LP
[2020] WASAT 25
•4 MARCH 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: LP [2020] WASAT 25
MEMBER: JUDGE D PARRY, DEPUTY PRESIDENT
MS M CONNOR, MEMBER
DR H HANKEY, SENIOR SESSIONAL MEMBER
HEARD: 26 JUNE 2018, 12 DECEMBER 2018, 23 AND 24 JULY 2019 AND 5 FEBRUARY 2020
DELIVERED : 4 MARCH 2020
FILE NO/S: GAA 841 of 2018
MA
Applicant
AND
LP
Subject
Catchwords:
Guardianship and administration - Review by Full Tribunal of determination of single member to dismiss applications for guardianship and administration orders - Practice & procedure - Whether review by Full Tribunal of determination of single member falls with 'review' or 'original' jurisdiction of Tribunal - Burden of proof - Whether applicant bears legal burden of proof in guardianship and administration proceedings - Standard of proof - Whether Briginshaw principle applies in guardianship and administration proceedings - Whether presumption of capacity displaced - Whether 'mild cognitive impairment' is a 'mental disability' - Whether there is a need for a guardian or an administrator - Less restrictive alternative to administration order - Enduring Power of Attorney - Best interests of person in respect of whom application is made - Who should be appointed as administrator - Words & phrases: 'mental disability'
Legislation:
Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 4(2), s 4(3), s 4(3)(a), s 4(3)(b), s 4(3)(c), s 4(3)(d), s 4(4), s 4(6), s 4(7), s 17A(1), s 40, s 40(1), s 43, s 43(1), s 43(1)(b), s 43(1)(c), s 44, s 64, s 64(1), s 64(1)(a), s 64(1)(b), s 68, s 68(1)(d), s 68(3)(b), s 68(3)(c), s 84, s 85, s 86, s 87, s 90(2), s 104, s 108, s 108(1), s 108(1a), s 109(1)(c)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), Div 57, s 421, s 450(2)
State Administrative Tribunal Act 2004 (WA), s 3(1) ('decision', 'decisionmaker', 'Tribunal'), s 9(b), s 13, s 14, s 15(1), s 17(1), s 20(1), s 21(1), s 24, s 30, s 32(1), s 32(4), s 32(7), s 32(7)(a), s 34(1), s 35(1)
Result:
Application for guardianship order dismissed
Plenary administration order made appointing Public Trustee as plenary administrator of represented person's estate
Category: B
Representation:
Counsel:
| Applicant | : | Ms D Taylor |
| Subject | : | Mr A Pass (until 8 October 2018) / Mr V Lo (from 29 November 2018) |
Solicitors:
| Applicant | : | Tan & Tan Lawyers |
| Subject | : | Frank Unmack & Cullen (until 8 October 2018) / VL Legal (from 29 November 2018) |
Case(s) referred to in decision(s):
A and J [2006] WASAT 287; (2006) 44 SR (WA) 351
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
FY [2019] WASAT 118; (2019) 98 SR (WA) 190
GC and PC [2014] WASAT 10; (2014) 85 SR (WA) 23
Lefroy v Minister for Lands [2019] WASC 83; (2019) 235 LGERA 175
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37; (2013) 84 SR (WA) 158
Re G [2017] WASAT 108; (2017) 92 SR (WA) 279
Re GC [2017] WASAT 80
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611
S v State Administrative Tribunal of Western Australia (No 2) [2012] WASC 306
TABLE OF CONTENTS
Background to proceeding
Conduct of proceeding
Legal framework and principles
Principles stated in the GA Act
Presumption of capacity
'… unable, by reason of a mental disability …'
Who may be appointed as a guardian or an administrator?
Does a 'review' under s 17A(1) of the GA Act fall within the 'review' jurisdiction or the 'original' jurisdiction of the Tribunal?
Does the applicant bear a legal burden of proof in guardianship and administration proceedings?
Does the Briginshaw principle apply in guardianship and administration proceedings?
Issues for determination
Evidence
Dr RC's evidence
Dr DF's evidence
Views and wishes of Mrs LP
Applicant's evidence
CP's evidence
PP's evidence
Parties' submissions
Applicant's submissions
Mrs LP's submissions
PP's submissions
Public Advocate's submissions
Is the presumption of capacity displaced?
Guardianship
Administration
Is there a need for the appointment of a guardian or an administrator?
Guardianship
Administration
Who should be appointed as administrator?
When should the administration order be reviewed?
Can the Tribunal make an order requiring keys to be provided to the front door of the residential property and access to Mrs LP?
Conclusion, declaration and orders
REASONS FOR DECISION OF THE TRIBUNAL:
Background to proceeding
Mrs LP is almost 93 years old. She emigrated to Australia with her late husband from a country in Asia about 40 years ago. Mrs LP lives in her own house in Perth (residential property) with her son PP, his wife, FP, and their two children. Mrs LP has three daughters, MA (applicant), WP and LT, and two surviving sons, CP and PP.
In addition to her ownership of the residential property, Mrs LP may have a beneficial interest in a property elsewhere in Perth (investment property), which appears to have been purchased by a family trust using Mrs LP's money obtained from the sale of her property in her country of origin.[1]
[1] The report of Dr RC dated 17 May 2018 states that Mrs LP told Dr RC at her consultation with him on that day that '[s]he sold property in [her country of origin] to purchase the [investment] property but the house is in fact owned by a trust controlled by two of her sons' (Hearing Book (Exhibit 1) page 34).
According to PP's evidence, the applicant and others in the family have failed to give Mrs LP income from the investment property, contrary to an agreement within the family to do so. According to the applicant's and CP's evidence, income from the investment property has been used to pay for Mrs LP's annual extended trips to her country of origin. There is no documentary or other satisfactory evidence before the Tribunal in relation to the investment property, the family trust or the amount and distribution of rent or income from the investment property.
It appears that Mrs LP's only income at present is the aged pension, although she formerly received monthly payments of $1,400 to $1,500 from LT. LT says that those payments were made out of 'filial piety'.[2] However, as we discuss below, it is more probable that these amounts were for the repayment of a loan from Mrs LP to LT.
[2] Written statement of evidence of [LT] dated 21 June 2018 [9] (Further Supplementary Hearing Book Part 3 (Exhibit 5) page 11).
In April 2017, PP sought to sell the residential property under the authority of an Enduring Power of Attorney, which Mrs LP signed on 19 April 2017 appointing PP as her enduring attorney (first EPA).[3] However, at Mrs LP's request, the applicant arranged with the real estate agent for the 'For Sale' sign to be removed and the applicant prepared and, on 12 June 2017, lodged at Landgate, a revocation of the first EPA.[4] On 28 June 2017, Mrs LP signed a Statutory Declaration on a Landgate form stating that 'I confirm that I do not intend nor desire to sell my [residential property], and my wish is to reside in that property until the day I die'.[5] Mrs LP's signature on the Statutory Declaration was witnessed by WY, a legal practitioner.
[3] The first EPA is not in evidence.
[4] Statement of [the applicant] [11]-[14] (Further Supplementary Hearing Book (Exhibit 3) page 11).
[5] Hearing Book (Exhibit 1) page 457.
On 21 July 2017, Mrs LP signed a second Enduring Power of Attorney (EPA) appointing PP as her enduring attorney. In the EPA, Mrs LP specifically declared that 'this Enduring Power of Attorney will continue in force notwithstanding my subsequent legal incapacity'.[6] The EPA states that it was signed by Mrs LP and that:[7]
… she being unable to read in the English language after this instrument had been read and explained to her in [her original language] by [PD], a person understanding both languages, she then appearing to understand fully its nature and effect.
[6] Hearing Book (Exhibit 1) page 17.
[7] Hearing Book (Exhibit 1) page 17.
Mrs LP's signature on the EPA was witnessed by AP, a legal practitioner, and by the interpreter. On 28 July 2017, PP signed an acceptance of the EPA, acknowledging that 'the power of attorney is an Enduring Power of Attorney and will continue in force notwithstanding the subsequent legal incapacity of the donor'.[8] On 15 August 2017, the EPA was registered at Landgate.[9]
[8] Hearing Book (Exhibit 1) page 18.
[9] Hearing Book (Exhibit 1) page 17.
On 19 December 2017, the applicant commenced proceeding GAA 3744 of 2017, being an application under s 109(1)(c) of the Guardianship and Administration Act 1990 (WA) (GA Act), seeking the revocation of the EPA, and proceeding GAA 3874 of 2017, being an application under s 40(1) of the GA Act, seeking a guardianship order for the appointment of a limited guardian, to make treatment, accommodation and contact decisions on behalf of Mrs LP, and an administration order for the appointment of an administrator of Mrs LP's (financial) estate (s 40(1) application). Under 'details of decision-making disability' in the s 40(1) application, the applicant said:[10]
Unsure if Mrs [LP] suffers from any form of disability which may affect her decision-making ability. Unable to assess Mrs [LP] as she is under the care of [PP], her son and enduring attorney, who has isolated her from the rest of her children.
[10] Hearing Book (Exhibit 1) page 9.
Both proceedings were listed for hearing on 13 February 2018 before Senior Member Lisa Eddy. Senior Member Eddy dismissed the applications under s 40(1) of the GA Act for a guardianship order and for an administration order,[11] essentially because she was not satisfied that the presumption of capacity, under s 4(3) of the GA Act, was displaced on the evidence before her.[12] The senior member's decision is hardly surprising, given that the only medical evidence before the Tribunal was a report by Dr DF, Mrs LP's general practitioner, in which he said that he had not seen Mrs LP for nearly 12 months, and was therefore 'unsure' as to whether she had capacity to make reasonable decisions in relation to medical treatment and procedures, accommodation and services, and expressed the opinion that Mrs LP does not have a mental disability.[13] Senior Member Eddy adjourned the application under s 109(1)(c) of the GA Act seeking the revocation of the EPA.
[11] Hearing Book (Exhibit 1) page 32.
[12] ts 6, 13 February 2018.
[13] Hearing Book (Exhibit 1) pages 402-406.
On 9 March 2018, the applicant sought review by a Full Tribunal, under s 17A(1) of the GA Act, of the determination made on 13 February 2018 to dismiss her applications under s 40(1) of the GA Act for a guardianship order and an administration order in respect of Mrs LP (s 17A(1) application). The applicant's reasons for seeking review are stated in Annexure A to the s 17A(1) application as follows:[14]
My mother was admitted to St John of God (SJOG) Hospital, Subiaco on 20 February 2018. She is suffering from a terminal illness that has been left untreated since 2017, and is now inoperable. I learned of her admission to hospital & diagnosis from the medical staff at the hospital, who were concerned about her complaints of isolation from her children & condition. Up to date information about my mother's capacity to make decisions for herself will be available from SJOG Hospital.
I do not know why my mother has not received the medical treatment that she needed. At the very least, she is in need of oversight & care by someone in authority who will ensure she is able to see all her children & receives the comfort and treatment that she needs.
[14] Hearing Book (Exhibit 1) page 7 (as written).
In the s 17A(1) application, the applicant seeks the appointment of the Public Advocate as limited guardian 'to make decisions regarding [Mrs LP's] accommodation and contact with family members' and seeks the appointment of the Public Trustee as 'my mother's plenary [a]dministrator'.
In her opening statement made on 26 June 2018, Ms D Taylor, counsel for the applicant, said that her client:[15]
… seeks the appointment of the [P]ublic [A]dvocate as a neutral honest broker whose responsibilities lie to Mrs [LP] to make decisions about accommodation, contact with other persons, services, and, at this stage, possibly treatment, but with a query attached to that. And the reason for that - those limited functions being sought is that your Honour will have gleaned from the papers that contact for Mrs [LP] has been a live issue between the parties for some months. There's concern or written complaint and material about the family members who don't live in the house at [the residential property] being unable to get in because the door is locked in some way or the lock has been changed and … [f]or whatever reason, access has been difficult.
[15] ts 17-18, 26 June 2018.
Under 'evidence of disability' in the s 17A(1) application, the applicant referred only to the report by Dr DF summarised at [9] above.
The application under s 109(1)(c) of the GA Act in relation to the EPA has not been the subject of any further hearing and no final determination in relation to that application has been made by the Tribunal. The applicant does not seek review of any determination in relation to that application in this proceeding before the Full Tribunal. However, under s 108(1) of the GA Act, in circumstances where the Tribunal makes an administration order in respect of the estate of the donor of an enduring power of attorney created under s 104 of the GA Act (that is, an enduring power of attorney, such as the EPA made by Mrs LP on 21 July 2017), it may revoke or vary the enduring power of attorney. Furthermore, s 108(1a) of the GA Act states, in part, as follows:[16]
(1a)Despite subsection (1), where the State Administrative Tribunal makes an order referred to in that subsection and the continued operation of an enduring power of attorney would be inconsistent with the functions of the administrator or person acting under section 65 or 66, the Tribunal —
(a)in the case of an enduring power of attorney created under section 104, shall revoke the power or vary it to remove the inconsistency[.]
…
Conduct of proceeding
[16] Emphasis added.
The s 17A(1) application was listed for hearing before the Full Tribunal at 2.00 pm on 26 June 2018 for three hours. Most s 17A(1) applications are heard and determined in a three hour hearing. However, unfortunately, and highly unusually, the conduct of this proceeding has involved four hearings, as well as three vacations of hearings, over a period of over 19 months.
At the hearing on 26 June 2018, the parties made opening statements and the Tribunal also heard evidence from Mrs LP, which she volunteered during the parties' openings. Mrs LP had the benefit of an interpreter in her original language. However, Mrs LP did not bring her hearing aids and did not wear her glasses, although she has significant hearing and sight deficits. This caused difficulties for the interpreter. Counsel for the applicant raised concerns over what she described as the interpreter's 'selective account at times of what [Mrs LP] has to say'.[17] However, as we discuss below, Mrs LP was able to clearly express certain views and wishes to the Tribunal directly in English.
[17] ts 47, 26 June 2018.
Counsel for the applicant also said that she was expecting Dr RC, a consultant geriatrician who had seen Mrs LP on 17 May 2018 and had provided a report to Dr DF, which was before the Tribunal, to be available to give evidence by telephone at the hearing. However, no prior request had been made by any party for Dr RC to be available at the hearing and attempts to contact him during the hearing that afternoon were unsuccessful.
We adjourned the matter 'part heard to a date to be advised by the Tribunal for a duration of one day'. We directed the Executive Officer to request Dr DF to lodge a report by 17 July 2018 with the Tribunal 'as to the capacity of Mrs [LP] to make reasonable judgments about her financial affairs and personal affairs' and directed that both Dr DF and Dr RC 'are to be available by telephone to give evidence at the resumed hearing'. In addition, we referred the matter to a 'compulsory mediation with the parties required to attend at a time and date to be set'.
The 'compulsory mediation' took place on 10 August 2018 before Senior Member Jack Mansveld. Following the mediation, Senior Member Mansveld noted that the mediation was 'not successful'.[18]
[18] Supplementary Hearing Book (Exhibit 2) page 1.
Unfortunately, owing to the limited mutual availability of the parties' legal representatives and the three members comprising the Full Tribunal, the further hearing of the matter could not proceed for four months. The hearing recommenced at 10.07 am on 12 December 2018 and the Tribunal heard concurrent medical expert evidence from Dr DF and Dr RC by telephone. While the evidence of Dr DF was completed, Ms Taylor had not completed her questioning of Dr RC, and Mr V Lo, counsel for Mrs LP, had not been able to ask any questions of Dr RC by the time Dr RC had to attend to patients.
Ms Taylor then indicated that she wished to call the applicant to give evidence. Ms Taylor did so on the understanding that the applicant's witness statement, apparently prepared in May 2018, had been filed with the Tribunal and served on Mrs LP and PP.[19] However, it emerged that the applicant's solicitors had failed to file and serve the applicant's witness statement. Mr Lo indicated that he wished to see the applicant's witness statement before she gave evidence. Consequently, at 3.36 pm on 12 December 2018, the hearing was again adjourned 'to a date to be determined', and we made programming orders requiring the applicant to file and serve her witness statement, a witness statement from CP and any other evidence on which she proposed to rely, by 9 January 2019, and requiring PP to file and serve his own witness statement by 23 January 2019.
[19] On 27 March 2018, the Tribunal made programming orders directing the applicant to file with the Tribunal, by 20 April 2018, 'any evidence on which she proposes to rely (which was not filed in the application determined by the single member)', and indicating that the Tribunal would prepare a hearing book, including documents filed by the applicant and other parties in accordance with the programming orders, which was to be made available to the parties on 9 May 2018.
After the parties advised the Tribunal of their mutually available dates, on 24 December 2018, the further hearing of the matter was listed for one day on 13 February 2019. However, Dr RC advised the Tribunal by email on 31 December 2018 that he was not available to attend the hearing on 13 February 2019 and in a further email on 8 January 2019 indicated that he would not be contactable by telephone on 13 February 2019. In a subsequent email on 22 January 2019, Dr RC explained that the reason he was not available to attend the hearing on 13 February 2019 was because he had international travel booked on 12 February 2019, which had been arranged the previous year, and he would be either on an aeroplane or in transit at an airport on 13 February 2019. Consequently, on 23 January 2019, the hearing on 13 February 2019 was vacated and the matter was listed for further hearing at 10.00 am on 23 July 2019 for a duration of two days. Dr RC was also directed to attend at the Tribunal in person to conclude his evidence.
The five month delay in listing the further hearing was again a result of the unfortunate limited mutual availability of the parties' legal representatives (including extremely limited or no availability at all in May and June 2019) and of the three members comprising the Full Tribunal.
At the further hearing on 23 July 2019, Ms Taylor and Mr Lo asked questions of Dr RC for a total of two hours. Ms Taylor then called the applicant to give evidence and sought to introduce into evidence, through her, a series of video and audio recordings of Mrs LP (in her original language) that Ms Taylor submitted were relevant to the determination of the s 17A(1) application.
The applicant's solicitors had previously filed and served the video and audio recordings, together with what was said to be English 'transcripts' of the recordings, translated by an interpreter, JK. However, while the first video was being played to the Tribunal, it became clear that there was more speech recorded on the video than translation in the 'transcript'. Mr Lo, who understands the language in the video, also said that there were 'sequencing' inconsistencies between what was heard in the video and what had been written in the transcript. In addition, the Tribunal noted and observed that only some of the transcripts were signed by the interpreter or had the interpreter's name on them. The applicant said that the original transcripts, with the interpreter's name, were 'in [her] office'.[20] The hearing was adjourned to 9.15 am the next day to enable the applicant to provide transcripts certified by the interpreter as complete and correct.
[20] ts 161, 23 July 2019.
On 24 July 2019, Ms Taylor produced transcripts certified by the interpreter for seven recordings, including for the video played on 23 July 2019. However, Mr Lo expressed concerns about:
•three transcripts that were not certified;
•the seven certified transcripts not being dated (neither the date on which the translation took place nor the date on which the certification was given);
•the 'sequencing' inconsistency not having apparently been resolved; and
•the fact that the applicant had said in her evidence on 23 July 2019 that she had some involvement in the translation process by providing certain information to the interpreter.
After seeking a short adjournment to find out whether the interpreter could attend the hearing to give evidence, Ms Taylor advised the Tribunal that the interpreter was unavailable that day and sought a further adjournment of the hearing to enable the applicant to call the interpreter to give evidence. The application for an adjournment was not opposed by any party, but Mr Lo asked for Mrs LP's costs to be reserved.
We reluctantly adjourned the hearing to 14 August 2019. We were reluctant to do so, because the hearing had commenced over 12 months earlier and had already been adjourned twice. As we said when granting the adjournment, we only did so, because Ms Taylor indicated to the Tribunal that, in her submission, the video and audio evidence, when taken together with other evidence already before the Tribunal or to be given, is sufficient to displace the presumption of capacity, and the adjournment was not opposed, subject to costs being reserved.[21] PP said that he also wished to present video and audio recordings of his mother.
[21] As indicated below, the video and audio evidence was ultimately not tendered or relied on by the applicant.
Ms Taylor also made an application for the provision by PP, as Mrs LP's attorney under the EPA, of updated financial records for Mrs LP, because the financial records previously produced by PP[22] were, by then, 18 months old.
[22] Hearing Book (Exhibit 1) pages 413-425.
On 24 July 2019 we made the following orders:[23]
1.The hearing is adjourned for completion of the hearing at 10am on 14 August 2019 for two days.
2.By 7 August 2019 the applicant and [PP] are to each file with the Tribunal and give to the other parties a USB of any video or audio recordings on which they propose to rely, together with a certified copy of the translation of any such recording into English bearing the name and signature of the interpreter, the date on which the translation took place, and the date on which the certificate is given.
3.Any interpreter who gives a certificate referred to in order 2 is to be present to give evidence while the relevant recording is played during the hearing.
4.Mrs [LP]'s costs of the hearing today and any costs thrown away as a result of the adjournment are reserved.
5.By 7 August 2019 [PP], as the attorney, is to provide to the Tribunal and the other parties an update to the statement of assets and liabilities of Mrs [LP] at pages 413-415 of Exhibit 1 and copies of Mrs [LP]'s bank statements from 1 January 2018 to date and updated certificates from Centrelink and HBF.
[23] The applicant filed a USB containing video recordings and certified translations in accordance with Order 2. The applicant also arranged for the interpreter to be present at the commencement of the further hearing on 5 February 2020. However, the video evidence and certified translations were ultimately not tendered or relied on by the applicant.
On 12 August 2019, that is, two days before the further hearing listed on 14 August 2019, the applicant's solicitors wrote to the Tribunal, attaching proposed orders sought by the applicant and Mrs LP vacating the further hearing dates of 14 and 15 August 2019 in order for Mrs LP to have a further medical assessment by Dr RC. PP did not sign the proposed orders and opposed the further adjournment of the hearing. However, as Mrs LP herself wished to have a further assessment by Dr RC, and given the potential consequences of this proceeding in terms of Mrs LP's freedom of decision-making, we granted the adjournment in order for her to be able to attend the further consultation with Dr RC. The Tribunal then awaited the parties' indication of that consultation.
On 29 August 2019, the applicant's solicitors emailed the Tribunal, enclosing the following:
•their letter to Dr RC of 13 August 2019 in which they requested him to see Mrs LP;
•their email of 26 August 2019 in which they asked for a response to their earlier correspondence;
•Dr RC's responsive email on 26 August 2019; and
•their response to Dr RC's email on 26 August 2019 by letter dated 28 August 2019.
In his email dated 26 August 2019, Dr RC said that:
… I am not convinced that me seeing Mrs [LP] again is going to be helpful. I need a good reason as to why you think re-assessment is necessary.
The applicant's solicitors' responsive letter dated 28 August 2019 stated as follows:[24]
[24] Original emphasis.
Dear Dr [RC]
State Administrative Tribunal GAA 841 of 2018 - Mrs [LP] Reassessment of Mrs [LP]
1.We refer to your email dated 26 August 2019.
2.As you are aware, Mrs [LP] is the subject of contested proceedings before the State Administrative Tribunal (the Tribunal) and one of the key issues before the Tribunal is her capacity to make reasonable decisions in respect of matters relating to her person and in particular, her estate.
3.The management of Mrs [LP]'s financial affairs by her son, [PP], under the terms of an Enduring Power of Attorney appointing him signed on 21 July 2017 is in issue, for reasons relating to whether Mrs [LP] possessed the requisite full legal capacity needed to make a valid appointment when she signed the document in July 2017, and whether [PP] has used the document to exploit his mother financially and deplete her estate.
4.Those issues are of great concern to our client, and the outcome of the proceedings rests significantly on the issue of Mrs [LP]'s capacity.
5.Referring to your evidence given at the hearing before the Tribunal on 23 July 2019, you indicated that you saw Mrs [LP] on two occasions but were unable to complete your assessments of her for two main reasons, namely:
a)the inability to communicate effectively with her due to her deafness; and
b)you did not have crucial information in order to ask her appropriate questions.
6.The crucial information that was lacking refers to information that would have allowed you to make objective verification of the statements Mrs [LP] made about her assets and financial position during the assessments, in response to the questions you put to her for the purposes of determinining her testamentary capacity and ability to make financial decisions.
7.You expressed that they could include information such as, a list of her assets and their value, her enduring power of attorney, and will, if any. They could also include additional information such as the application to the Tribunal and an explanation of the family dynamics.
8.There is a possibility that the impressions and views you formed of Mrs [LP]'s capacity during those two occasions may be altered, if you were to now carry out a reassessment under circumstances where you would receive the requisite crucial information listed above in advance, and adjustments were made to the communication methods employed during the reassessment. There is also a possibility that you would be able to make more conclusive findings as to her capacity to make financial decisions and to make a will.
9.As you would have the benefit of reviewing crucial information beforehand, one way of overcoming Mrs [LP]'s deafness could be to have some of the questions typed out in simple English and printed in large font for her to read during the assessment. As far as we are aware, she has no problems with reading simple English.
10.The outcome of the proceedings holds serious consequences for Mrs [LP] and arguably, a decision should not be made until such time that there is more conclusive evidence pertaining to her capacity. A re-assessment is therefore necessary.
11.We would be grateful if you could consider our letter and provide us with your response as soon as possible.
12.If you wish to discuss further, please do not hesitate to contact the writers.
Yours faithfully
TAN & TAN LAWYERS
[RT]/[ET]On 5 September 2019, we made the following orders:
1.Any further medical assessment in relation to Mrs [LP]'s capacity to make reasonable judgments in respect of:
(a)personal matters relating to medical treatment, accommodation and contact with other people; and
(b)matters relating to all or any part of her financial estate,
is to be filed with the Tribunal and given to the other parties by 8 November 2019.
2.The medical practitioner who gives any further medical assessment filed in accordance with the preceding order must be given a copy of these orders and must attend the further hearing listed in accordance with the following order in person, on 2 December 2019 at a time nominated by the medical practitioner to Judge Parry's Associate in writing by 22 November 2019.
3.The part-heard final hearing is listed to continue and be completed at 10am on 2 December 2019 for a duration of two days at 565 Hay Street, Perth, Western Australia.
On 9 September 2019, we varied the further hearing dates from 2 and 3 December 2019 to 5 and 6 December 2019. The three month delay in the further hearing was a result of (in addition to giving sufficient time for Mrs LP to see Dr RC or another medical practitioner, if Dr RC declined to see her again) the unfortunate limited mutual availability of the parties' legal representatives. The applicant's solicitors indicated that they were unavailable during the whole of September and October 2019 and for approximately half of November and December 2019.
On 15 November 2019, the applicant's solicitors wrote to the Tribunal as follows:[25]
[25] Original emphasis.
Date: 15 November 2019
State Administrative Tribunal
Level 6, 565 Hay Street
Perth WA 6000By post & email to: [email protected]
Dear Sir/Madam
GAA 841 of 2018 – [Mrs LP]
We wish to advise the Tribunal that the earliest date that Dr [RC] can see Mrs [LP] is on 19 December 2019.
To allow time for Dr [RC] to prepare his report after the assessment, we seek an order from the Tribunal vacating the hearing listed on 5 and 6 December 2019, and for the matter to be re listed in the new year.
We have written to Dr [RC] for an estimate of time required to prepare his medical report after seeing Mrs [LP], and are seeking availabilities from him, our Counsel and interpreter [JK]. We will also write to Mr Victor Lo and Mr [PP] to obtain their availabilities, in order to be in a position to advise the Tribunal regarding combined unavailable dates for the relisting of the matter.
Yours faithfully
Tan & Tan Lawyers
[RT]/[ET]Cc by email: Mr Victor Lo, Solicitor for Mrs [LP] [email]
Mr [PP], Respondent [email]
Ms [BT], Office of the Public Advocate [email]
On 27 November 2019, the applicant's solicitors contacted the Tribunal by telephone to inquire about the 'adjournment request'.
In response to this telephone call, on the same day, a Tribunal officer emailed the applicant's solicitors, carbon copied to the other parties, as follows:
Dear Sirs
The Tribunal makes reference to the [letter] dated 15 November 2019.
The Tribunal is yet to receive available dates from yourselves to allow for any potential vacate and relist of this matter and is also unaware of the position of the legal representative for Mrs [LP] concerning this correspondence.
Regards
[Tribunal officer]
On 27 November 2019, the applicant's solicitors responded to the Tribunal officer's email as follows:[26]
[26] Original emphasis.
Date: 27 November 2019
State Administrative Tribunal
Level 6, 565 Hay Street
Perth WA 6000By post & email to: [email protected]
Dear Sir/Madam
GAA 841 of 2018 – [LP]
We refer to the email received from the Tribunal today.
Please see below our available dates between January-March 2020:
January 27, 28
February 5, 6, 17, 20, 21, 24, 25, 26, 27, 28
March 2, 4, 5, 6Please also see enclosed copy of our email of today's date to Mr Lo & Mr [PP] inviting them to provide you with their available dates directly, so that the Tribunal is aware of their position when considering whether the hearing should resume when Dr [RC]'s report is available.
Please note that we wrote to Mr [PP] on 15 November 2019 to seek his available dates but received no reply. We enclose a copy of that correspondence.
We also wrote to Mr Lo on 15 November 2019 seeking available dates. A copy of this correspondence has already been filed with the Tribunal on 15 November 2019.
Yours faithfully
Tan & Tan Lawyers
[RT]/[ET]Cc by email: Mr Victor Lo, Solicitor for Mrs [LP] [email]
Mr [PP], Respondent [email]
Ms [BT], Office of the Public Advocate [email]
Mr Lo did not advise the Tribunal of his client's position in relation to the adjournment application or his available dates for a further hearing date. However, the Tribunal had been copied into correspondence between the applicant's solicitors and Mrs LP's solicitors with respect to transport arrangements for Mrs LP to attend a further medical assessment with Dr RC. On 3 December 2019, the Tribunal made the following orders:
1.Given that the proposed represented person apparently consents to attending a further medical assessment by Dr [RC] on 19 December 2019, the applicant's application for an adjournment of the further hearing dates of 5 and 6 December 2019 is granted and the hearing dates of 5 and 6 December 2019 are vacated.
2.Pursuant to s 34 of the State Administrative Tribunal Act 2004 (WA) Dr [RC] is to provide his further medical assessment report in relation to Mrs [LP]'s capacity to make reasonable judgments in respect of:
(a)personal matters relating to medical treatment, accommodation and contact with other people; and
(b)matters relating to all or any part of her financial estate,
to the Tribunal, the proposed represented person c/o VL Legal (attention Mr Victor Lo), the applicant c/o Tan & Tan Lawyers (attention Ms [ET]) and Mr [PP] by 22 January 2020.
3.The matter is listed for the conclusion of the final hearing at 10am on 5 February 2020 for two days at 565 Hay Street, Perth.
4.Dr [RC] is to be available to give evidence at the final hearing on 5 or 6 February 2020 for a period of one hour by telephone, at a time nominated by him to the Tribunal in writing by 22 January 2020.
5.The applicant is to provide a copy of these orders to Dr [RC] by 6 December 2019.
6.No further adjournments of the final hearing will be granted.
As discussed below, Mrs LP attended a further consultation with Dr RC on 30 December 2019 and Dr RC provided two further medical reports, a brief report on a 'Doctor's Guide' form dated 14 January 2020 and a longer report addressed to the applicant's solicitors dated 28 January 2020. Although the second report was provided six days after the date required by Order 2 made on 3 December 2019, no party objected to the report. As will be seen below, Dr RC's reports in January 2020 are significant in the resolution of this proceeding. Although arrangements were made for Dr RC to give oral evidence during the further hearing, in light of the written reports, neither the Tribunal nor any party required him to attend to give further evidence.
At the further hearing of the matter on 5 February 2020, PP gave additional oral evidence and was cross-examined, and the Tribunal received further documents into evidence, including the two reports of Dr RC provided in January 2020. Following the parties' final submissions, the Tribunal reserved its decision.
As we said earlier, the conduct of this proceeding has been unfortunate and highly unusual in that it has involved four hearings, as well as three vacations of hearings, over a period of about 19 months. What has occurred in this case is clearly inconsistent with the Tribunal's objective stated in s 9(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) 'to act as speedily … as is practicable'.
Some of the delay in the timely conduct and determination of this proceeding was due to the referral of the matter to 'compulsory mediation' in August 2018, Dr RC's overseas travel in February 2019, his initial reluctance to conduct a further consultation with Mrs LP in August 2019, and his inability to then see her until 19 December 2019 (and subsequently until 30 December 2019), as well as the limited mutual availability of the applicant's and Mrs LP's legal representatives and of the three members comprising the Full Tribunal (due to the workload of the Tribunal and Dr Hankey's work as a medical practitioner) at various points.
However, it is most unfortunate and unsatisfactory that hearings had to be vacated (in part, at least) as a consequence of various failures by the applicant's legal representatives. In particular, the applicant's legal representatives:
•failed to request that Dr RC be present to give oral evidence at the hearing on 26 June 2019, although the applicant's counsel proposed to ask questions of him, which (in part) resulted in the first hearing on 26 June 2018 having to be adjourned;
•failed to file with the Tribunal (as required by the programming orders made on 27 March 2018) the applicant's statement, which (in part) resulted in the second hearing on 12 December 2018 having to be adjourned;
•failed to provide certified and accurate translations of all video and audio recordings on which the applicant initially proposed to (but ultimately did not) rely, which resulted in the third hearing on 23 July 2019 having to be adjourned to the next day; and
•failed to provide certified and accurate translations of all video and audio recordings on which the applicant initially proposed to (but ultimately did not) rely, and failed to arrange for the interpreter who provided the translations to be available at the hearing on 24 July 2019, which resulted in the hearing on 24 July 2019 having to be adjourned.
Legal framework and principles
Principles stated in the GA Act
Section 4 of the GA Act sets out principles which the Tribunal is required to comply with and adhere to in conducting this proceeding. Section 4 of the GA Act states as follows:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of —
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
Presumption of capacity
The presumption stated in s 4(3) of the GA Act, which is often referred to as the 'presumption of capacity', as discussed further at [99]-[109] below, can only be displaced by clear and cogent evidence of incapacity leading the Tribunal to be actually persuaded that the person in respect of whom the proceeding is brought is a person for whom a guardianship order can be made (under s 43(1) of the GA Act) or for whom an administration order can be made (under s 64(1) of the GA Act). As the Full Tribunal said in GC and PC [2014] WASAT 10; (2014) 85 SR (WA) 23[27] at [36]:
… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decisionmaking capacity removed from them and a substitute decisionmaker appointed for them under the Act. Because of the significant consequences for an individual of having their decisionmaking capacity removed from them and a substitute decisionmaker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.
[27] Judge Parry DP, Ms D Taylor SM and Dr R Clarnette S Sess M.
In relation to an application for a guardianship order, the presumption of capacity can only be displaced if the Tribunal is satisfied, on a balance of probabilities, by clear and cogent evidence and feels an actual persuasion on the evidence of the matters set out in s 43(1) of the GA Act, which states as follows:
Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 —
(a)has attained the age of 18 years;
(b)is —
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint —
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
Section 44 of the GA Act concerns who may be appointed as guardian and states as follows:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal —
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible —
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
The presumption of capacity for the purposes of financial decisionmaking can only be displaced if the Tribunal is satisfied, on a balance of probabilities, by clear and cogent evidence and feels an actual persuasion on the evidence of the matters set out in s 64(1) of the GA Act, which states as follows:
Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 —
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint —
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
'… unable, by reason of a mental disability …'
The expression 'mental disability', which is referred to in s 64(1)(a) of the GA Act, is defined non-exhaustively in s 3(1) of the GA Act as follows:[28]
mental disability includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia[.]
[28] Original emphasis.
The meaning of the expression 'mental disability' was recently considered by the Full Tribunal in FY [2019] WASAT 118; (2019) 98 SR (WA) 190.[29] The Tribunal observed at [25] that the following six features of the definition of 'mental disability' should be noted:[30]
26First, the definition is an inclusive one, rather than an exhaustive one. In other words, the ordinary meaning of the term 'mental disability' remains relevant. The Tribunal considered the ordinary meaning of the term 'mental disability' in S and SC [[2015] WASAT 138 (Ms H Leslie M)]. As the Tribunal noted in that case, the ordinary meaning of the word 'mental' is 'of or in the mind'. The Tribunal noted that the word 'disability' has various meanings including 'a lack of some asset, quality or attribute that prevents someone doing something', 'a lack of competent power, strength or physical or mental ability', 'a particular physical or mental weakness or incapacity' and 'any restriction or lack of ability to perform an activity in the manner and within the range considered normal for a human being' [S and SC [18]-[20]]. The Tribunal also noted that the meaning of the word 'disability' when used in a legal context is 'an inability to perform some function' or 'an objectively measurable condition of impairment, physical or mental, that prevents a person from engaging' or 'the total or partial loss of a person's mental or bodily functions', including 'a disorder that results in a person learning differently to a person without the disorder and a disorder that affects a person's thought processes, perceptions of reality, emotions or judgments or that results in disturbed behaviour' [S and SC [23]].
27The ordinary meaning of the term 'mental disability' in the GA Act thus contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal, or which is objectively measurable. A mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties.
28Secondly, the definition of the term 'mental disability' in the GA Act also expressly encompasses certain recognised medical conditions or diagnoses, each of which may result in some impairment in the functioning of a person's mind.
29Thirdly, one of the 'mental disabilities' to which the definition expressly refers is an 'intellectual disability'. The word 'intellectual' means 'relating to the intellect', and 'intellect' means 'the power or faculty of the mind by which one knows, understands, or reasons, as distinct from that by which one feels and that by which one wills; the understanding or mental capacity, especially of a high order' [Macquarie Online Dictionary]. The word 'intellect' also means 'that faculty, or some faculties, of the mind … by which a person knows and reasons; power of thought; understanding; and analytic intelligence' [Oxford English Online Dictionary]. An 'intellectual disability' contemplates that a person's power to understand or reason is affected by an impairment, incapacity or inability to function in a manner which is outside the normal range, or which is objectively measurable.
30Fourthly, the definition does not contain any requirement that the 'mental disability' be permanent [In contrast, see for example the definition of disability in s 3 of the Disability Services Act 1993 (WA)]. Some mental disabilities are permanent, and some (such as some psychiatric conditions) may be experienced transiently. Quite apart from their genetic make-up, an individual's mental ability at any stage of their life may be affected by a range of considerations, including their age, education, their overall health, including their mental health, and in particular any conditions, diseases or disorders which they may suffer or develop over their lifetime, and any injuries they may suffer in the course of their lifetime, which result in permanent or temporary impairment of their mental functioning. For the purposes of the GA Act, it matters not whether a person has a mental disability because they were born with an intellectual disability, whether they have developed an impairment in their mental functioning as a result of a disease or a medical condition, or whether they have experienced that impairment as a result of an acquired brain injury.
31Fifthly, the definition of 'mental disability' does not require any precise degree of mental disability, measured by reference to some medical or scientific benchmark. That no doubt reflects the fact that a person's mental ability may be located at any one of an infinite number of points along a spectrum, or points plotted on a grid, which represents the various aspects of cognitive functioning, including the speed and ease of information processing, problem solving, reasoning, and memory. For the purposes of s 64 of the GA Act, the only relevant measure, in relation to a person with a 'mental disability', is whether the person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate.
32Sixthly, nothing in the definition of 'mental disability' under the GA Act requires that a finding of the existence of a mental disability be based on a finding as to the existence of one, or more than one, recognised medical conditions or disorders. A finding that a person has a 'mental disability' may, of course, be referrable to the existence of one, or a combination of more than one, identified medical conditions. In other cases, the underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, but the existence of the mental disability may be beyond doubt.
[29] Justice Pritchard P, Ms F Child M and Dr J Caunt Sess M.
[30] At [26]-[32] (original emphasis).
In FY, the Full Tribunal also considered the reasoning process involved in the application of the requirement in s 64(1)(a) of the GA Act to displace the presumption of capacity in relation to financial decision-making that a person is 'unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate'. The Full Tribunal said the following at [52]-[54]:
52Section 64(1)(a) of the GA Act requires that a person be 'unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate'. The application of s 64 involves both subjective and objective tests [FS [2007] WASAT 202 (Justice Barker P, Ms J Toohey SM and Mr J Mansveld M) [106]; Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 [45] (Pritchard J)]. The Tribunal is required to consider whether the person in respect of whom the application is made has the ability to make 'reasonable judgments' about their estate. That constitutes a subjective test, because the person's ability falls to be assessed in relation to their actual estate. At the same time, the Tribunal must also consider whether the person has the ability to engage in the particular mental process which is required in order to make that judgment, and that test is an objective one. The Tribunal is thus required to[:]
[…] consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances [FS [110]; Public Trustee (WA) v Brumar Nominees Pty Ltd [45]].
53An individual's ability to make reasonable judgments in respect of their estate may depend on a variety of factors, such as their health, particularly their mental health, at any point in time. Fundamentally, however, a person's ability to make reasonable judgments about their estate requires that they have the intellectual ability necessary to make decisions of that kind. An individual's ability to make reasonable judgments in respect of their estate requires that they have, amongst other things, the ability: to understand the need for, and sources of, income available to them; to understand the value of any income received relative to items of expenditure; to identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into contracts such as those for the purchase of a phone, household items, a car, or a house); to organise their affairs so as to be able to meet debts as they fall due; and to identify and implement problem solving strategies for resolving any unexpected financial issues.
54The reference to a person's 'estate' is a reference to the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs [SAL and JGL [2016] WASAT 63 (Judge Parry DP, Dr B De Villiers M and Ms D Quinlan M) [22]; see also Interpretation Act 1984 (WA) s 5; and see also the long title to the GA Act, which refers to the administrator providing assistance in the management of a person's financial affairs].
In FY, the Full Tribunal also discussed the meaning of the phrase 'by reason of' in s 64(1)(a) of the GA Act as follows at [75]:[31]
The meaning of the phrase 'by reason of' has been considered in many cases and in a variety of statutory contexts. The use of the phrase 'by reason of' in the context in which it appears in s 64 implies a relationship of cause and effect between a mental disability and a person's inability to make reasonable judgments in respect of matters relating to all or any part of their estate. The context suggests that the meaning of the phrase 'by reason of' equates to 'because of' and 'due to'. In determining whether that inability to make reasonable judgments has arisen by reason of a person's mental disability, the practical application of ordinary causation principles is required.
Who may be appointed as a guardian or an administrator?
[31] Footnotes omitted.
Section 44 of the GA Act concerns who may be appointed as guardian and states as follows:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal —
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible —
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
Section 68 of the GA Act concerns who may be appointed as an administrator and states as follows:
(1)An administrator (including a joint administrator) shall be —
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal —
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2)The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that —
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible —
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4)The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.
In relation to services, there is no current need for any decision to be made in relation to services.
We, therefore, find that Mrs LP is not in need of a guardian for the purposes of s 43(1)(c) of the GA Act. This is a further reason on account of which we dismiss the application for a guardianship order.
Administration
As indicated earlier, under s 4(4) of the GA Act, an administration order 'shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action'.
As also indicated earlier, Mrs LP executed the EPA on 21 July 2017 appointing PP as her enduring attorney. There is no evidence before the Tribunal on which the presumption of capacity could be displaced as at 21 July 2017. As indicated earlier, the EPA states that it was read and explained to Mrs LP in her original language by an interpreter who understands both English and that language, and that Mrs LP was 'then appearing to understand fully its nature and effect'. The execution of the EPA clearly reflects Mrs LP's view and wish for PP to make financial decisions on her behalf, including if she should become legally incapable of doing so for herself. Mrs LP has expressed the same view and wish to Dr RC and BT. The EPA also evidences Mrs LP's trust and confidence in PP.
The EPA is 'less restrictive of [Mrs LP's] freedom of decision and action' than an administration order, because it is the product of her freedom of decision-making at a time when the law presumes her to have had capacity and that presumption has not been displaced.
However, under s 4(2) of the GA Act, 'the primary concern' of the Tribunal must be 'the best interests' of Mrs LP. The 'best interests' of Mrs LP is an objective assessment which the Tribunal is required to make. The 'best interests' of a person in respect of whom an application under the GA Act is made may well be different to the subjectively expressed views and wishes of that person. In the circumstances of this case, in our view, the best interests of Mrs LP requires that an independent substitute decision-maker be appointed for her in relation to her financial estate. Objectively determined, it is not in Mrs LP's best interests for her financial estate to be managed by PP under the EPA. We have come to this view for the following four reasons.
While the applicant and CP have expressed concerns about their mother being the victim of financial elder abuse at the hands of PP and FP, there is no cogent evidence to support such a finding. In this regard, Dr DF gave evidence that although, as a broader issue, elderly people with cognitive and sensory impairments are vulnerable to elder abuse, having known her for 30 years, he never saw Mrs LP as being subject to elder abuse. We find that, insofar as Mrs LP has shown favour to PP over his siblings - in particular her clearly expressed view in her evidence to the Tribunal, as well as in consultations with Dr RC and in meetings with BT, that she wishes PP to inherit the residential property after her passing - that is not a product of elder abuse, but rather of her genuine view and wish to show him favour, apparently in return for the favour that he, his wife and their children have shown her, by living with and caring for her over a significant period of time.
However, as we said earlier, it was inappropriate for PP, as the donee under the EPA, to merge Mrs LP's pension with his own money. The donee under an enduring power of attorney must keep the income and other financial resources of the donor separate to the donee's. As BT submits, PP's conduct in merging Mrs LP's pension income with his own money and paying for his mother's care and benefit, and maintenance of the residential property, from that merged fund, demonstrates that a necessary 'level of sophistication' to manage Mrs LP's finances is 'lacking' in PP.
Secondly, as BT also said in submissions, there is clearly a conflict of interest between PP and Mrs LP in relation to management of the residential property. We accept PP's evidence (which was not seriously challenged or contradicted) that his siblings agreed that he and his family could reside rent-free at the residential property in return for taking care of their mother, and paying for and cooking meals. However, it is not clear whether this arrangement is in Mrs LP's best interests. There is a need for an independent substitute decision-maker to determine whether the current arrangements are in Mrs LP's best interests.
Thirdly, as indicated earlier, PP gave evidence that he cannot sell the residential property under the EPA without Mrs LP's consent and that he does not accept that his mother cannot make decisions in relation to her financial affairs. Although PP's evidence indicates his respect for his mother, it also indicates a lack of insight and appreciation as to his mother's cognitive impairment. As the donee under the EPA, particularly in circumstances where the donor lacks capacity to make reasonable decisions in relation to her financial estate, PP could sell the residential property without Mrs LP's consent.
Finally, it is not in Mrs LP's best interests for her financial estate to be managed by PP under the EPA, because, although PP said that both he and his mother are concerned about the purchase of the investment property, he does not appear to have done anything, other than complain to his siblings and express his concerns to the Tribunal, in relation to obtaining information, such as a copy of the Trust Deed, or seek income from the trust or rent from the investment property on behalf of Mrs LP. Furthermore, if Mrs LP's statement to Dr RC in the first consultation on 17 May 2018, that 'the house is in fact owned by a trust controlled by two of her sons', is correct, then PP, who is one of her two sons, is in a position of a conflict of interest with Mrs LP in relation to the investment property.
We find, on a balance of probabilities and feel an actual persuasion, under s 64(1)(b) of the GA Act, that Mrs LP 'is in need of an administrator of [her] estate', for the following three reasons.
First, an administrator is required in order to receive Mrs LP's pension and pay the expenses necessary for her care and benefit and the maintenance of the residential property.
Secondly, an administrator is required in order to objectively review the current arrangements within the family, under which PP and his family reside at the residential property without paying rent or any other regular financial payment for the maintenance of the property, in return for taking care of Mrs LP. Although the administrator may ultimately determine that the current arrangement is operating in Mrs LP's best interests, it is important that such an assessment be made by an independent person.
Thirdly, an administrator is required to independently assess, on behalf of Mrs LP, the circumstances of the purchase of the investment property and Mrs LP's entitlement to income from the trust or rent from the investment property and whether any action should be taken on behalf of Mrs LP to recover any income or rent.
Although, under s 4(6) of the GA Act, an order appointing an administrator 'shall be in terms that … impose the least restrictions possible in the circumstances on the person's freedom of decision and action', in our view a plenary administration order is in the best interests of Mrs LP, given that her estate includes, in addition to her pension, an apparently valuable residential property, and may include a beneficial interest in the investment property, and the breadth of decisions that may have to be made in relation to her estate.
Given that we consider that a plenary administration order should be made, we find, under s 108(1a) of the GA Act, that 'the continued operation of [the EPA] would be inconsistent with the functions of the administrator'. The EPA should, therefore, be revoked under s 108(1a) of the GA Act.
Finally, we note that s 69(1) of the GA Act states as follows:[193]
Subject to section 64(3)(a), the administrator has, or the joint administrators have, in respect of the estate of the represented person, such of the functions provided for by this Act as the State Administrative Tribunal vests in him or them, or directs him or them to perform, in the administration order.
[193] Emphasis added.
Further to [222] above, we consider it appropriate to direct the administrator, under s 69(1) of the GA Act, to make enquiries to ascertain the extent of Mrs LP's estate, including any beneficial interest she may have in the investment property.
Who should be appointed as administrator?
Under s 68(3)(b) of the GA Act, we take into account the clearly expressed wish of Mrs LP that she would like PP to make financial decisions on her behalf. Furthermore, as indicated earlier, at the commencement of the final day of the hearing, the applicant proposed that PP be appointed as limited administrator with authority to manage Mrs LP's pension. However, for the reasons set out at [215]-[218] above, we are not satisfied, under s 68(3)(c) of the GA Act, that PP 'will be able to perform the functions proposed to be vested in the administrator' and we are not satisfied, under s 68(1)(d) of the GA Act, that PP 'is otherwise suitable to act as the administrator' of Mrs LP's estate.
No other person has been proposed as administrator, other than the Public Trustee. In our view, the Public Trustee should be appointed as plenary administrator of the estate of Mrs LP.
When should the administration order be reviewed?
Section 84 of the GA Act states as follows:
The State Administrative Tribunal shall —
(a)when it makes a guardianship order or an administration order or any order amending, continuing or replacing an order specify a period, not exceeding 5 years from the date of the order, within which the order shall be reviewed; and
(b)ensure that the order is reviewed accordingly.
Mrs LP's mental disability is unlikely to improve. In our view, the administration order should be reviewed within five years.
Can the Tribunal make an order requiring keys to be provided to the front door of the residential property and access to Mrs LP?
As indicated earlier, in her 'position statement' on 5 February 2020, the applicant proposed that the Tribunal should make:[194]
[A]n order which requires keys to the front door [of the residential property] and access to [Mrs LP] to be afforded to her children[.]
[194] Exhibit 7.
As the position statement acknowledges, PP's siblings currently have keys to the front door of the residential property and have access to their mother while she resides at the residential property. As the presumption of capacity has not been displaced in relation to Mrs LP's ability to make reasonable decisions concerning her personal circumstances, including whether she should have contact with any of her children, she is able to make such decisions for herself.
Furthermore, and in any case, the Tribunal does not have power, even in a case where it makes a guardianship order, to make an order of the nature sought by the applicant. Even where the Tribunal makes a guardianship order and confers decision-making authority on the guardian in relation to contact, it is for the guardian, and not the Tribunal, to oversee arrangements in relation to contact.
Conclusion, declaration and orders
It follows that the outcome of the review is that:
•the application for a guardianship order for Mrs LP should be dismissed;
•a plenary administration order, appointing the Public Trustee as plenary administrator of the estate of Mrs LP, should be made under s 64 of the GA Act; and in consequence,
•the EPA should be revoked under s 108(1a) of the GA Act.
Pursuant to s 64(1) of the GA Act, the Tribunal declares that the represented person, Mrs [LP], is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)is in need of an administrator of her estate.
The Tribunal makes the following orders:
1.The application for a guardianship order in relation to the proposed represented person is dismissed.
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all of the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.Pursuant to s 108(1a) of the Guardianship and Administration Act 1990 (WA), the Enduring Power of Attorney dated 21 July 2017 by which the represented person appointed [PP] as her enduring attorney is revoked.
4.Pursuant to s 69(1) of the Guardianship and Administration Act 1990 (WA), the administrator is directed to make enquiries to ascertain the extent of the estate of the represented person, including any beneficial interest she may have in a property at [location of investment property].
5.The administration order is to be reviewed within five years of the date of this order.
6.The Tribunal is to provide to the Public Trustee a copy of all exhibits and transcripts of hearing in this proceeding.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate to the Honourable Judge Parry4 MARCH 2020
'The principal reason why the European system has attractions for some critics of the adversarial system is that control lies more in the hands of the judges and because the European courts are said to have as their object the investigation of the truth. Within the adversarial system, despite some statements to the contrary, the function of the courts is not to pursue the truth but to decide on the cases presented by the parties.' 8.
In this article, Sir Anthony Mason also made the following observations:
'There is a definite place for some tribunals to be cast in the European mould, with a departmental officer as member of the tribunal, so that the tribunal can work in conjunction with an investigation officer; in other words, there are some administrative functions in which the European model can be adapted to tribunals. I hasten to add, however, that I do not suggest that all tribunal proceedings should conform to such a model. It is a matter of tailoring a model to suit the function, which is to be discharged.' 14.
Although, in guardianship and administration proceedings, SAT's procedures bear some of the characteristics of the European judicial system, by allowing parties to present their own cases, call evidence and crossexamine witnesses, SAT's procedures also bear some of the characteristics of the Anglo-Australian adversarial judicial system. While the Tribunal's approach in guardianship and administration proceedings might therefore be termed a 'hybrid inquisitorial-adversarial' model, we prefer the term 'investigative' as it more clearly describes the nature of these proceedings.