M
[2008] WASAT 262
•7 NOVEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: M [2008] WASAT 262
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)
MR J MANSVELD (MEMBER)
HEARD: 28, 29 AND 30 OCTOBER 2008
DELIVERED : 7 NOVEMBER 2008
FILE NO/S: GAA 1454 of 2008
GAA 2082 of 2008
BETWEEN: G
Applicant
AND
E
Interested PersonM
Proposed Represented Person
Catchwords:
Administration - Proposed represented person incapable of managing her affairs by reason of dementia - Need for someone with lawful authority to act on her behalf - Intense conflict between her sons - Relatively complex estate - Whether enduring power of attorney a less restrictive means of meeting needs - Conflict of interest - Son donee of enduring power of attorney failed to appreciate the obligations of an attorney - Even if no conflict of interest for the attorney, conflict between sons made it unworkable for him to act as attorney or administrator - Consideration of wishes of proposed represented person - Public Trustee appointed plenary administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 64(1), s 68, s 77, s 82, s 97(1)(b)(iii), s 107, s 108(1)(a), s 108(1a), s 109(1)(c)
State Administrative Tribunal Act 2004 (WA), s 90
Result:
Enduring power of attorney revoked and Public Trustee appointed plenary administrator
Category: B
Representation:
Counsel:
Applicant: Mr J Hammond
Interested Person : Mr R Butcher
Proposed Represented Person : Mr D Cooper
Solicitors:
Applicant: Hammond Worthington
Interested Person : Butcher Paull & Calder
Proposed Represented Person : Cooper Legal
Case(s) referred to in decision(s):
Hospital Products Limited v United States Surgical Corporation and Others (1984) 156 CLR 41
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
M was an elderly woman who spoke little English. Her husband had died and her sons, G and E, were in dispute over the management of her financial affairs. Her estate included residential properties, interests in a family company and family trust, and she was a party to, or had an interest in, various legal proceedings including proceedings against her for default on a loan for which her investment property was security.
G lodged applications under the Guardianship and Administration Act 1990 (WA) for orders revoking enduring powers of attorney (EPA) made by M and appointing the Public Trustee her administrator.
M and E maintained that she was capable of managing her estate.
The Tribunal found, on the evidence of three geriatricians and M's general practitioner, that she was unable, by reason of dementia, to make reasonable judgments about her estate and that she needed someone with lawful authority to act on her behalf.
The Tribunal was not satisfied that it was in M's best interests for E to manage her estate. In many respects their property and interests overlapped. M had transferred substantial assets to E in circumstances in which her understanding of the transactions was questionable, and she had executed a new will under which E was the sole beneficiary.
E maintained these transactions reflected M's wishes and were necessary to protect her property from dealings by G. However, he did not recognise any conflict of interest involved in his dealings with M's estate or her need for independent legal advice and representation. The Tribunal was not satisfied that he appreciated sufficiently the obligations on an attorney or that it was in M's best interests that he manage her estate pursuant to an EPA or as her administrator.
The Tribunal accepted that M's wish would be for her private affairs to be managed by one or both of her sons and not by someone outside the family. However, the conflict between G and E was such that neither was willing to put it aside in their mother's interests. Managing her estate would involve communication and negotiation between G and E. Even if E had been otherwise suitable to act pursuant to an EPA or as administrator, the intense conflict would make the arrangement unworkable.
The Tribunal appointed the Public Trustee plenary administrator for M for two years in the hope that G and E might resolve the conflict in that time and that M's wishes might then be given effect.
Background
M's husband died in 2004. She is 78 years old and speaks little English. She has two sons, G and E, who are parties to these proceedings.
The proceedings concern applications by G for orders under the Guardianship and Administration Act 1990 (WA) (the Act) concerning the management of M's estate. He seeks:
i)an order under s 109(1)(c) revoking an enduring power of attorney (EPA) made by M on 19 July 2005 by which she appointed G and E her joint and several attorneys;
ii)an order under s 109(1)(c) revoking an EPA made by M on 5 November 2007 by which she appointed E her sole attorney; and
iii)orders under s 64(1) declaring M incapable by reason of mental disability of making reasonable judgments concerning her estate, and appointing the Public Trustee her administrator.
The Tribunal is satisfied that G has a proper interest in the matter for the purposes of bringing the application concerning the EPAs.
Both applications are opposed by M and E who maintain that she is capable of managing her affairs.
On 11 September 2008, after lodging his applications, G asked the Tribunal for injunctive relief pursuant to s 90 of the State Administrative Tribunal Act 2004 (WA) restraining E from dealing with their mother's estate and restraining any purported dealings by M. That application was refused by Her Honour Judge Eckert on 22 September 2008. However, E gave an undertaking not to exercise his authority under the EPA pending the final determination of these proceedings, without the consent of G.
The applications were heard by the Tribunal on 28 , 29 and 30 October 2008. The Tribunal had before it medical reports, witness statements from family members and others, and extensive documentation about M's estate. It heard oral evidence from the medical practitioners and from E.
As the question of M's capacity is a threshold issue in these proceedings, the Tribunal decided to hear evidence and determine that matter first.
These written reasons comprise reasons delivered orally on 29 October 2008 concerning M's capacity amended only to correct grammar, clarify meaning and remove any information that might identify the parties; and reasons delivered in writing on 7 November 2008 concerning the other issues.
The issues
Parties agree that the issues for determination by the Tribunal are:
i)whether M is unable, by reason of mental disability of making reasonable judgments about any or all of her estate;
ii)if she is unable, by reason of mental disability of making reasonable judgments about any or all of her estate, whether she is in need of an administrator;
iii)in determining the second question, whether there is a means by which any needs could be met which would be less restrictive of her freedom of decision and action than the appointment of an administrator;
iv)in determining whether the EPA by which M appointed E her attorney would be a less restrictive means of meeting her needs, whether it is operating in her best interests; and
(v)if the EPA is not operating in M's best interests, and if she is in need of an administrator, who should be appointed.
M's capacity to manage her estate
The Tribunal has received written reports, and heard oral evidence from, four doctors about M's capacity to manage her financial affairs for herself.
G and E have provided witness statements and each has submitted witness statements from others. The Tribunal considers, and parties have agreed, that it is not necessary to put the others to cross-examination on the issue of M's capacity. None is qualified to offer a professional assessment of her capacity and none of the family members is an independent or disinterested party. For the purposes of determining M's capacity to make reasonable judgments about her estate, the Tribunal places no weight on the untested witness statements.
We are satisfied that we are able, on the evidence before us, to reach a determination about M's capacity at this point and that we should do so.
Principles to be observed
In determining proceedings under the Act, the Tribunal must observe the principles set out in s 4(2). In particular, M is presumed to be capable of looking after her own health and safety; of making reasonable judgments in matters relating to her person; of managing her own affairs; and of making reasonable judgments in respect of matters relating to her estate until the contrary is proved to the satisfaction of the Tribunal.
Evidence about M's capacity to make reasonable judgments about her estate
The Tribunal has heard evidence from three doctors who are specialists in the field of geriatric medicine and from M's general practitioner of approximately 11 years.
Evidence of Dr F
Dr F is a consultant psychiatrist whose qualifications in the psychiatry of old age and considerable experience in medical-legal cases are undisputed.
Dr F saw M on 26 September 2008 at the request of Hammond Worthington, solicitors for G, who provided him with a brief letter to the effect of asking him to assess whether M suffers from 'dementia and/or Alzheimer's disease'.
M was accompanied to the appointment by G. He remained outside during the interview which lasted one to one and a quarter hours. At the end of the interview, Dr F spoke with G for about 15 minutes to gather information about his mother's estate but G was not otherwise involved in the interview.
M speaks little English and an interpreter was present. However, Dr F was able to conduct most of the interview in Italian which is his first language. The Tribunal understands that M's language is Sicilian Italian but Dr F gave evidence that they understood each other completely, and there is no evidence that they did not.
Dr F tested M by means of a Mini Mental State Examination (MMSE) which is a well-recognised tool for assessing memory loss and cognitive disturbance. He adapted the test to take account of M's age and cultural background. She scored 11 points, although Dr F gave evidence that this partly reflected that he did not ask her all of the questions usually asked in the test; allowing for three additional questions, her score might have been 14. (We note that this accounts for three unasked questions when in fact Dr F clarified later that he did not ask four of the usual questions.)
Dr F gave evidence that he believed M at times avoided his questions which he took to be her way of 'covering up' her poor memory and inability to answer. She could not tell him her age; the day, date or year of the interview; the date her husband died; the ages of her sons; her full address; and she said she did not think she had executed an EPA. Dr F did not believe this, or her low MMSE score, could be attributed solely to her evident anxiety during much of the interview or to her lack of formal education.
Dr F describes dementia as 'classically, islands of memory in a sea of forgetfulness' and says a diagnosis of dementia is not necessarily inconsistent with the ability to recall the names of family members, to engage in coherent conversation or to perform daily activities such as cooking for oneself.
Dr F told the Tribunal he has no doubt that M has dementia, likely to be of an Alzheimer's type, which is 'at least moderate', or that she is incapable of managing her financial affairs. He bases his view not only on her MMSE score but on the whole interview. For instance, while she could broadly describe her properties, she had no idea of their value and she could only broadly describe other aspects of her finances.
Given the complexity of her estate, Dr F did not think M had sufficient grasp, even in general terms, to be capable of making reasonable judgments about it for herself; her memory impairment affected her capacity to remember details and to manipulate facts, both of which would be important to managing her estate. M's apparent ability to care for herself at home is not, in his view, inconsistent with his assessment of dementia.
Evidence of Dr R
Dr R, a consultant psychiatrist, saw M on 30 July 2008 at the request of her general practitioner, Dr A, for an assessment of her mental capacity. As well as a brief referral letter from Dr A, Dr R had been given information about M's estate which he told the Tribunal might have come from Dr A.
E accompanied M to the appointment and was present throughout although, for the latter part, he sat in the background. The interview lasted approximately one hour and was conducted at first in English and then in Italian. There is no evidence that M and Dr R had any difficulty understanding each other.
In a report dated 30 July 2008 (for reasons which are not clear, his copy is dated 31 July 2008), Dr R outlines M's personal history and details of her financial affairs. He clarified for the Tribunal that much, if not most, of this information was provided by E at the appointment, although he confirmed parts of it with M herself.
Dr R gave evidence that he abandoned an MMSE when M became anxious. However, he concluded that he could find no evidence of a morbid psychiatric disorder or significant impairment of her testamentary capacity or capacity to execute an enduring power of attorney.
Asked his opinion about the different conclusion reached by Dr F, Dr R told the Tribunal that the information he obtained did not enable him to reach the same conclusion of moderate dementia. However, he acknowledged that Dr F did more extensive testing and agreed that he could not contradict his findings on the information he had. Nor was he in a position to contradict the opinion of Dr C (who reached a similar conclusion as Dr F).
Dr R explained to the Tribunal that his 'brief' was confined to assessing M's testamentary capacity and her capacity to execute an enduring power of attorney, and he assessed her as capable of both. However, his assessment did not encompass the broader question of her capacity to manage, or make reasonable judgments about, her estate, which involves a higher order task. He gave evidence that it is quite possible for a person to be capable of making a will or executing an enduring power of attorney, but not of managing her financial affairs.
Dr R acknowledged the possibility that M has Alzheimer's disease. Pressed by the Tribunal, he gave his impression of her capacity to manage her estate and we note that he stressed it was speculation only. He said, however, that while she managed to explain core issues relating to her estate, she could barely convince him that she had a grasp of the issues; he would be surprised if she could manage her estate on her own and it was unlikely she could do so.
Evidence of Dr C
Dr C is a consultant geriatrician with 20 years experience in aged care. He saw M on 3 October 2008 at the request of Hammond Worthington. The interview was conducted through an interpreter and lasted approximately 90 minutes. G accompanied her to the appointment but waited outside throughout.
Prior to the interview, Dr C had requested, and received from Hammond Worthington, an outline of these proceedings and proceedings currently before the Supreme Court, and a brief statement of M's assets.
Dr C administered the Rowland Universal Dementia Assessment Scale (RUDAS), a test similar to the MMSE but more culturally sensitive and adjusted for non-English speaking people. M scored 12/30. Dr C told the Tribunal that a score of 30/30 is 'normal'. M's score indicated to him a significant impairment of brain function. She had very little knowledge of her affairs and struggled to give him information about her circumstances. For instance, asked about the transfer of a halfshare of her primary residence to E in late 2007, M told him she gave it equally to her sons. She could not tell him if she had executed an EPA.
Dr C thought it likely that M has been unable to manage her estate for some time - years, rather than months - including because her low RUDAS score suggested her cognitive deficits had been present for some time. Under crossexamination he agreed that it is in the nature of dementia that a person can have good and bad days, but he thought it unlikely M would fluctuate so much that she could manage her financial affairs one week but not the next.
Dr C conceded that cognitive tests can be affected by anxiety but said that most people are anxious when undergoing such tests and doctors learn to interpret results in that light; as well, he considered that he established rapport quite quickly with M. To that extent, any anxiety M felt at the interview would not have affected her result.
Dr C told the Tribunal that his assessment was 'sub-optimal' because of the haste with which it was necessarily done (for this hearing), but he was reasonably confident of his diagnosis of Alzheimer's disease and he noted that, while two other assessments (those of Drs R and A) were fairly cursory, the other thorough assessment, by Dr F, concurred with his.
Evidence of Dr A
Dr A has been M's general practitioner for some 11 years. He sees her approximately every three to four months, usually accompanied by E. He has no expertise in geriatric care. He has been E's general practitioner for around 17 years.
Although in two brief written reports to the Tribunal, including one dated 28 October 2008, Dr A indicates that M is capable of making reasonable judgments about her financial affairs, he does not dispute the findings of Dr F or Dr C. He gave evidence that it is possible, and likely, that M has a degree of dementia which he would describe as 'mild to moderate towards moderate'.
In the past, Dr A prescribed a memory-improving medication for M but considered it no longer necessary after the depression she experienced following her husband's death lifted. However, he has noticed some deterioration in her memory over recent months. He described memory loss as 'a gradual thing' and conceded that his report dated 28 October 2008 should say M's memory impairment is progressive rather than static.
Submissions concerning capacity
M told Dr F that all was well between her sons. It is submitted for G that this is evidence of her lack of capacity given the evident dispute between them. However, Dr F told the Tribunal that he would not be surprised at an elderly Italian lady's reluctance to disclose embarrassing family matters and we place no weight on this matter in determining M's capacity.
It is also submitted for G that we should take into account matters pleaded by M in defence to current proceedings against her in the Supreme Court. In particular, she pleads that she is under a 'special disability' by reason of her lack of English, that she is elderly and that she has no commercial background or experience. However, 'special disability' has a particular meaning in that context and we do not rely on it, or the matters pleaded in relation to it, in reaching our findings.
It is submitted for M and E that her results on the tests administered by Drs F and C were affected by her anxiety and by the fact that she did not know she was seeing Dr C for a capacity assessment and was, in effect, ambushed. It is submitted that her poor test results should therefore be discounted.
It is not difficult to imagine the anxiety M would have felt, but both Dr F and Dr C clearly recognised her anxiety during their assessments. Further, Dr F gave evidence that she was otherwise engaged and not distressed, and Dr C said he believed he was able to establish rapport with M quite quickly. Both gave evidence that their assessments were based on their whole interviews and not on the test results, or M's inability to recall details such as her address, alone. We do not accept that we should discount or disregard her score results for this reason.
Findings regarding capacity
The ability to make reasonable judgments concerning financial affairs is relative to their complexity. M's financial affairs involve ownership of several properties; a loan account in excess of $2 million in a family trust; an interest in a family company; approximately $80,000 in a bank account and $5,000 in cash at her home; income from rent; an interest in her late husband's estate which is the subject of some dispute with the executor; she is the defendant to proceedings in the Supreme Court; and G has recently commenced proceedings to wind up the family company.
We have heard, and accept, the evidence of Dr F and Dr C, both specialists in geriatric care, that M has dementia, the severity of which is probably moderate. Both conclude that her impairment affects her ability to make reasonable judgments about her estate because of the nature of the cognitive capacity required to do so and the effect of her impairment on, for instance, her ability to remember information about her estate and manipulate facts for the higher order functions required.
The evidence of Drs F and C is not contradicted by the other doctors. Where the evidence of Dr R, who is a specialist in the same field, differs from Drs F and C, it is essentially because he assessed M for a different purpose which he agrees involves a lower order task. Nothing in his opinion is inconsistent with Drs F and C as to her capacity to manage her estate.
Even Dr A, whose written reports indicate that M is capable of making reasonable judgments about her financial affairs, gave oral evidence that it is likely that she has dementia and he does not dispute the conclusions reached by Dr F and Dr C.
It was submitted for G that Dr R's report is tainted by information provided to him by E through Dr A which was prejudicial to G. However, given Dr A's concession about M's cognitive impairment, nothing turns on this.
Mental disability is defined by s 3 of the Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia. We are satisfied, and find, that M has a mental disability, being dementia, probably of Alzheimer's type, by reason of which she is now unable to make reasonable judgments about all of her estate.
Need for an administrator
It does not necessarily follow from a finding of inability to make reasonable judgments about an estate that a person is in need of an administrator. For instance, the estate may be simple, or measures already in place may meet the need for someone with formal authority to act. However, we do not accept that M's estate is simple, or so simple that she is able to manage it herself. We are satisfied that she needs someone with lawful authority to act on her behalf.
Whereas a declaration under s 64(1) of the Act renders a represented person largely incapable of dealing with her estate (see s 77) and is therefore restrictive of decision-making and action, an EPA does not have the same effect. It may therefore operate as a less restrictive means of meeting a person's needs and must be considered in determining whether she is in need of an administrator.
Conflict between M's sons
It is common ground that G and E are engaged in a bitter dispute over the management of their mother's affairs. Apparently it was not always so: they were originally appointed M's attorney jointly and G was appointed sole executor of their late father's estate, apparently with E's agreement. According to E, they fell out in 2007 when he discovered what he alleges to be fraudulent dealings by G following their father's death.
The origins of the dispute no longer matter. It is intense and without any apparent prospect of resolution. The brothers no longer communicate except through their solicitors and on one occasion they came to blows. There is no trust or willingness to communicate or negotiate even where their mother's interests are concerned. The extent of their conflict is evident in the fact that neither would authorise a direct debit to enable payment of $1,600 owed at the time by M pursuant to a loan agreement for which her investment property is security. That refusal led directly to Supreme Court proceedings against her. There is no suggestion that either could not afford the payment, and either could have authorised the direct debit. The proceedings remain on foot and M's investment property remains at risk. As E conceded in oral evidence, M is caught in the crossfire in a bitter ongoing dispute.
In his witness statement, E alleges dishonest dealings by G directly or indirectly affecting their mother's estate. He maintains that any questionable transactions of his own were genuine and reasonable responses aimed at protecting his mother's estate from dealings by G. As G is not proposing he be appointed to manage their mother's affairs, it is not necessary to deal with the allegations further other than to note his counsel's objection to those statements as irrelevant.
The enduring powers of attorney
M has executed two EPAs. By the first, made on 19 July 2005, she appointed G and E her joint and several attorneys. The second EPA was made on 5 November 2007 and appointed E her sole attorney. Both EPAs have been registered with Landgate. M does not appear to have formally revoked the earlier EPA.
E maintains that M is capable of expressing her wishes and instructing solicitors about matters concerning her estate; he has therefore used his authority as attorney for limited purposes only, principally in connection with Medicare payments. We note that Dr A appeared to recognise E's authority as attorney when he declined to act on G's requests for M to be assessed by an Aged Care Assessment Team. However, it is not necessary to make findings here as to the extent to which the EPA has been used.
It is submitted for G that the Tribunal should not allow the more recent EPA to stand because Dr F and Dr C gave evidence that M could not recall making an EPA. We do not accept that proposition. It is in the nature of an EPA that it may not come into effect, or be acted upon, until a person no longer has capacity to act for themselves.
Given Dr C's evidence that he thought M might have had dementia for some time, there may be some doubt as to her capacity to have executed the EPA. However, we do not consider there is sufficient evidence before us to displace the presumption of capacity. We therefore proceed on the basis that the more recent EPA was validly made. The question is whether it is in her best interests for her estate to be managed by E as attorney.
Whether it is in M's best interests for the EPA to operate
G maintains that E should not be allowed to manage their mother's finances pursuant to the EPA, firstly because he is in a position of conflict of interest incompatible with his obligations as donee and, secondly, because the nature and extent of the conflict between them makes it impossible for him to act effectively on her behalf. He cites the following in particular.
Transfer of interest in primary residence to E
In December 2007, M transferred a half-share in her primary residence to E as joint tenant for no consideration. E accompanied her to the solicitor who prepared the transfer and paid his account.
G maintains that E acted in his own interests to the detriment of his mother, in particular because he accompanied her to the solicitor who drew up the transfer, she did not have independent legal advice, and it is unlikely she understood the nature of the transaction.
E maintains that the transfer was done to protect his mother's property from dealings by G; he paid the stamp duty of $70,000 on the transfer and, in any event, his mother wanted him to have the property because their father left a property in Italy to his brother in their father's will. He offers to transfer it to her fully 'tomorrow'.
Transfer of interest in family company
Also in 2007, M transferred her share in the family company, which is the trustee for the family trust, to E for no consideration. E arranged the transfer which he describes as necessary because 'we had to stop [G] from signing' documents on her behalf and to 'get him out' of the family company. He told the Tribunal that the transaction was explained to M through an interpreter.
E maintains this transfer was also to protect his mother's interests from dealings by G.
M's will
The copy of Dr R's report provided to the Tribunal by M's solicitors had a portion excised. On questioning by the Tribunal, Dr R read that part from the original. It referred to the fact that M had executed a new will in 2007 under which E is her sole beneficiary. E told the Tribunal that this reference was excised at his mother's request because she did not want G to know about the new will.
E gave evidence that he took his mother, at her request, to the solicitor who drew up the new will. He paid the solicitor's account and did not recoup the cost from his mother.
The applicant submits that, as sole beneficiary of M's will, E has a conflict of interest in his dealings with her estate, in particular with her primary residence. E disputes this and says the will merely reflects his mother's wishes.
Mortgage over the primary residence
In about September 2008, a loan was taken out over 30 years secured by a mortgage over M's home (now jointly owned with E). The loan of $2.2 million is in their joint names. The mortgage documents show that the loan was for 'investment'.
E gave evidence that he suggested the loan and made the necessary arrangements; the purpose was to encumber the property so that G could not deal with it and so that his mother would have access to funds if she ever needed them. He says the loan documents were read to her by an interpreter but he could not recall if it was read in full. He could not explain why she would need such a large sum of money other than, possibly, to repay the loan secured by her investment property should the proceedings against her succeed.
Cash held in joint names
E gave evidence that a sum of $80,000 belonging to his mother has been placed in a bank account in their joint names, also to put it beyond the reach of his brother. His mother has approximately $5,000 in cash in a safe which he installed for her in her house. They both have keys to the safe but it appears the money is not used, even to meet the $1,600 outstanding under the loan secured against her investment property.
General management of money
E and his immediate family help M with her banking, shopping and cleaning. He also collects rent of $250 in cash each week from tenants of the investment property which he gives to his mother. He estimates the property is worth $1.2 to $1.5 million. He concedes that the rent may be low but says the family has been there for a long time and it reflects the condition of the property. He has asked them several times to increase the rent but apparently without success.
E gave evidence that he has spent approximately $60,000 on renovations for M's home since his father died. He says he has invoices but has not recouped the cost from her; he has asked G to pay the cost from the family trust but G has refused.
Legal advice
It was put to E that G's solicitors had written to his solicitor (who at the time also acted for M) stating their view that her capacity should be independently assessed and that she should have separate legal advice.
There is no evidence of independent legal or financial advice, and E does not appear to appreciate the importance of that and separating their interests. It is also evident that any explanations to her of documents she was signing were, at best, in general terms and that she was unlikely to have understood them at the best of times.
At different times, E instructed the same solicitors as were acting for M. It was clear, from his oral evidence, that often he did not distinguish whether instructions were being given by himself as an individual or as director of the family company, by his mother, or by him on behalf of his mother. He seems to not appreciate or differentiate in any way his mother's interests from his own. Even if their interests do coincide, he cannot see hers as separate from his. E is paying the accounts from M's solicitor in the current proceedings.
Legal proceedings
M is a party to, or has an interest in, various legal proceedings including the current Supreme Court proceedings against her for default on a loan. In her defence, filed with the Court, M alleges that the signature on the loan documents is not hers. E alleges G forged her signature. E appears to have been providing instructions on M's behalf.
Default notices in relation to another loan of $1.69 million have been served against the family company naming M as a respondent and describing her as a guarantor. Counsel for M maintains that she is incorrectly joined and the claim against her must fail.
G has now commenced proceedings to wind up the family company. E has not shown M the documents because, he says, she would not understand them.
Submission as to directions
It is submitted for E that any conflict of interest as donee is more perceived than actual and could be dealt with by way of directions from the Tribunal as to performance of his functions as donee.
Submissions of the Public Advocate
The Tribunal asked the Public Advocate, pursuant to s 97(1)(b)(iii) of the Act, to investigate and report on matters including whether revocation or variation of the EPA would be in M's best interests and what her views and wishes are.
A representative of the Public Advocate spoke to M in her home where she expressed her strong desire for her family business to remain private and for one or both of her sons to manage her affairs.
The Public Advocate submits that, in light of the evidence before the Tribunal, it is in M's best interests that an independent administrator be appointed and, in the absence of any alternative, that the Public Trustee be appointed. In particular, she says, managing M's complex estate requires communication and negotiation between G and E which the conflict between them makes unworkable except by an independent person. The Public Advocate suggests a plenary appointment for two years.
Reasons for decision
For the following reasons, the Tribunal is not satisfied that it is in M's best interests that E manage her financial affairs, either by means of the EPA or as administrator.
Section 107 of the Act provides that the donee of an EPA shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor. The relationship is one of trust and confidence. The donee, as fiduciary, is bound to act in the best interests of the donor to the exclusion of his own. In Hospital Products Limited v United States Surgical Corporation and Others (1984) 156 CLR 41, Gibbs CJ said at [67]:
A person who occupies a fiduciary position may not use that position to gain a profit or advantage for himself, nor may he obtain a benefit by entering into a transaction in conflict with his fiduciary duty, without the informed consent of the person to whom he owes the duty.
Section 68 of the Act provides that an administrator shall be someone who will act in the best interests of the person concerned and who is otherwise suitable to act as administrator of their estate.
The mere fact that E is a beneficiary of M's will does not, in our view, preclude him from acting as her attorney but it underlines the extent to which their interests coincide and may conflict.
In arranging the transfer of his mother's interests to himself, E may have honestly believed that doing so would protect her property from dealings by G. However, he profited directly from those transactions. He did not arrange for M to have independent advice, even after the solicitors for G had put him on notice of their concerns about her lack of independent advice. He appears not to differentiate his interests from those of his mother.
Given M's apparent lack of experience and understanding of commercial matters, it is unlikely to have been her idea to transfer interests to E but, even if it was, he appears still not to have appreciated the need to separate his mother's affairs and interests from his. The Tribunal is not satisfied that he would do so in future.
Managing M's estate in her best interests will involve a wide range of matters including establishing the full nature, extent and location of her property and interests; responding to legal proceedings to which E also is a party or has an interest; and other matters such as determining whether the rent from the tenanted property is adequate.
It is submitted for M that she is incorrectly named as a respondent to the proceedings against the family company and any claim against her must fail but that does not answer the conflict that E might have if acting on her behalf. He is also a party to those proceedings and, even if their interests coincide, he would still be required as attorney or administrator to recognise any conflict of interest and put M's interests before his own. We are not satisfied that he would necessarily be able to do so.
M has an interest in the proceedings commenced by G to wind up the family company and needs someone independent who can decide how to responded. We are not satisfied that E could put aside the conflict with G and act solely on M's behalf.
A further matter which anyone acting on M's behalf will need to consider is whether any action should be taken to reverse the transfer of her interests to E. Section 82 of the Act provides that an administrator may apply for an order setting aside certain transactions entered into within two months prior to a declaration of incapacity and there may be other action open to an administrator or attorney. E's interests would conflict directly with his mother's in relation to her principal residence and may conflict in relation to the family company.
We have considered whether the conflict of interest could be dealt with by means of directions to E as to performance of his functions as attorney so as to give effect to M's wishes. We are not satisfied that it can. The complexity of M's estate, the number of matters including legal proceedings in which he would be required to deal with on her behalf and the conflict with G would likely require such extensive directions that he could be effectively unable to exercise his own authority.
Even if other conflicts of interest did not exist or could be overcome, the conflict between G and E itself creates a conflict of interest for E. The dispute drives all their dealings with each other and it would be unworkable for E to act for his mother, whether as attorney or administrator. E would inevitably have to communicate and negotiate with his brother about her affairs if he is to act on her behalf. Plainly, that will not happen.
The mere fact that parties are in conflict does not mean that an independent administrator should be appointed. However, in this case, the conflict is such that neither can see beyond it to their mother's best interests. For instance, the Supreme Court action against her is the direct outcome of their refusal to put her interests above the conflict.
M's wishes
Section 4(2)(f) of the Act obliges the Tribunal to seek to ascertain, as far as possible, M's views and wishes as expressed, in whatever manner, at present or as gathered from her previous actions.
M declined to attend the hearing and the Tribunal decided against requiring her to do so. The Tribunal as presently constituted has therefore not been able to hear from her directly. However, it is satisfied that her preference would be for her sons to manage her affairs equally. She expressed this wish to Her Honour Judge Eckert at the hearing of the injunction application, to the Public Advocate and to Dr F and Dr C. Neither of her sons disputes this would be her wish.
The Tribunal's main concern must be M's best interests and her views and wishes, while an important consideration, cannot be the determining consideration. Unfortunately, the degree of conflict between G and E means acting together is simply not practicable.
The Tribunal accepts E's evidence that M's second preference would be for him to manage her affairs rather than someone outside the family. However, for the reasons we have set out above, we are not satisfied that would be in her best interests.
Conclusion
In the absence of any other person suitable and willing to be appointed administrator for M, there is no option other than to appoint the Public Trustee administrator for M.
The range of authority that will be required makes a plenary appointment appropriate. The appointment will be for two years at the end of which it is to be hoped that the conflict may have abated and M's wishes can be given effect.
Where it makes an administration order, the Tribunal shall revoke an EPA where its continued operation would be inconsistent with the functions of the administrator: s 108(1)(a) and s 108(1a).
In the Tribunal's view, the continued existence of the EPA would be inconsistent with the broad range of functions and powers that the independent administrator will need to exercise. We therefore revoke the EPA made by M on 5 November 2007 appointing E her attorney.
It is not suggested that the EPA made on 19 July 2005 appointing G and E joint and several attorneys is being acted on but, to put the matter beyond question, we revoke that EPA as well.
Orders
1.The Tribunal declares that M is:
(a)unable, by reason of mental disability, of making reasonable judgments about her estate; and
(b) is in need of an administrator.
2.The Tribunal appoints the Public Trustee of 565 Hay Street, Perth, Western Australia, plenary administrator for M.
3.The appointment of the Public Trustee will be reviewed by 7 November 2010.
4.The enduring power of attorney made by M on 5 November 2007 by which she appointed E her attorney is revoked.
5.The enduring power of attorney made by M on 19 July 2005 by which she appointed G and E her joint and several attorneys is revoked.
I certify that this and the preceding [112] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: M [2008] WASAT 262 (S)
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MR J MANSVELD (MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)
HEARD: 23 MARCH 2009
DELIVERED : 7 NOVEMBER 2008
SUPPLEMENTARY
DECISION :2 APRIL 2009
FILE NO/S: GAA 1454 of 2008
GAA 2082 of 2008
BETWEEN: G
Applicant
AND
E
Respondent
Catchwords:
Application for administration - Public Trustee appointed plenary administrator for mother - Conflict between applicant and brother - Application opposed by mother and brother - Application for costs under s 87(2) State Administrative Tribunal Act 2004 (WA) and s 16(4) Guardianship and Administration Act 1990 (WA) - Factors to be considered in determining costs applications - Whether rule that parties bear own costs should be set aside - Whether applicant's costs should be paid out of his mother's estate - Tribunal not satisfied orders should be made - Application for costs dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 16(1), s 16(4), s 65, s 97(1)(b)(iii)
State Administration Tribunal Act 2004 (WA), s 9, s 32, s 87, s 87(1), s 87(2), s 90
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 427
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr J Hammond
Respondent: Mr R Butcher
Solicitors:
Applicant: Hammond Worthington
Respondent: Butcher Paull & Calder
Case(s) referred to in decision(s):
Chew and Director General of The Department of Education and Training [2006] WASAT 248
LC and JS [2007] WASAT 127
M [2008] WASAT 262
MO and JB [2008] WASAT 228
Re IO; Ex Parte VK [2008] WASAT 8
Summerville and Department of Education & Training [2006] WASAT 368 (S)
Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
G had lodged applications which led to the appointment of an administrator for his mother, M. G was legally represented throughout the proceedings as were M and G's brother, E, both of whom opposed the applications.
At the conclusion of the proceedings, G sought an order under s 87(2) of the State Administrative Tribunal Act 2004 (WA) that E pay his legal costs. Further, or in the alternative, he sought an order under s 16(4) of the Guardianship and Administration Act 1990 (WA) that his costs be paid out of M's assets.
The amount of costs sought was $105,426.88.
The Tribunal was not satisfied there was reason to depart from the rule in s 87(1) of the State Administrative Tribunal Act 2004 (WA) that parties to proceedings before the Tribunal bear their own costs. In particular, it did not accept that the issues for determination concerning M were more complex than most matters in the guardianship and administration jurisdiction such that legal representation was necessary in order to bring and conduct the proceedings in a timely and coherent manner. The proceedings became unnecessarily adversarial and protracted mainly because of the brothers' business dealings and the conflict between them, rather than the complexity of their mother's financial affairs.
The Tribunal was not satisfied that G's legal costs should be paid out of his mother's estate. It was questionable how much he had acted in her interests, as opposed to his own, in bringing the applications. The intensity of the conflict between the brothers was such that they refused to cooperate even where their mother's interests were adversely affected. In all the circumstances, while G was entitled to legal representation before the Tribunal, his mother should not be required to meet his costs.
The Tribunal dismissed the application for costs.
Orders sought
On 7 November 2008, the Tribunal appointed the Public Trustee plenary administrator for M in proceedings commenced by her son, G. M and her other son, E, opposed the applications.
The Tribunal's written reasons were published as M [2008] WASAT 262.
G now seeks an order under s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that E pay his costs incurred in bringing the applications. Further, or in the alternative, he seeks an order pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) (GA Act) that his costs be paid out of M's assets.
The amount of the costs is $105,426.88
Background
M is an elderly woman who speaks little English. Her husband died in 2004. More recently, her sons have become engaged in a bitter dispute over the management of her financial affairs.
On 16 June 2008, G lodged an application for orders:
(i)revoking enduring powers of attorney made by M in 2005 and 2007 by which she had appointed G and E her joint attorneys, and E her sole attorney, respectively;
(ii)declaring M incapable of managing her estate and appointing the Public Trustee her administrator;
(iii)requiring M to be assessed by a suitably qualified medical practitioner to determine whether she was 'in need of a power of attorney'; and
(iv)requiring E to pay G's costs of the application.
M and E opposed the applications. They maintained she was capable of managing her estate. Reports from M's general practitioner and a psychiatrist available at the time of the applications indicated that she was capable.
On 2 July 2008, the Tribunal referred the applications to the Public Advocate for investigation pursuant to s 97(1)(b)(iii) of the GA Act and asked the Public Advocate to provide a written report of her investigation.
At a directions hearing on 5 September 2008, the Tribunal made programming orders. It took the view that it could not require M to attend on a medical practitioner for assessment of her capacity and declined to make the order sought in that regard.
The Tribunal also declined G's request that it make an emergency order pursuant to s 65 of the GA Act. Given that the only medical evidence before the Tribunal indicated that M was capable, and given her opposition to the orders sought, the Tribunal was not satisfied that it was appropriate to make an emergency order.
On 11 September 2008, G sought an injunction pursuant to s 90 of the SAT Act restraining E from dealing with M's estate and restraining any purported dealings by her. On 22 September 2008, Deputy President Judge Eckert refused the application, noting E's undertaking not to act on his power as attorney without G's consent pending final determination of the proceedings.
On 6 October 2008, the Tribunal ordered parties to provide information about M's estate to the Tribunal, the Public Advocate and each other.
A further directions hearing was held on 14 October 2008 and further programming orders made. G's solicitors requested five days be set aside for his witnesses alone. The Tribunal considered the matter could be dealt with in three days and listed it for hearing on 28, 29 and 30 October 2008.
Prior to the final hearing, M attended on and was assessed by another psychiatrist and a geriatrician. Both provided reports to the Tribunal indicating that she lacked the requisite capacity.
The Tribunal delivered its decision and reasons on 7 November 2008. It found that M was unable, by reason of mental disability, to make reasonable judgments about her estate and that she needed someone with lawful authority to act on her behalf.
The Tribunal was not satisfied it was in M's best interests for E to manage her estate pursuant to the more recent EPA. In many respects, their property and interests overlapped; M had transferred substantial assets to E in circumstances in which her understanding of the transactions was questionable, and she had executed a new will under which E was the sole beneficiary. E maintained that he was not acting pursuant to his power as attorney in these transactions which reflected M's wishes and were necessary to protect her property from dealings by G. However, the Tribunal was not satisfied that he appreciated sufficiently the obligations of an attorney or that it was in M's best interests that he manage her estate pursuant to the EPA or as her administrator.
The Tribunal accepted that M wanted her affairs managed by one or both of her sons, and not by someone outside the family. However, G did not propose himself as administrator and, even if E had been otherwise suitable to act pursuant to the EPA or as administrator, the intense conflict would make that arrangement unworkable.
The Tribunal appointed the Public Trustee plenary administrator for M for two years in the hope that G and E might resolve their conflict in that time and that M's wish that her affairs be managed within the family could be given effect.
G was represented throughout the proceedings by Hammond Worthington Lawyers. At the start of the proceedings, Cooper Legal appeared for M and E. Cooper Legal then ceased to act for E and he was represented by Butcher, Paull and Calder.
Legislation
Section 87 of the SAT Act relevantly provides:
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
…
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
The same principle applied under the GA Act prior to the commencement of the Tribunal in January 2005. Section 16(1) of the GA Act provided that parties to proceedings bear their own costs. Section 16(1) was repealed by s 427 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) when the Tribunal commenced.
By s 16(4) of the GA Act, the Tribunal may order that a party's costs be paid by, or out of the assets of, the person whom the proceedings concern:
The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.
G's submissions in support of orders for costs
G says that he required legal representation to do the following:
(i)provide advice as to legal remedies available under the SAT Act and the GA Act;
(ii)prepare, file and serve the applications and extensive supporting evidence;
(iii)prepare, execute and serve six detailed witness statements with exhibits;
(iv)engage and instruct two suitably qualified medical practitioners to assess M's capacity to administer all or part of her estate;
(v)review, collate and prepare all relevant documentation requested by the Tribunal, particularly relating to M's estate, including reviewing 'significantly voluminous documents dating back a number of years';
(vi)prepare, file and serve a responsive statement of the estate of M;
(vii)liaise with legal representatives of E and M and respond to their requests and queries; and
(viii)prepare for, and appear at, various hearings before the Tribunal including directions hearings, an injunction hearing, and a threeday final hearing.
G says the nature and complexity of the applications meant they were conducted by the Tribunal in a manner more formal than contemplated by the SAT Act, and usual for GA Act proceedings, and that this should be taken into account in considering the application for costs.
G submits that the applications involved serious allegations relating to E's involvement in the management of M's estate, in particular:
(i)the transfer of 50% of M's interest in her primary residence and her share in the family company to E for nil consideration;
(ii)the obtaining of a loan, secured over M's primary residence, for the sum of $2 million, arranged by E and for which M and E were jointly liable;
(iii)the removal by E of valuable jewellery from M's home; and
(iv)the recent execution of a new will by M whereby her entire estate was left to E in circumstances in which G alleged she did not have the requisite capacity to execute such a document.
G submits that the history of dealings involving M's estate was detailed and complex and that questionable actions dating back to her husband's death in early 2004 needed to be examined in detail. He submits that the 'contentious and unique factual matrix' involved made it necessary for him to engage legal representation. Further, that in the face of legal representation for E and M, and that he would have suffered severe prejudice without representation as well.
Citing the principles set out in Re IO; Ex Parte VK [2008] WASAT 8 at [29], G submits that it is unlikely that an application would have been made to the Tribunal had he not sought legal advice; he was largely unaware of the remedies available under the GA Act and required legal advice in this regard, and he had not previously been involved in proceedings before the Tribunal.
G submits that the conflict between him and E was of such magnitude that it is highly unlikely that the parties could have presented a coherent case in a reasonable and cooperative manner to the Tribunal without legal assistance and representation. Further, that the nature of the conflict meant he had limited access to information required for the proceedings and, accordingly, without communications between the respective parties' solicitors, matters concerning M's estate would not have been identified clearly for the Tribunal in a coherent and timely manner.
G says he acted in M's best interests in bringing the applications and that it is highly unlikely that another family member would have made a similar application in order to protect M. He says the Tribunal's decision to appoint an administrator bears this out.
G maintains that E's conduct and opposition to the applications prolonged the proceedings, made them more complex and incurred unnecessary costs. In particular, he says:
(i)E refused to allow M to be independently assessed by a suitably qualified medical practitioner despite numerous requests;
(ii)E instructed two firms of solicitors to appear and oppose the applications, resulting in further evidence being required from all parties and significantly increasing the complexity of the hearing;
(iii)E maintained his opposition to the applications in the face of strong and reputable medical evidence, resulting in one and a half days of unnecessary, timeconsuming and costly hearing time;
(iv) E refused to provide information about M's estate, including information relating to her assets, adding unnecessary time and costs.
E's submissions opposing the application for costs
E submits that the fact that G was largely unaware of remedies available under the GA Act and required legal advice in this regard makes him no different from most applicants in this jurisdiction, and nor should it be a factor that G had not been involved in Tribunal proceedings previously. E submits that most applicants are in the same position and the Tribunal was established with self-represented parties in mind and is required to facilitate access by parties without the need for lawyers.
E says an unrepresented person could have raised evidence about the transactions in question in a timely manner, leaving it to the Tribunal's inquisitorial processes to determine the matter in M's best interests; it was not necessary for the parties to engage legal representation. Further, that the allegations concerning M's estate were not so serious, or the matter so complex, that legal representation was required; the case could have been prepared, if necessary, without the aid of legal representatives. He says that, while the facts required consideration, they were not beyond G's personal knowledge. Moreover, the applications did not involve any complex questions of law or legal principle.
E says the fact that M's capacity to manage her affairs was disputed does not make this case unique; similar issues arise commonly in guardianship and administration proceedings especially where the proposed represented person has moderate to significant assets.
E does not dispute that there is intense conflict between himself and G but says it does not necessarily follow that neither could present his case in a coherent and reasoned manner before the Tribunal without legal representation.
E denies that he acted unreasonably in opposing the applications. He says he had reasonable grounds for opposing them in order to ensure that M's interests and wishes were honoured. In particular, he says both he and M believed she was capable of managing her own affairs and that medical opinion at the time offered support for this. Further, that it was M's express wish that one or both of her sons manage her affairs or assist her to do so; if M was found to lack the requisite capacity, then the EPA by which she had appointed him her attorney was a preferred and less restrictive means of meeting her needs and in accordance with her wishes. Finally, the appointment of a third party as administrator was an undesirable result for what was essentially a family problem.
E denies that he refused to allow M to attend on a medical practitioner for an assessment or that he unnecessarily delayed the proceedings. He says it was her decision not to attend for an assessment and that, when an appointment was arranged by G, she attended without any hindrance by him. He denies removing valuables from M's property.
Finally, E submits that the amount of costs sought is manifestly excessive, particularly when compared with his own.
The Public Trustee's submissions
The Public Trustee attended the hearing of the costs application in his capacity as plenary administrator for M.
The Public Trustee submits that M's financial affairs are not particularly complex and says that, at the time of her husband's death in 2004, she was a joint owner with her husband of the family home and the sole beneficiary of his will under which she received the former family home, now an investment property. She had an interest in the family company but played no active role.
The Public Trustee says that, even once E started dealing with M's estate, it was still relatively simple. Transactions such as the transfer of a half share in her property and her share in the family company to E contributed to the dispute between her sons and led ultimately to these proceedings but much of the apparent complexity of her estate was due to her sons' complicated business dealings and related legal proceedings. Matters were complicated in part by the discretionary trust established in 1977 of which G and E were the main beneficiaries. M took no active part in the trust and, in the Public Trustee's submission, it was an investment vehicle for G and E and became the subject of their dispute.
The Public Trustee submits that, in all the circumstances, the Tribunal should not order costs under either Act.
Reasons
For the following reasons the Tribunal is not satisfied that this is an appropriate case in which to order costs under either Act.
The application for costs under s 87(2) of the SAT Act
As s 87(1) of the SAT Act makes clear, the starting point in proceedings before the Tribunal is that parties bear their own costs. This is in keeping with the objectives of the Tribunal as set out in s 9 of the SAT Act and its practice and procedure generally as set out in s 32 of that Act.
The Tribunal has affirmed in a number of cases that it has a broad discretion to award costs in appropriate cases but will need good reason to depart from the rule in s 87(1): see, for example, Summerville and Department of Education & Training [2006] WASAT 368 (S) (Summerville) at [23].
The circumstances in which the Tribunal might make a costs order have been discussed in a number of cases: see, for example, Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341.
In Chew and Director General of The Department of Education and Training [2006] WASAT 248, the Tribunal observed at [85]:
We take the view that in proceedings under the [SAT] Act, the Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.
This statement should not be read as an exhaustive statement of the circumstances in which costs might be ordered but it provides a useful guide: Summerville at [27]; also at [38] and [39].
The Tribunal is not persuaded that legal representation was required in this case in order to reach a decision in M's best interests. That is not to say that parties were not entitled to be represented but whether legal representation was necessary in order to present evidence in a timely and coherent manner as G claims, and whether costs should be ordered, are other matters.
The issues to be determined in respect of M were relatively straightforward but tended to become obscured by her sons' commercial interests. The Tribunal noted in its earlier written reasons at [58] that M's estate was not simple, or at least not so simple that she was able to manage it herself. However, we agree with the Public Trustee that her affairs were not in themselves particularly complex. In proceedings under the GA Act the Tribunal commonly deals with matters involving large and complex estates in which parties represent themselves; many are considerably more complex than here. In this case, if anything, the involvement of legal representatives itself tended to make the matter more adversarial and complex.
The proceedings did not raise any particular point of law or legal principle. In that respect they were no different from most other proceedings in which the Tribunal determines similar applications. Their apparent complexity and the voluminous material submitted to the Tribunal related as much as anything to the brothers' own business dealings and legal proceedings arising out of their conflict. Their refusal to cooperate with each other exacerbated matters.
It is true that the proceedings were more formal than most Tribunal proceedings, especially in the guardianship and administration jurisdiction, but that reflected the way in which G chose to prosecute the applications and the way that the conflict between the brothers played itself out.
We are not satisfied that E's opposition to the applications was such that an order under s 87(2) of the SAT Act is warranted. In particular, we do not accept that the evidence concerning M's capacity to manage her financial affairs was as straightforward as G claims. In the early stages of the proceedings, the only evidence before the Tribunal indicated that M was capable of managing her own affairs.
As late as 27 October 2008, the Public Advocate reported to the Tribunal that she remained unclear as to whether M was able to make reasonable judgments in respect of her estate and the operation of the EPAs and whether she was in need of an administrator. Further, the solicitors for M told the Tribunal they were satisfied they could take instructions from her.
The question of M's capacity to manage her own affairs was a threshold issue in the application for the appointment of the Public Trustee as her administrator. It was also relevant to her capacity to execute the more recent EPA and to understand the transactions in which she had apparently been involved. Particularly given that the EPA might have operated as a less restrictive means of meeting any need for someone to act on her behalf, the Tribunal required clear evidence about her capacity.
We accept that, early in the proceedings, E refused to cooperate with G's request that M attend on a medical practitioner for assessment but we are not satisfied that his conduct was so obstructive as to prolong the proceedings or make them more complex. Two medical reports had indicated she was capable and M herself apparently resisted assessment. E's refusal to cooperate with G's request appears to have been just another symptom of the conflict in which he and G were equal participants.
Parties agreed that M would have wished for her affairs to be managed within the family if necessary. In those circumstances it was not unreasonable for E to oppose G's application for the appointment of the Public Trustee. We note that G did not propose he be appointed administrator even though an appointment within the family would have accorded with M's wishes.
Finally, merely because the Tribunal makes the orders sought by an applicant or determines a matter in a way that might be considered favourable to one or other party is not sufficient reason to order costs in their favour. That approach would undermine the 'own costs' regime specifically adopted by the SAT Act.
The application for costs under s 16(4) of the GA Act
The Tribunal has a broad discretion under s 16(4) to award costs. The provision is wide in its terms with the sole qualification that a party must have acted in the best interests of the person whom proceedings concern. The intention appears to be to ensure that a party is not deterred by the prospect of incurring costs from making an application for a person in need of protection, and that a person who acts in another's best interests does not necessarily bear the costs of doing so.
In most cases, parties act in the best interests of the person whom the proceedings concern. If that were all that were required to satisfy s 16(4), orders would be made in most cases.
As the Tribunal observed in MO and JB [2008] WASAT 228 at [34] [35], s 16(4) must be read in light of s 87(1) of the SAT Act. Read this way, something more than merely acting in best interests will be required before the Tribunal will order a party's costs to be paid by, or out of the estate of, the person whom the proceedings concern. See also LC and JS [2007] WASAT 127 at [35] in which the Tribunal observed that s 16(4) should not operate independently of the cost regime in the SAT Act and the overriding principle that parties bear their own costs.
It is hard to resist the conclusion, from the way in which these proceedings were conducted, that M's interests were a sideshow to the main event which was her sons' business dealings and the conflict between them. In its written reasons at [60] [62] the Tribunal noted that they no longer communicated except through their solicitors and refused to communicate or negotiate even where their mother's interests were concerned. Their refusal to authorise a direct debit to enable payment of $1,600 owed by her on an investment loan had led directly to Supreme Court proceedings against her that had the potential to put her investment property at risk; either could have made the payment but both refused to.
It is by no means clear that G was in fact acting in M's best interests, as opposed to his own, in bringing the applications but, even allowing that he was, we do not consider it appropriate to award costs under s 16(4) of the GA Act. We see no reason why M should meet either party's costs of bringing an application that, with some cooperation, might have been managed without legal representation, very much simplified if not avoided altogether.
Orders
1.The application for costs under s 87(1) of the State Administrative Tribunal Act 2004 (WA) is dismissed.
2.The application for costs under s 16(4) of the Guardianship and Administration Act 1990 (WA) is dismissed.
I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J TOOHEY, SENIOR MEMBER