LK and EB - [2013] WASAT 70

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: LK and EB [2013] WASAT 70

MEMBER: MS S GILLETT (MEMBER)

HEARD: 28 SEPTEMBER AND 20 NOVEMBER 2012

DELIVERED : 21 DECEMBER 2012

PUBLISHED : 14 MAY 2013

FILE NO/S: GAA 2691 of 2012
GAA 2692 of 2012
GAA 4101 of 2012

BETWEEN: LK
First Applicant
JA
Second Applicant
AND
EB
Represented Person

Catchwords:

Guardianship and administration - Enduring power of guardianship - Enduring power of attorney - Whether valid - Capacity of donor - Conflict between children of represented person - Need for guardianship order - Terms of enduring power of guardianship varied - Public Advocate to be involved in limited way

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 43, s 43(1)(b)(ii), s 54, s 64, s 64(1a), s 85, s 97(1)(b)(iii), s 110E, s 110H, s 110H(c), s 110N
Guardianship and Administration Regulations 2005 (WA), Sch 1

Result:

Application for administration dismissed
Public Advocate appointed limited guardian
Terms of enduring power of guardianship varied during period that Public Advocate is appointed limited guardian to determine matters relating to contact

Summary of Tribunal's decision:

Two of the children of an elderly woman, EB, sought guardianship and administration orders and challenged the validity of enduring powers of attorney and guardianship by which EB had appointed her two other children. The applicants questioned whether EB had been competent to execute the instruments, whether the enduring power of guardianship met the formal requirements and, further, whether these instruments were operating in EB's best interests. The Tribunal was satisfied that EB understood the nature and effect of the documents at the time of execution and further, that the enduring power of guardianship was substantially in the form prescribed by the Guardianship and Administration Regulations 2005 (WA) and that the formal requirements had been met.
The Tribunal found that the subsequent striking out of parts of the enduring power of guardianship which were initialled by EB's doctor did not invalidate the instrument as this did not change the way the enduring power of guardianship was to operate. The Tribunal dismissed the application for an administration order, having found there to be no need for the order, as EB's financial affairs were being managed through the operation of the enduring power of attorney.
Given the significant mistrust and estrangement within the family, the Tribunal decided that EB was in need of a limited guardianship order to ensure disputes concerning contact were dealt with to limit the likelihood of further conflict within the family and the resultant distress caused to EB. The Public Advocate was appointed with this limited function and the terms of the enduring power of guardianship varied to suspend the authority of the joint enduring guardians to decide matters relating to contact during any period that the Public Advocate is appointed with this function.

Category: B

Representation:

Counsel:

First Applicant              :     Self-represented
Second Applicant          :     Self-represented
Represented Person       :     Self-represented

Solicitors:

First Applicant              :     N/A
Second Applicant          :     N/A
Represented Person       :     N/A

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

Re C [2012] WASAT 50

REASONS FOR DECISION OF THE TRIBUNAL:

Background

Oral reasons in this matter were delivered on 21 December 2012. These written reasons are a revised and edited version of the reasons delivered orally.
The following initials identify the main parties in these proceedings:
•EB (represented person), the person for whom the applications were made;
•LK and JA, the daughters who filed the applications;
•JK, the daughter appointed as sole attorney under the enduring power of attorney (EPA) and appointed as joint enduring guardian under the enduring power of guardianship (EPG);
•BB, the son appointed as joint enduring guardian under the EPG;
•BW, the granddaughter of the represented person; and
•SB, the social worker at the transitional care facility.
At the conclusion of the second hearing on 20 November 2012, orders were made appointing the Public Advocate as limited guardian for decisions concerning contact with the represented person and varying the EPG, such that the authority of the joint enduring guardians to make such decisions was suspended during the period of the Public Advocate's appointment. The application for the appointment of an administrator was dismissed.

Applications

Three applications were made in respect to EB. Applications for guardianship and administration orders were lodged by LK and JA on 27 July 2012. They made a further application on 15 November 2012, after the first hearing on 28 September 2012, seeking the revocation of an EPG, executed by EB on 13 July 2011 by which she appointed JK and BB her joint enduring guardians.

The legislation

The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act) and the Guardianship and Administration Regulations 2005 (WA) (GA Regulations).
In deciding whether a guardian and an administrator should be appointed for a person, there are a number of steps that the Tribunal is required to consider under the GA Act. It is necessary to firstly consider the person's capacity and her ability to make reasonable judgments about decisions that concern her.
The GA Act provides that the starting point is that there is a presumption that each person is able to manage their own affairs, to look after their own health and safety, and to make reasonable judgments about personal and financial matters (s 4(2)(b) of the GA Act). If the Tribunal forms the view that EB is a person for whom guardianship and administration orders may be made, consideration must then be given to whether there is a need for orders to be made.
The GA Act states that if the needs of the person can be met in a manner that is less restrictive of the person's freedom of decision and action, then orders should not be made (s 4(2)(c) of the GA Act). This step requires consideration of whether the existing EPA and EPG offer a less restrictive means whereby EB's needs can be met.
If the Tribunal decides to make a guardianship or an administration order, consideration must be given to the scope of the orders and to who should be appointed. The GA Act says that in respect to guardianship orders, a plenary order should not be made if a limited order is sufficient to meet the needs of the person (s 4(2)(d) of the GA Act) and, further, that if an order is made appointing a limited guardian or an administrator, it must be framed in such a way as to impose the least restrictions possible on the represented person (s 4(2)(e) of the GA Act).
In considering the applications, the Tribunal's primary concern must be what is in EB's best interests (s 4(2)(a) of the GA Act) and the Tribunal must ascertain to the extent that it can, EB's views and wishes in respect to the applications made.

Background to the applications

EB is 83 years of age and diagnosed with probable dementia of the Alzheimer's type. Since her husband died in December 2007 and up until her admission to hospital with a fractured hip in June 2012, EB resided in her own home. Informal support was provided by one of her daughters, JK, but there were no formal support services in place.
On 30 June 2011, EB executed an EPA appointing her daughter, JK, her sole attorney and appointing her son, BB, her sole substitute attorney. The EPA came into effect immediately. An EPG was executed by EB on 13 July 2011 appointing JK and BB to be her joint enduring guardians.
LK and JA lodged the applications for guardianship and administration on 27 July 2012 after being informed of the existence of the EPA and EPG by hospital staff following EB's admission to hospital and in the context of there being poor communication and mistrust between them and their siblings, JK and BB.

The applications

The applications filed by the applicants set out their concerns as to whether their mother had the requisite capacity to execute the existing EPA and EPG on 30 June and 13 July 2011 respectively, and their view that the EPG is not validly executed. The applicants submit that the joint enduring guardians failed to properly exercise their power by restricting access to information about EB's medical condition and by further restricting their involvement in other decisions concerning EB. The applicants do not allege financial abuse or mismanagement of EB's affairs and do not say that the joint enduring guardians have made any inappropriate medical or lifestyle decisions, but they question the suitability of JK as attorney and of JK and BB as joint enduring guardians. JK's suitability is questioned on the basis that she has a longstanding psychiatric diagnosis of bipolar disorder which has required hospitalisation in the past, psychiatric care and medication, and support from her family over many years.
The applicants propose that they be appointed jointly as guardians or, alternatively, that either one of the applicants be appointed jointly with BB, or that the Public Advocate be appointed for a short period, with directions. In the event that the EPG is accepted as valid, the applicants propose that the Tribunal direct the enduring guardians as to the exercise of their powers to authorise release of information from health professionals, to ensure the applicants' names are listed as next of kin wherever EB resides and to enable contact with EB.
In respect to the application for administration, the applicants propose the appointment of LK as sole administrator or, alternatively, the appointment of the Public Trustee or the appointment of either applicant jointly with BB.

Medical and allied health reports

Dr V, the geriatrician who oversaw EB's care during her admission to hospital, from mid June to mid July 2012, completed a doctor's guide dated 7 September 2012. He states EB has 'probable dementia of Alzheimer's type' and notes that EB was admitted to hospital after fracturing her hip and with delirium and agitation. Dr V's opinion is that EB lacks capacity to make reasonable decisions in respect to her personal health care, her living situation and her financial affairs. He notes that EB has very poor short‑term memory, and that she is not aware of her finances but is happy with her daughter managing these. Dr V refers to a Mini Mental State Examination (MMSE) with a score of 13/30 (no date shown), and makes note of an earlier score of 19/30 in 2011.
In the guide, Dr V further states that copies of the EPG and EPA were obtained due to the tensions that existed in the family, and he made reference to the family members who held the EPG refusing to let others in the family know about 'medical/rehab and placement processes'. In a letter dated 22 August 2012 addressed to a solicitor acting for the applicants, Dr V refers to family issues being 'somewhat complex', and alludes to the joint enduring guardians having directed that medical information concerning EB not be released to their siblings.
The Aged Care Client Record, completed by the hospital social worker when EB was still an inpatient in late June 2012, notes that EB is 'periodically confused to person, place and time on the ward' and that she had demonstrated increased short-term memory loss over the previous year according to her daughter, JK. Reference is made to EB's MMSE score of 13/30 on 21 June 2012. Approval was granted for high level respite and residential care, transitional care and an Extended Aged Care at Home (EACH) package in the home.
Written reports from SB, the social worker at the transitional care facility where EB was accommodated from 19 June 2012, prior to the initial application being lodged until shortly before the second hearing on 20 November 2012, have also been provided. Despite EB presenting well in day‑to‑day conversation, SB refers to her experiencing recurrent issues related to wandering at night, disorientation to time, at risk behaviours and having reduced insight into her care needs during her stay at the transitional care placement.
In her report of 18 September 2012, SB notes that JK had come to the decision that EB's discharge home, even with 24/7 family support and an EACH package, would not be sustainable or safe and, consequently, had commenced viewing high care residential care facilities. SB supports the need for EB to have a substitute decision-maker, given her cognitive impairment, but states the current arrangements under the EPA and EPG are functioning well in respect to EB's day‑to‑day care and future accommodation decisions, and ensuring her bills are paid. SB notes the conflict between family members and, in particular, the limited contact between the applicants and the joint enduring guardians. SB submits that there is a need for all parties be kept informed of any significant changes in EB's situation or health and that, if this cannot be facilitated under the existing EPG, the appointment of an independent guardian may be appropriate.
The applicants submit a letter from Dr K, EB's treating general practitioner dated 8 October 2012, which was written in response to an enquiry made on their behalf by their solicitor. Dr K says that he has been EB's doctor since January 1997 and that, from February 2008 onwards, EB was generally brought to the surgery by her daughter, JK, and that, until the last few visits, he saw EB without her daughter being present in the consulting room. In respect to EB's capacity to make informed decisions concerning her own health care, Dr K opined that EB was capable when he saw her on 17 May 2012 and prior to this date. In respect to JK's ability to make decisions in her mother's best interests, Dr K commented that JK acted with appropriate concern, that she regularly accompanied EB to the practice and that she only came into the consulting room when requested to do so.
Dr K also refers to EB attending his practice on 20 July 2011 with the EPG document. He states that he could not recall whether the strike‑outs on the EPG were already in place or whether they were struck out on 20 July 2011; however, he confirms that EB initialled the document in his presence in the places which were struck out, and that he also initialled the document and used his practice stamp next to or over each of his initials.

The Public Advocate

The applications were referred by the Tribunal to the Public Advocate, pursuant to s 97(1)(b)(iii) of the GA Act. The role of the Public Advocate in these proceedings is to investigate the applications, report to the Tribunal and to advance the best interests of the represented person.
The Public Advocate's representative submitted a written report which was tabled at the first hearing, and further reports filed in response to submissions and allegations made by the applicants. EB was interviewed in the transitional care facility on her own and said that she was very happy with her daughter, JK, 'looking after things for me'. She said further that, whilst she loved all of her children, she was aware of the conflict between JK and her other two daughters, LK and JA. In relation to the apparent disconnection between some of her children, EB stated:
I do want my children to talk things over and discuss things … but I am not sure it will ever happen … I just wish they wouldn't fight … I just wish we could all just be a family … but I don't think there's much prospect of that happening.
In giving a view of EB's best interests at both hearings, the Public Advocate's representative submits that the EPA and EPG are valid instruments operating in EB's best interests and in accordance with her wishes, and represent a less restrictive alternative to the making of orders. The Public Advocate's representative, in the course of the investigation, also interviewed the Justice of the Peace who witnessed EB's signing of the EPA. The witness recalled discussing privately with EB her understanding of the document being signed, albeit that he was aware that he had no legal obligation to do so, and he satisfied himself that EB was competent and understood what she was signing.
In view of the concerns raised by the applicants about JK's mental health and her suitability to act on EB's behalf, the Public Advocate's representative also spoke with JK's treating psychiatrist, Dr P, who is reported to have said that JK's mood disorder has been stable for four years and that she had no concerns as to JK's ability to manage her mother’s affairs, despite the stress associated with the applications made to the Tribunal.

The first hearing

The initial hearing on 28 September 2012 was attended by EB, her four adult children, her granddaughter, BW, the social worker from the transitional care facility, SB, and the Public Advocate's representative. The applicants identified their primary concerns, being their access to information concerning EB, and their siblings' unwillingness to both inform and consult them in respect to decisions being made on their mother's behalf. In the absence of such consultation and communication, the applicants submit that the EPG is not operating in EB's best interests.
In respect to the operation of the EPA, the applicants express their concern that they were not made aware or informed of decisions which were being made in respect to their mother's financial affairs.
The applicants further question EB's capacity to validly execute the EPA and the EPG in mid 2011. LK submits that when her father was terminally ill in late 2007, her mother had demonstrated some confusion and had been unable to make arrangements to implement the decision for her husband to return home from hospital, and had asked family members to make the necessary arrangements. LK said that, other than this incident, she had no further evidence of EB's diminished capacity at the time, or prior to the time, the EPA and the EPG were executed. LK refers to the impaired MMSE score in 2011 (in Dr V's guide). However, she is not aware of the date the test was administered.
At the first hearing, JK explained that the EPA had only been used by her as attorney, after EB was admitted to hospital in June 2012. Prior to this time, whilst JK said that she would drive her mother to the bank, EB undertook all of the banking herself. Since June 2012, JK says that she has been making withdrawals from her mother's bank account, paying all of her accounts and maintaining records and receipts of all transactions. She says that the rates and taxes on the house have been paid rather than deferred.
LK says, on behalf of the applicants, that she is happy with the financial arrangements so long as a clear record is kept by the attorney.
In respect to the applicants' concerns that they have input into the decision-making as to where EB will be residing in the future, the social worker at the transitional care facility, SB, undertook to arrange a family meeting in order to facilitate a discussion as to the options available. This arrangement was agreed to by all of EB's children.
In respect to the allegation that the joint enduring guardians had withheld information concerning their mother's medical conditions from their siblings, and had instructed health professionals that such information was not to be disclosed, both JK and BB strongly deny that any such instruction had been given. They further deny that they had withheld or failed to disclose information concerning their mother's health to their siblings.
EB said in the hearing that she would be happy for all of her children to have access to medical information about her. JK and BB agreed to provide their siblings with a statement confirming their entitlement to medical information concerning their mother. The first hearing was adjourned to allow time for the family meeting to proceed concerning future care planning for EB and for the joint enduring guardians to provide a statement to their siblings in respect to their access to medical information concerning EB.

The second hearing

Prior to the second hearing on 20 November 2012, JK and BB submitted a document to the Tribunal addressed '[t]o whom it may concern', and signed as guardians for EB. The document, as provided to their siblings, states:
Please be advised that our sisters LK and JA are also entitled to be informed on matters pertaining to the health and welfare of our mother.
A further application under s 110N of the GA Act seeking revocation of the EPG was lodged by the applicants on 15 November 2012. Further lengthy submissions were filed with the Tribunal on 19 November 2012 by LK disputing the validity of the EPG as being only partially completed and witnessed on 13 July 2011 ‑ and completed subsequently in the presence of Dr K only on 20 July 2011 ‑ alleging that the joint enduring guardians are failing to act in the best interests of EB, alleging the use of the EPG to 'effectively construct an estrangement' between the applicants and EB, and disputing various elements of the Public Advocate's representative's report to the Tribunal. Despite LK's statement at the end of the first hearing that she was happy with the operation of the EPA given that clear records were being kept, the applicants now allege that the EPA is not operating in EB's best interests as payments are being made in cash.
The Public Advocate's representative filed detailed submissions in response to the many points raised in LK's submission.
SB also filed a further report, prior to the second hearing, which confirmed a family meeting was held on 16 October 2012, attended by EB's four children and facilitated by SB and the facility manager. The report from SB notes that all parties were in agreement that residential care was the appropriate option to meet EB's ongoing care needs; however, subsequent to the family meeting, it became evident that divergent views existed as to which care facility was most appropriate to meet these needs. SB noted the enduring guardians' decision to accept a permanent placement for EB and that the applicants and BW were informed of this decision.
SB states that the letter provided by the enduring guardians outlining their consent for information to be released to their siblings is sufficient for the transitional care facility to provide information to them. The applicants dispute the utility of the letter and submit that it is inadequate to enable information to be released by other health professionals, including EB's previous general practitioner.
SB identifies additional issues which have arisen since the first hearing; in particular, that the transitional care facility had been instructed that BW was not permitted to take EB out of the facility, other than if she was accompanied by either LK or JA. SB submits that EB is aware of the conflicts within her family and that it appears the conflict is impacting on her stress level; with EB having experienced weight loss following the first hearing. SB submits that the appointment of an independent guardian may be beneficial to reduce the impact of the family conflict on EB and to ensure that appropriate communication is provided to all parties.
In the second hearing, the applicants submit that there is a need for a roster to provide for EB's contact with all family members. All family members acknowledge that EB wishes to have contact with all of her children; however, the parties also agree that as EB remains aware of the tensions that exist between JK and her other two daughters, it is preferable for contact with her daughters to occur at different times.
BW challenges the limitations on her contact with her grandmother away from the transitional care facility. JK says that this decision was made following receipt of information from the care facility, and from EB herself, expressing concern that her granddaughter was aggressive. BW disputes that the care facility had raised any concerns about her contact with her grandmother.
The applicants express further concerns as to the accommodation decision made by EB's enduring guardians and submit that an alternate facility could be afforded where EB would be provided a single room with extra services. The applicants express concern that the decision by the enduring guardians was influenced predominantly by the proximity of the chosen facility to JK's home and to avoid the need to sell EB's home. The enduring guardians confirm that their decision was influenced by the proximity of the facility to JK's home as this enabled JK to maintain her very regular contact with EB. In addition, the enduring guardians submit that it is in EB's best interests that she retain her home so that she is able to go back and spend time there on a daily basis. JK says these visits have occurred since EB's move to the facility.

The views and wishes of the represented person

In addition to being interviewed by the Public Advocate's representative, EB gave evidence at the hearing. At the first hearing, it was evident that EB was distressed. She stated, at one point, 'I've only got a few years to live and you're all carrying on like this'. EB's capacity to express her views and wishes in the hearing was limited by her cognitive impairment, her poor hearing, the tensions between family members and the unfamiliarity of the situation. The Public Advocate's representative, based on his private meeting with EB prior to the first hearing, submits that EB was clear that she wanted her daughter JK to be the person to act on her behalf if anyone else was to be making decisions for her. EB's close relationship and reliance on her daughter, JK, is not disputed by other family members.

The decision of the Tribunal

Whether EB is a person for whom a guardianship order and an administration order can be made

The Tribunal is required to make a finding about this in the context of the relevant provisions of the GA Act. Those provisions are s 43(1)(b)(ii) and s 64(1)(a), which are to be read subject to the presumption of capacity contained in s 4(2)(b) of the GA Act. Section 43 of the GA Act refers to guardianship. Before considering whether EB is in need of a guardian, the Tribunal must first be satisfied that she is either incapable of looking after her own health and safety and is unable to make reasonable judgments in respect to matters relating to her person, or that she is in need of oversight, care or control in the interests of her own health and safety, or for the protection of others.
It is common ground that EB has been diagnosed with a dementia, likely of the Alzheimer's type. Having regard to the reports from Dr V, the geriatrician who assessed EB in mid 2012, and from Dr K, EB's general practitioner for some 15 years, the Tribunal is satisfied that EB is now incapable of looking after her own health and safety, that she is unable to make reasonable judgments in respect to matters relating to her person and that she is in need of oversight and care.
Section 64 of the GA Act refers to administration. Before considering whether EB is in need of an administrator, the Tribunal must first be satisfied that she is unable, by reason of a mental disability, to make reasonable judgments in respect to matters relating to all or any part of her estate. 'Mental disability' is defined to include an intellectual disability, a psychiatric disability, an acquired brain injury and dementia (s 3 of the GA Act).
The Tribunal is further satisfied that EB is a person for whom an administration order could be made, as she has a diagnosis of dementia and she is no longer aware of her finances by reason of this mental disability. This is consistent with and informed by the medical evidence before the Tribunal and is not disputed by members of EB's family. All parties agree that EB is in need of oversight and care, and that all significant decisions, both financial and personal, need to be made on her behalf.

Whether there is a need for guardianship and administration orders

Since the applications were filed with the Tribunal, EB has moved from transitional care to permanent residential care, albeit that her children have conflicting views about the current accommodation. Given the conflicting views within her family as to the most suitable accommodation for her, a decision‑maker with these authorities is needed. Ongoing decisions are also required in respect to EB's medical treatment.
The issue as to the nature of contact that EB has with BW remains contentious. This issue is complicated by the fact that BW is estranged from her mother, JK, who is one of the joint enduring guardians. Whilst all family members agree - indeed, all parties agree - that it is in EB's best interests to have contact with all family members, conflicting views remain as to the nature of contact that EB has and, in particular, what contact EB has with family members outside the care facility. There is a need for this to be managed in EB's best interests.
The Tribunal is satisfied and it is common ground that there is an ongoing need for someone to act on EB's behalf to manage her financial affairs.
Whilst it is recognised that there is a need for decisions to be made on EB's behalf in respect to both personal and financial matters, consideration must be first given to whether less restrictive alternatives to the making of a guardianship and an administration order are available. This requires consideration of the following three questions:
1)whether EB was capable of validly executing the EPA and EPG at the relevant time;
2)whether the EPG is valid, given the manner in which it was executed; and
3)whether the EPA and EPG are operating in EB's best interests.

The capacity of EB at the time the EPA and EPG were executed

The professional medical evidence as to EB's capacity at the time the EPA and EPG were executed, on 30 June and 13 July 2011 respectively, is the evidence of Dr K, EB's longstanding general practitioner. Dr K's opinion, as set out in his letter of 8 October 2012, is that EB retained her capacity to make informed decisions about her health up to and including the time of his consultation with her on 17 May 2012.
The Public Advocate's representative interviewed the Justice of the Peace who witnessed the execution of the EPA, and it is submitted to the Tribunal that this witness satisfied himself that EB understood what she was signing. The applicants question whether EB had capacity to execute the instruments, and refer to Dr V's report of 7 September 2012 which notes a MMSE score of 19/30 in 2011. They also refer to EB having been unable to make arrangements in late 2007 when her husband was terminally ill.
Given the presumption of capacity set out in s 4 of the GA Act, the Tribunal is not satisfied, however, on all of the material before it, that there is sufficient evidence to displace the presumption of capacity of EB at the relevant time.

Whether the EPG is valid, given the manner in which it was executed

The applicants submit that the EPG dated 13 July 2011 was not validly executed as it was completed in the presence of different witnesses 'on at least two separate occasions'. The applicants refer to Dr V's letter dated 22 September 2012 in which reference is made to a conversation between Dr V and EB's general practitioner 'who had witnessed and signed the said document'. Further, the applicants refer to Dr K's statement in his letter dated 8 October 2012 that he was unable to recall whether the strike‑through on pages 2 to 6 of the EPG were done in his presence or not. In this letter, Dr K confirms that his initials appear on the form, that EB initialled the document in his presence and that this was done at each of the sections struck out.
The applicants, in their written submissions, refer to the failure of EB to make any election at clause (section) 3 or at clause (section) 4 of the EPG when it was signed on the first occasion and witnessed by the two pharmacists on 13 July 2011. The applicants argue that this 'important election' was made in the presence of only one witness – that is, Dr K ‑ and, consequently, the EPG is not valid.
The formal requirements for the execution of an EPG are set out in s 110E of the GA Act. Apart from the requirement that the document be substantially in the form prescribed, the other formal requirements relate to witnessing and acceptance.
In the matter of Re C [2012] WASAT 50, the Full Tribunal dealt with a number of questions regarding the formal requirements for execution of an EPG. In respect to the requirement that the instrument be substantially in the form prescribed, the Tribunal made the following observations at [43]:
The substance of an EPG is in its operative provisions. If the operative provisions are in the form, or substantially in the form, of the prescribed form, then the EPG will satisfy the requirements of s 110E(1)(a).
In light of this, it is necessary to consider the EPG executed by EB on 13 July 2011 in some detail. Schedule 1 of the Guardianship and Administration Regulations 2005 (WA) (GA Regulations) sets out the prescribed form of an EPG. The form contains a number of notes by way of explanation of its provisions and a number of alternative choices which can be made by the appointor.
See Annexure 1 for the form as it appears in the GA Regulations (save for the attestation section).
The Tribunal accepts that it is unclear whether sections 1(a), 2, 4(b), 5 and 6 were struck through by EB at the time the EPG was executed on 13 July 2011, or on 20 July 2011 when the EPG was initialled by EB and by Dr K. It is also accepted that if the striking out of any of the above clauses affect the operative provisions of the EPG, then such strike-out may result in a declaration that the EPG is invalid unless the strike-out occurred at the time the EPG was executed.

Section 1(a)

Section 1 of the form provides for the appointment of a sole enduring guardian or joint enduring guardians. The notes for section 1, as set out in the GA Regulations, advise an appointor to complete section 1(a) and cross out and initial section 1(b) if the appointor wants to appoint only one person as their enduring guardian. If the appointor wants to appoint two people as joint enduring guardians, then the notes advise to cross out and initial section 1(a) and complete section 1(b).
The Tribunal concludes that the completion of section 1(b), through the appointment of joint enduring guardians, provides the clear intent of the appointor, irrespective of the strike‑out of section 1(a). Thus, the strike‑out of section 1(a) does not materially alter EB's appointment of joint enduring guardians under section 1(b). Consequently, whether the strike‑out of section 1(a) was undertaken at the time the EPG was executed on 13 July 2011, or subsequently when this section was initialled by Dr K and EB on 20 July 2011, has no effect on the EPG's operative provisions.

Section 2

Section 2 of the form provides for the appointment of a substitute enduring guardian. The notes for section 2, as set out in the GA Regulations, similarly provide that if the appointor does not want to appoint a substitute enduring guardian, section 2 is to be crossed out and initialled. The Tribunal concludes that the action by an appointor to leave blank clause 2 has the same effect as striking out this section. The operative provisions of the EPG remain the same that no substitute enduring guardian is appointed.

Section 3

Section 3 of the form provides for instruction as to what is to occur on the death of a joint enduring guardian. It sets out the options either that the surviving joint enduring guardian is to act or the surviving joint enduring guardian is not to act. The notes for section 3, as set out in the GA Regulations, similarly advise for either section 3(a) or section 3(b) to be struck out if appointing two or more people to be joint enduring guardians. If neither section 3(a) nor section 3(b) is struck out, the questions then arise as to whether such an omission would cause the EPG to be invalid and, otherwise, what would occur on the death of a joint enduring guardian.
Section 110H of the GA Act provides that certain provisions of the Act apply to an enduring guardian and appointor as if they were a guardian and represented person respectively:
The following provisions apply (with the necessary changes) in relation to an enduring guardian and appointor as if they were a guardian and represented person respectively ‑
(a)sections 48 to 51;
(b)section 53(a);
(c)subject to the terms of the enduring power of guardianship, section 54 as if it were not subject to section 85;
(d)Part 5 Division 3 other than section 57(2).
Section 54 of the GA Act relevantly provides for what is to occur on the death of a joint guardian and states:
Subject to section 85, where joint guardians are in office, the surviving guardian or guardians may act on the death of any guardian.
Section 85 of the GA Act provides that the Tribunal must review a guardianship order on the death of a guardian. However, this provision does not apply to an EPG, as set out in s 110H(c) of the Act.
Having regard to the above provisions, the Tribunal is satisfied that the EPG, executed by EB, firstly would remain operable, irrespective of whether section 3(a) or section 3(b) were struck out and, secondly, that as the strike‑out of section 3(b) is consistent with the provisions set out in s 54 of the GA Act, there is no material change to the operation of the EPG by the striking out of section 3(b).

Section 4

Section 4 of the form provides for the functions of an enduring guardian. The notes for this section, as set out in the GA Regulations, advise section 4(b) to be struck out if the appointor does not want to limit the functions of the enduring guardian(s) and, if the appointor does want to limit the functions the enduring guardians can perform, the notes advise to cross out and initial section 4(a) and complete section 4(b). Section 4(a) provides the enduring guardians the authority to perform all functions of an enduring guardian, whereas section 4(b) authorises enduring guardians to perform only specified functions. It is the Tribunal's view that, in the absence of an appointor striking out particular functions under section 4(b), the authority of the enduring guardians to perform all functions remains operative. Consequently, the strike‑out of section 4(b), whenever this occurred, has no effect on the EPG's operative provisions.
Similarly, it appears that sections 5 and 6 of the EPG were left blank prior to being struck through. These sections provide, respectively, for the appointor to either limit the circumstances in which the enduring guardians may act, or direct the enduring guardians as to the performance of their functions. The Tribunal finds that the strike-out of these clauses does not alter the operative provisions of the EPG. In the execution of the EPG by EB, the formal requirements of an EPG as set out in s 110E of the GA Act are otherwise met.
The Tribunal is satisfied, therefore, that the EPG has been validly executed.

Whether the EPA and EPG are operating in EB's best interests

The Tribunal is satisfied that the EPA reflects EB's wishes for her daughter, JK, to manage her financial affairs. There is no persuasive evidence before the Tribunal that the EPA is not operating in EB's best interests. Therefore, there is no need for the appointment of an administrator because there is a less restrictive means by which EB's financial affairs are managed. The application for the appointment of an administrator of EB's estate is therefore dismissed.
The longstanding and entrenched divisions within EB's family are acknowledged and it is in this context that the question of whether the EPG is operating in EB's best interests is raised. However, the existence of conflict is not, in itself, sufficient reason to conclude that the EPG is not operating in EB's best interests.

In respect to the applicants' reasonable wish to have access to information from their mother's treating health professionals, a request for which EB herself indicated her support, the Tribunal is satisfied that the joint enduring guardians have addressed this concern through the provision of the letter to their siblings (see [36]). The Tribunal is therefore not satisfied that there is a need to intervene in the operation of the EPG by directing the enduring guardians to authorise release of information from health professionals as sought by the applicants.
Although the relationship between JK and the applicants remains fractured, the joint enduring guardians undertook to inform their siblings of any significant changes concerning their mother's health, with BB undertaking to communicate with the applicants. Decisions have now been made in respect to EB's residential care arrangements and, although conflicting views remain within EB's family as to whether her current accommodation provides optimally for her needs, the Tribunal is satisfied that the joint enduring guardians, in coming to a decision as to where EB is to live, have acted according to their opinion of EB's best interests.
The only area of decision-making that continues to be of concern is in respect to contact matters. The Tribunal concludes that the level of conflict within the family may be exacerbated if decisions about contact remain the responsibility of the existing joint enduring guardians. The Tribunal accepts that EB is being adversely affected by ongoing conflict and tensions within her family. All parties agree that EB would like to see all of her children. The joint enduring guardians, in the hearing, encouraged the applicants to have a greater level of contact with EB. Nevertheless, issues remain in relation to contact and the nature of contact that different family members have with EB.
On the evidence, the Tribunal is not satisfied that the opportunity for EB to have contact with all family members can be effectively managed at the present time through the operation of the existing EPG and finds that there is a need for an independent guardian to decide matters relating to contact.
Given the obligation on the Tribunal to consider the least restrictive alternative and in order not to otherwise interfere with EB's wishes in appointing JK and BB her joint enduring guardians, the Tribunal's decision is to vary the terms of the EPG and to appoint the Public Advocate, in a limited capacity, to manage contact with EB for a period of six months. There is agreement that it is in EB's best interests to have contact with all family members, and the areas of conflict are narrow. The Tribunal is satisfied, however, that it is in EB's best interests to have an independent guardian to determine contact arrangements, given EB's awareness of the conflict within her family and the potential distress caused to her by visits from her daughters (and granddaughter) overlapping.
Therefore, in respect to the application for orders under s 110N(1)(a) of the GA Act, which provides that the Tribunal may make an order revoking an EPG or revoking the appointment of one or some of the persons who are joint enduring guardians under an EPG in particular circumstances, or revoking or varying any of the terms of an EPG, the Tribunal makes the following orders.

Orders

1.The administration application is dismissed.
2.The terms of the enduring power of guardianship are varied such that the authority of the joint enduring guardians to decide what contact EB (the represented person) should have with others and the extent and nature of that contact is suspended during any period that the Public Advocate is appointed limited guardian with that function.
3.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia is appointed limited guardian of the represented person to determine what contact, if any, the represented person should have with others and the extent and nature of that contact.
4.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
5.This order is to be reviewed by 20 May 2013.

I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS S GILLETT, MEMBER

Annexure 1

Citations

LK and EB [2013] WASAT 70

Most Recent Citation

Cases Citing This Decision

1

HFT v HQK [2019] WASC 292

Cases Cited

1

Statutory Material Cited

2

Re: C [2012] WASAT 50

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