and services (pages 3842 of Exhibit KM1).
53 It was arranged for KRM to undergo a comprehensive cognitive assessment with Professor Foster, a consultant neuropsychologist, on 23 May 2017. Also in attendance on that day was KRM's son, BKM. Professor Foster was instructed by KRM's solicitor at the time, Mr Ashley Wilson, to undertake the assessment and to provide a report specifically for the purposes of this proceeding. Professor Foster produced a detailed report on 12 June 2017 (pages 93119 of Exhibit KM1).
54 It is important to note that at the time that Professor Foster was given background information for the purposes of his assessment of KRM he was instructed that KRM's farm was sold on 1 March 2017 for approximately $1.6 million. However, he was not informed as to what was done with the proceeds of the farm. In addition Professor Foster was told that KRM lived at the Mullaloo property which was described as his 'own residence' (page 99 of Exhibit KM1). Of course, at the time of the assessment undertaken by Professor Foster, KRM no longer owned the Mullaloo property. This information was not disclosed to Professor Foster.
55 Professor Foster also conducted a MoCA on 23 May 2017 and the score was identical to that obtained during KRM's hospital admission, that is, 17 out of 30 (page 103 of Exhibit KM1). Professor Foster noted in his report that a score of 16.2 out of 30 indicates Alzheimer's disease and a score of 22.1 out of 30 indicates mild cognitive impairment.
56 In relation to Professor Foster's assessment of KRM's executive functioning, which includes higherlevel cognitive skills such as planning and organisation, reasoning and problem solving, monitoring, abstraction, initiation, generativity, impulse control, judgment and insight, he reported that KRM's performance 'indicated marked impairment relative to anticipated levels of functioning' (page 105 of Exhibit KM1). Professor Foster went on in his report to note that KRM 'manifests significant deficits relative to anticipated levels of functioning with respect to elements of attention/concentration, verbal and visual memory, psychomotor speed, language, executive functions and visual/spatial capacity' (page 106 of Exhibit KM1). Professor Foster also concluded in his report (page 107 of Exhibit KM1):
The cognitive domains commonly impaired in [Alzheimer's disease] include memory, language, perceptual skills, attention, constructive abilities, orientation, problem solving and functional capacities. This cognitive profile is consistent with the findings of detailed neuropsychological testing undertaken with [KRM] on 23 May 2017.
57 Much was said at the hearing itself about the appropriate test to be applied when assessing a person's capacity. It is therefore important to note the test applied by Professor Foster as identified in his written report which was provided in his referral letter from KRM's then solicitors (pages 112114 of Exhibit KM1). In particular Professor Foster acknowledged:
It is not sufficient that the person is regarded as vulnerable. Under the law, the capacity to undertake a certain transaction or to deal with a certain thing relates to the thing that one is doing. The person is capable, in terms of the law as it exists in Australia, if the person is capable of understanding the general nature of what the person is doing by his or her participation. Capacity may be described as the capacity to understand the nature of the transaction when it is explained. This requires a judgment about the person's capacity for assisted decisionmaking.
(Tribunal emphasis)
58 Interestingly, Professor Foster also availed himself of a number of other sources of information he considered as relevant in undertaking capacity assessments which included The United Nations Convention on the Rights of Persons with Disabilities which identifies the rights to autonomy and beneficence. Professor Foster also noted in his report that decisionmaking is not an all or nothing consideration and ought to be considered within specific contexts as well as in relation to specific decisions and 'moreover, it is important to consider an individual's specific situation' (page 114 of Exhibit KM1). Professor Foster acknowledged that decisionmaking capacity is fluid and can change over time and that poor judgment itself should not be equated with impaired decisionmaking capacity, that is, competent people can make poor decisions.
59 Professor Foster then proceeded in his report to consider specifically the areas of decisionmaking the subject of this proceeding. In relation to guardianship, that is, personal decisionmaking including medical treatment, accommodation and services, Professor Foster was of the view that on balance KRM was able to make reasonable judgments in respect of those areas of decisionmaking (page 115 of Exhibit KM1).
60 In relation to finances and estate, Professor Foster stated that KRM continued to be able to make reasonable judgments in respect of matters relating to his estate notwithstanding his cognitive profile. Professor Foster went further to note that 'to the best of my knowledge, [KRM] is currently managing his life semiindependently with some support and care provided by other family members' (pages 115116 of Exhibit KM1). Of relevance, Professor Foster concluded by noting 'I'm not aware of any significant risks or threats, harm or exploitation based on the information available to me at the present time. Further, systemic investigations may however be warranted given the family conflict/s that appear to have occurred and which seem to be ongoing'.
61 At the hearing the Tribunal had the benefit of oral evidence from both Dr Harper and Professor Foster. In the Tribunal's view Dr Harper's evidence was somewhat limited mainly due to the very brief period of time that Dr Harper had involvement with KRM. His assessment also took place during a time when KRM was urgently admitted to hospital and perhaps presenting in a stressed state. Thus although Dr Harper's assessment is certainly useful in identifying concerns of cognitive deficits of KRM in midApril 2017, that information alone without further comprehensive assessment would, in the Tribunal's view, be insufficient to displace the presumption of capability.
62 However, the information is useful to the extent that it is consistent with and corroborates the view expressed in oral testimony by Professor Foster. Importantly, it presents a consistent presentation of cognitive deficit. In summary, Dr Harper's clear view, which remained even under strenuous crossexamination, was that KRM had a diagnosis of dementia and presented with significant cognitive impairment. During his hospitalisation the staff on the ward undertook two formal testing, one being an abbreviated mental test score (AMTS) which is a standard screening test out of 10 points. KRM scored 6 out of 10 on 13 April 2016 (scores of less than 7 are considered abnormal). KRM was then given the MoCA on 16 April 2017 and scored 17 out of 30 with scores of less than 23 or 24 being considered as abnormal. KRM was interviewed by Dr Ford, psychogeriatrician, who agreed with Dr Harper that he presented with significant cognitive impairment (T:29; 14.09.17).
63 In the Tribunal's view the conclusions reached in Professor Foster's report are surprising in the context of his comments and findings regarding KRM's cognitive functioning capability. It certainly appeared that Professor Foster was somewhat influenced by the contextual information provided (which did not present an accurate factual presentation) and an apparent focus on the autonomy of an individual and an inherent need to support assisted decisionmaking (T:67; 14.09.17).
64 A proper interpretation of the report, in the Tribunal's view, is that if information had been forthcoming of possible exploitation, that is, that 'assisted decisionmaking' would not operate in KRM's best interests, that a finding of a lack of capability would have been made by Professor Foster. This raised concerns in the Tribunal's mind as to whether Professor Foster was stepping outside of his role of giving an expert opinion on cognitive decisionmaking capability and assessing whether KRM was in need of an administrator. In the Tribunal's view those two questions are distinct and separate and those opining on medical cognitive capacity issues ought not to confuse that question with the question of need. To illustrate the Tribunal's concerns in this regard it is useful to refer to the following excerpt of evidence from Professor Foster:
JACKSON, MR: You've identified what you've described as significant cognitive impairments, but you've still reached the view that [KRM] has the ability to make reasonable judgments in respect of his own personal care and matters relating to his estate. Can you explain to the tribunal how and why you reached that conclusion?
FOSTER PROF: On on the on the basis of the evidence that he although he manifested some cognitive deficits, in terms of principles of autonomy and least restrictive options I believe that he has the capacity to act in his own best interests, in the context of making decisions when it's explained to him what the nature of the decision is.
JACKSON, MR: All right. And the the information that you've taken into account in reaching that conclusion is what?
FOSTER PROF: My quantitative test findings interpreted in the context of all the other information available. Notwithstanding some caveats that I've cited, I think, in my conclusions about systematic investigations being warranted into his his personal matters.
(T:67; 14.09.17 Tribunal emphasis added)
GRAHAM, MR: ... [W]hen friend Mr Jackson asked you to explain the basis of the opinion you've expressed in your report, you said the principles of autonomy and least restrictive options had led you to the finding that [KRM] was capable of making those judgments. Is that a ?
FOSTER, PROF: I would I would say that is with some considerations. ...
GRAHAM, MR: ... And the question that Mr Jackson put, that I am putting it to you now, is can you please clarify for me exactly what it is that you say counterbalances the impairment issues to a sufficient degree for you to form a medical opinion that, notwithstanding those impairments, [KRM] is still capable of making reasonable judgment?
FOSTER, PROF: Well, I don't believe I believe he is a vulnerable gentleman and he presented as quite a frail gentleman, but I don't believe he has crossed the threshold of incapacity in terms of the thing that what he is doing in terms of general nature when it is explained. You know, so in terms of assisted decision making, I think I recommended that family that he have support from other family members. And going back to what we discussed earlier, I believe he, in all likelihood – in the context in which I gave my opinion, would be likely to understand the nature of the transaction when it's explained to him. In terms of what the nature of the transaction is; with regard to his his financial affairs and also medical and other matters.
(T:70; 14.09.17 Tribunal emphasis added)
65 It was ultimately unnecessary to further question Professor Foster's evidence and his focus on the importance on autonomy which, in the Tribunal's view, lead him to the conclusion that KRM's clear cognitive deficits could be counterbalanced by 'assisted decisionmaking'. This is because he sought to change this view at the hearing.
66 During the course of the hearing it became apparent to the Tribunal that Professor Foster had not been fully and comprehensively informed as to the factual context within which he was providing capacity evidence. In particular, he was not provided information in respect to the gifting of the proceeds of the farm to KRM's three sons at the time of writing his report and nor was he ever appraised of the fact that KRM and his wife had gifted their Mullaloo property to their three sons. This is despite the fact that both of those transactions had been undertaken prior to Professor Foster carrying out his assessment of KRM for the purpose of providing a report to the Tribunal. In the Tribunal's view it is important to set out the relevant parts of the transcript of Professor Foster's oral testimony in this regard:
GRAHAM, MR: Do you recall hearing [KRM] this morning say that he couldn't remember where the money from the farm sale had gone?
FOSTER, PROF: I – I – I did hear that and I was concerned about it.
GRAHAM, MR: Yes. And then he subsequently said he thought it had gone into their account, [KRM&GYM] I think he referred to?
FOSTER, PROF: Yes. And then he talked about accounts with the Westpac but he wasn't able to give more specific information.
...
GRAHAM, MR: ... Did you hear him say that he wasn't sure whether he owned the house he was living in or not?
FOSTER, PROF: Yes. I did hear that. ...
...
WALLACE, MS: Professor Foster, can I just intervene at the moment. I just want to clarify a position with you. Is my understanding correct that collateral information – factual information about somebody's estate is important information in the context of your assessment as to the person's ability to make reasonable judgments in respect to their estate? I mean, that's my understanding, that it is part of the relevant information that you would take into account in giving your view on cognitive capacity decision-making?
FOSTER, PROF: Yes. And that's a I would accept that. On the other hand, in terms of the context of, you know, the principles that we've discussed of autonomy and assisted decision-making and the least restrictive options ...
(T:7273; 14.09.17)
GRAHAM, MR: ... [O]n 19 May 2017 – on that date instructions were given for the property to be transferred to the three children and that transfer subsequently was effected. ... Can you explain how, if at all, that information changes the views that you've expressed in relation to [KRM's] ability to make reasonable judgments, and in particular with reference to his capacity to understand his financial position and financial transactions?
FOSTER, PROF: Well, it does raise an additional significant concern of course, and I wasn't aware of that information – I wasn't aware of the information, as I explained to Mr Jackson, about the proceeds from the Bolgart farm until about one month ago, and I wasn't aware about the further details that you've just provided to me until literally a minute ago. ...
GRAHAM, MR: Yes. Yes. Well, if I turn back to your report?
FOSTER, PROF: None of this was disclosed to me, as you will be aware, during the assessment, although some of those events had already taken place.
.
...
FOSTER, PROF: In the context of the further information that has been provided, I think his capabilities are more limited than I had perhaps supposed previously based on the evidence that I had obtained. As this further information has come to light, he is maybe more vulnerable than I previously thought to being led into making decisions that may be against his best interests.
...
FOSTER, PROF: What I was trying to raise is a revised opinion, or bring forward a revised opinion in terms of the concluding section of my report where I said I would continue to adhere to the view that [KRM] would be willing to listen to relevant guidance and professional advice, but there should be perhaps more independence in that advice than there has been to date. ...
GRAHAM, MR: ... [T]aking into account everything that you now know and everything that we've just covered, is it now your view that [KRM] is in fact unable to make reasonable judgments in respect of matters relating to both his person and his estate, and that as a consequence you're expressing the view that an independent body should be appointed to assist him to make those decisions?
FOSTER, PROF: As pertains to the information I agree with that statement as pertains to the information that has been brought forward regarding financial matters ...
...
GRAHAM, MR: Professor, just picking up on that. So are you saying that you have sufficient information to form a view that he cannot make reasonable judgments in respect of his estate and financial matters, but what you're saying in relation to the matters in relation to his person is simply that you don't have information in terms of his ability to make judgments in that respect in a factual context, and therefore you're not expressing a view?
FOSTER, PROF: That's what I'm saying, yes.
(T:8388; 14.09.17)
67 Professor Foster further expanded on his revised view by noting that KRM would be able to make relatively low level financial decisions (T:93; 14.09.17).
68 Although there was some critique by GM's counsel in respect of Professor Foster changing his view on the basis that he had insufficient information surrounding the gifting of the Mullaloo property, the Tribunal rejects that submission. Professor Foster certainly understood at the time of providing the revised opinion that KRM received independent legal advice prior to transferring the Mullaloo residence into his sons' names and also that he acknowledged and consented to the transfer (T:94; 14.09.17). Professor Foster confirmed in response to a question from the Tribunal that more information is always better in the context of a comprehensive capacity assessment and he raised concerns that it appeared that matters of significant import had been concealed from him (T:99; 14.09.17).
69 Counsel for GM also raised a concern that Professor Foster was applying an inappropriate test in providing his revised opinion, that is, that he had concerns that the decisions being made by KRM were not in his best interests rather than determining whether he had the capability to make decisions. In relation to this issue the following exchange between Professor Foster and the Tribunal is relevant:
WALLACE, MS: Professor Foster, I mean, the point is well made, I think, by Mr Jackson in that we are not forming a view about good or bad decisions here, because people with capability do make bad decisions and that's their entitlement to do that?
FOSTER, PROF: Yes.
WALLACE, MS: The Tribunal needs to understand whether the person has the capacity to make a reasonable judgment, whether they choose to do so or not is a different matter. I had understood your when you gave your revised professional opinion that your view was that [KRM] didn't have the capability to do that?
FOSTER, PROF: Yes.
...
FOSTER, PROF: Well, I consider that higher level strategic decisions there – there is now indication of a lack of capacity with respect to higher level strategic financial decisions of significant import, but not with respect to what might be termed day-to-day financial management.
(T:111112; 14.09.17)
70 The Tribunal's view is that bar for Professor Foster's conclusion that there was no need for an administrator because KRM could be 'assisted' to make decisions with the assistance of family members, Professor Foster would have concluded that he lacked the capability to make reasonable judgments in respect of matters relating to his estate, certainly to the extent of any complex or higher level decisions. Such a conclusion is completely consistent with the findings of the neuropsychological assessment set out in [55] and [56] above. In the Tribunal's view, Professor Foster offering a revised opinion is not an example of him applying the wrong test, but rather is an example of him offering the only view which could have been provided if he had not delved into the area of confusing the question of capacity with the question of need.
71 Therefore the Tribunal's view is that the oral testimony Professor Foster gave is consistent with the neuropsychological cognitive assessment findings set out in his report. It is indeed concerning that Professor Foster was not provided with full factual disclosure in order to assist him in preparing a report that the parties knew the Tribunal would be relying on in order to make an important finding as to whether the statutory presumption of capability could be displaced. It is particularly concerning in light of BKM's attendance at the office of Professor Foster, that none of that information was forthcoming despite being within the knowledge of BKM.
72 In summary, in the Tribunal's view, the capacity evidence is sufficient to displace the presumption of capability in favour of KRM in respect to managing his estate and financial matters other than in respect to low level decisionmaking. The medical evidence was consistent in this regard comprising of Professor Foster's revised opinion and Dr Harper's opinion together with the concerns raised by the psychogeritrician Dr Ford. Indeed it is also consistent with the application lodged by KRM's son CM and the evidence of both BKM and GM in the proceeding referred to at [3] and [49] above.
73 However, the Tribunal does not hold the view that the capacity evidence in respect of personal decisionmaking is sufficient to displace the presumption of capability. Although Dr Harper certainly had concerns as to KRM's capability in this regard, as noted previously, the Tribunal's view is that those assessments required a more comprehensive follow-up which was undertaken by Professor Foster. Professor Foster did not believe that there was sufficient factual information to support a finding that KRM was not capable of making decisions in those personal decisionmaking areas in his own best interests. Thus, in the Tribunal's view, the presumption of capability remains in favour of KRM to make those decisions himself.
Administration question of need and who should be appointed
74 It is proposed by KRM's sons that if the Tribunal is to find that an administrator is needed for KRM that the Tribunal ought to appoint one or more of them in that role. KRM's views coincide with that position. However, the Tribunal does not believe that the sons ought to be appointed as their father's administrator either singularly or jointly. In this matter, in the Tribunal's view, the evidence speaks for itself against the sons' appointment. Herewith set out below are the decisions which KRM's sons made or matters of which they were aware, which they say, are in their father's best interests:
a) The proceeds of the sale of the Wyening farm property (absent approximately $8,000) was transferred by BKM from his parents' joint bank account to his own account on 13 April 2017. KRM and GYM were hospitalised at this time and unaware of the transfer. Shortly thereafter it was deposited into an account held jointly by the three sons and then prior to the hearing resuming on 9 October 2017 the funds were equally split into three accounts, one in each of the sons' individual names.
b) Despite receiving a third share of the farm proceeds, BKM also received a commercial rate commission fee of $50,000 from his parents for his role in selling the farm. This commission fee was not deducted from the proceeds of the sale itself.
c) Also on 13 April 2017, BKM transferred $244,314 from his parents' joint account into his own personal account. KRM and GYM were hospitalised at this time and unaware of the transfer. The oral evidence of all the sons was that they were all aware of this transfer and agreed to it. The full amount has never been returned.
d) On 15 May 2017, the sons travelled together with KRM and GYM to solicitors' offices to sign documentation effecting the gifting of their home in Mullaloo to the three sons as tenants in common. At the time that the sons participated in this transaction and accepted the gift they were aware that the Tribunal had found that GYM lacked the legal capacity required in order to execute the relevant documentation. Yet they proceeded with the transaction in any event. In addition, they witnessed and were part of KRM executing a will. Each of the sons admitted in oral testimony that they did not make the solicitor, Mr Linfoot, aware that there had been findings in respect to GYM by the Tribunal as to lack of capacity and that she had an independent guardian appointed. They also did not make Mr Linfoot aware that there were ongoing proceedings in which the capacity of KRM was also in question and which was yet to be decided.
e) Each of the sons was aware that KRM and GYM were not eligible for a Centrelink pension and thus had no source of income.
f) Each of the sons knew or ought to have known that KRM and GYM would be required by the Australian Taxation Office to pay capital gains tax in respect of the sale of the farm. The tax payable was $33,014 and was paid by the KRM and his wife on 18 August 2017. Despite receiving the proceeds of that sale and in respect of BKM, receiving an additional commission, none of the sons contributed to the payment of the capital gains tax.
75 What is very clear to the Tribunal is that a substantial estate has diminished to a fraction of its size within a period of one month, that is, during 13 April 2017 to 15 May 2017. This is in circumstances where it is clear that the remaining limited funds will soon extinguish and where none of the sons have made any financial contribution to their parents' welfare. Despite the sons asserting that they had their parents' best interests at heart and would provide financial support to them, the Tribunal notes the following further facts:
a) During the 13 week convalescence period of KRM and GYM at CM's home, which occurred after the ‘gifting' of a significant amount of money from the proceeds of the sale of their farm, KRM and GYM paid approximately $3,000 to CM in rent as well as funding the purchase of groceries.b) Despite ‘gifting' the proceeds from the Wyening farm to their sons and also transferring their home to their sons BKM and GM saw fit to use their parents' funds to pay their own legal fees (T:182184; 09.10.17). There has been no reimbursement of those funds to KRM and GYM.
c) All expenses associated with renovating and repairing the Mullaloo property, despite it now being owned by the three sons, were paid exclusively by KRM and GYM. There was no financial contribution in respect to any of the renovations by the sons themselves, being the legal owners of the property.
d) When BKM transferred $244,314 from the joint bank account of KRM and GYM into his own account, it took three months to return the money and when it was returned an amount of $44,314 was missing. That amount has never been returned to GYM to KRM and GYM.
e) Although there is approximately $40,000 remaining in the joint account of KRM and GYM it is understood by the Tribunal that further legal costs will be deducted from that amount which will not be insubstantial, in addition to daytoday living expenses. It is clear to the Tribunal in the circumstances that the remaining funds will be exhausted in a relatively short period of time. Yet none of the sons have taken any steps to contribute financially in any way whatsoever to avoid those funds extinguishing.
f) There is a significant number of very large cash withdrawals being made from ATMs that began following the discharge from hospital of KRM and GYM. It appears that CM was present during each of those withdrawals whilst his parents convalesced in his home. BKM was also aware of these withdrawals. There was no adequate explanation to the Tribunal as to why those cash amounts were not accounted for in the statement of assets and liabilities for KRM. None of the sons has taken any steps despite their knowledge of the withdrawals to restrict or discourage their father from making those withdrawals. The sons could not adequately explain what has become of the cash amounts.
76 There was only one reason put forward as to why the sons' actions were in KRM's best interests. The reason put forward was that they needed to safeguard their parents' estate from possible exploitation by the grandchildren (T:193-194; 204; 233; 274-275; 09.10.17). The Tribunal simply does not accept this as a credible explanation for the actions of the sons. There is simply no evidence to support an allegation of financial exploitation instigated by the grandchildren. In particular the Tribunal notes the following:
• BM made an application to the Tribunal on 10 April 2017 because of concerns that she had including in relation to potential financial exploitation of her grandmother who at that time had been diagnosed with dementia. BM did not seek for a family member to be appointed but rather sought urgent orders from the Tribunal that the Public Trustee be appointed such that the estate of her grandmother could be managed independently in her grandmother's best interests.
• Although there have been bare allegations made of money going missing from the Mullaloo property prior to the application made by BM, in addition to jewellery, those allegations were never investigated by the police, and no charges were ever laid. It was conceded by BKM in testimony that anybody could have taken those items or in fact they could have been gifted by his parents (T:208; 213-214: 09.10.17). BKM also conceded in crossexamination that the police were disinterested in investigating the allegations and noted that it could have been BKM himself who stole the missing items (T:213; 09.10.17). BKM admitted that he had no basis on which to make the allegation (T:214; 09.10.17).
• Although the sons alleged that it was possible that their parents had executed an enduring power of attorney they were clearly aware at all relevant times that no such enduring power of attorney existed (pages 9 and 183 of Exhibit KM1; T:234; 09.10.17).
• The only other person other than KRM and GYM who had access to their joint accounts was BKM (T:193 and 195; 213; 09.10.17). In addition it was only the sons who ever attended the bank, usually BKM, when transactions were made (T:185 and 228; 09.10.17 ). There was no evidence before the Tribunal to suggest that BM or other grandchildren attended a banking institution with either KRM or GYM.
• The only questionable transactions undertaken which could be perceived as financial exploitation were those facilitated by the sons. There is no evidence of any potential or actual exploitation by anybody else. The questionable transactions commenced when the sons became aware that the Tribunal may appoint an independent administrator and thus the sons would potentially no longer be able to access their parents' funds and estate.
• Although BM admitted to having concerns in respect of KRM and GYM's finances it is explained, in the Tribunal's view, by her concerns of possible exploitation. This is entirely consistent with the actions she has taken including making an application seeking an independent administrator to be appointed in order to protect her grandmother's estate.
77 Based on the uncontested evidence as presented it seems a nonsensical position for the sons to put, that 'we took all of our parents' estate to prevent their grandchildren from similarly doing so' (T:218; 09.10.17). Indeed, the sons having taken almost the entirety of the estate, have certainly prevented any potential exploitation of their parents by other parties. However, in doing so they themselves clearly exploited their father. Yet it is submitted by CM's counsel that they have acted in their parents' best interests. It would be inconceivable to the Tribunal to reach such a conclusion on the evidence. The sons have simply taken their parents estate and given nothing back as far as the financial perspective is concerned.
78 The sons had a number of opportunities to act in their parents' best interests and yet took no such opportunity. They could have given their parents a legal life estate in the Mullaloo property they chose not to. On BKM's evidence he did not want to spend the money associated with giving them such an entitlement (T:222; 09.10.17). They could have contributed their own funds to their parents, but they chose not to. CM could have offered his home to his parents after their hospitalisation without receiving remuneration, but he did not do so. BKM and GM could have paid their own legal expenses but they instead used their parents' funds. The sons could have paid for the renovations of a home which they legally owned, but they did not. They used their parents' funds. The sons could have paid the capital gains tax associated with the sale of their parents farm given that they were gifted the proceeds, but they did not. BKM could have received a commission in respect of the sale of the farm significantly less than a commercial rate, but he did not. The sons could have dissuaded their father from making large unaccounted for cash withdrawals, but they did not. They could have refused the gifting of their parents' home in circumstances where they knew that their mother lacked capacity and where there were questions in respect of their father's capacity, but they did not. The sons could have fully informed Mr Linfoot of the Tribunal proceedings prior to asking him to prepare the formal documentation required for their parents to gift their home, yet they concealed that information. BKM could have transferred back to his parents the full amount of $244,000 which he took from them, but he has not. Taking any of those actions unquestionably would have been in KRM's best interests and ought to have taken, yet they were not.
79 It is therefore without question that KRM's sons cannot be considered as administrators. Indeed, it will be necessary for the administrator to investigate and attempt to recover some of the assets of KRM in circumstances where he did not have the ability to understand and consent. Such investigations and recovery action could clearly not be undertaken by those who have gained from those very transactions. Therefore any appointment must be independent, being the Public Trustee.
80 Although there were submissions made to the effect that there was no need for the appointment of an administrator because KRM's funds had so severely diminished, the Tribunal rejects that submission entirely. There is clearly a need for the appointment of a plenary administrator. There are very significant complex investigations and legal actions which need to be undertaken in order to attempt to recover KRM's estate. To simply sit back and do nothing in the context of the facts as presented would not be in his best interests. This is a clear example where directions need to be made to the Public Trustee to investigate a number of transactions that have occurred during the early to midpart of 2017 in order to consider taking proceedings to recover and set aside those transactions. The need therefore in the view of the Tribunal is clear and cannot be met in any less restrictive way.
81 Nor can a limited order be made in the circumstances of the present case. It may be that if funds are recovered through legal recourse, that the Public Trustee will arrange an allowance for KRM to manage himself. However, that will be a matter for the Public Trustee to arrange and will be dictated by whether there are sufficient funds recovered which KRM can partially manage by way of a regular allowance. However, that flexibility can and often is available through the vehicle of a plenary administration order. A limited order is not necessary to afford that flexibility. In any event, KRM has no source of income or sufficient funds which would allow a limited order to be considered by the Tribunal at this point in time.
Review period
82 KRM has a progressive mental disability. It would therefore not be unusual for a review to take place in five years' time given that his condition will deteriorate over time. However, the Tribunal's view is that it ought to reconvene and review matters particularly once any investigations and legal actions have concluded. However, the Tribunal does not anticipate that that will be achieved within a short period of time and therefore is of the view that a three year review period is appropriate in all of the circumstances.
Capacity to vote
83 When the Tribunal appoints either a guardian and/or administrator for a person, it must consider pursuant to s 111 of the GA Act whether the person is capable of making judgments for the purpose of complying with the Electoral Act 1907 (WA). We have considered this question but find that the medical evidence on this point is inconsistent and unable to be relied upon in order to make a declaration as to lack of capability (pages 42 and 56 of Exhibit KM1). No such declaration will therefore be made in respect of KRM.
Orders
The Tribunal therefore makes the following orders:
The Tribunal declares that KRM:
(a) is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all of his estate; and
(b) is in need of an administrator of his estate.
and the Tribunal orders that:
1. The order made on 9 October 2017 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
2. The Public Trustee of 553 Hay Street, Perth, Western Australia is authorised to exercise the functions of a plenary administrator with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3. Pursuant to s 71(4) of the Guardianship and Administration Act 1990 (WA) the Public Trustee is directed as follows:
(a) to take immediate action to:
(i) lodge a caveat in respect of the residential property at Mullaloo in the State of Western Australia; and
(ii) consider and as necessary take action to obtain an injunction in respect of each of BKM, CM and GM to restrain them from dealing with funds associated with the sale of a farming property at Wyening in the amount of $1,615,853.
(b) investigate and if appropriate take action to recover in respect of the following transactions:
(i) the transfer of the amount of $1,606,523 from the represented person's joint bank account which has been divided into three separate bank accounts belonging to BKM, CM and GM;
(ii) the transfer of the residential property of the represented person at Mullaloo in the State of Western Australia to his three sons as tenants in common;
(iii) the transfer of an amount of $244,314 of which the amount of $44,314 has not been returned to the represented person such transfer having been undertaken by BKM on 13 April 2017;
(iv) the payment of legal fees made to solicitors representing the represented person's sons BKM and GM;
(v) legal fees paid to Mr Ashley Wilson during a period that he was representing both the represented person and his wife and was in an apparent position of conflict; and
(vi) all other questionable transactions as the Public Trustee sees fit.
- (c) investigate the circumstances in which the represented person was deemed to be capable to execute a will on 15 May 2017 and take any necessary appropriate action; and
(d) consider at the conclusion of the investigations referred to in paragraphs (b) above whether the circumstances of the relevant transactions ought to be referred to the police for further investigation and possible prosecution and to make any such referral if seen as appropriate.
5. The administration order is to be reviewed by 20 October 2020.
- I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS C WALLACE, SENIOR MEMBER
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