MB and EM - [2014] WASAT 17

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MB and EM [2014] WASAT 17

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS L EDDY (MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)

HEARD: 23 JANUARY 2014

DELIVERED : 23 JANUARY 2014

PUBLISHED : 17 FEBRUARY 2014

FILE NO/S: GAA 4226 of 2012
GAA 4227 of 2012
GAA 4440 of 2012
GAA 4441 of 2012
GAA 4205 of 2013
GAA 4206 of 2013
GAA 2841 of 2013
GAA 2842 of 2013

BETWEEN: MB
Applicant
AND
EM
Represented Person

Catchwords:

Guardianship and administration - Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) - Single member revoked enduring powers of guardianship and attorney purporting to appoint two of represented person's sisters as her enduring guardians and attorneys and made limited guardianship order and plenary administration order appointing same sisters as limited guardians and plenary administrators for represented person - One limited guardian and plenary administrator passed away - Application for review of guardianship and administration orders in consequence of guardian and administrator's death under s 85(2) of the Guardianship and Administration Act 1990 (WA) - Application under s 16(4) of the Guardianship and Administration Act 1990 (WA) that costs incurred by sisters of represented person in proceeding before single member in which they were appointed as limited guardians and plenary administrators for represented person be paid by, or out of the assets of, represented person - Costs had already been paid from bank account of represented person - Whether Tribunal has power to retrospectively authorise payment of costs - Whether sisters seeking costs acted in best interests of represented person - Whether payment of costs should be ordered in exercise of discretion

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 16(4), s 17A, s 40, s 43(1), s 44(1), s 44(2), s 44(5), s 68(1), s 68(3), s 80, s 84, s 85(1), s 85(2), s 104(1a), s 109, s 110B
State Administrative Tribunal Act 2004 (WA), s 39(1), s 87(2)

Result:

Guardianship and administration orders made appointing two of the represented person's sisters as her limited guardians and plenary administrators
Enduring powers of guardianship and attorney purportedly appointing two of the represented person's other sisters as her enduring guardians and attorneys revoked
Application by two of the represented person's sisters that their costs in proceeding in which they were appointed as limited guardians and plenary administrators of the represented person be paid by, or out of the assets of, the represented person, refused

Summary of Tribunal's decision:

The Tribunal constituted by a single member revoked an enduring power of guardianship and an enduring power of attorney, by which the represented person purported to appoint two of her sisters as her enduring guardians and attorneys, and made a limited guardianship order and a plenary administration order appointing the same sisters as limited guardians and plenary administrators for the represented person. The sisters subsequently made an application under s 16(4) of the Guardianship and Administration Act 1990 (WA) for an order that their costs of the proceeding should be paid by, or out of the assets of, the represented person.
The applicant, who is the cousin of the represented person and who proposed himself to be appointed as her guardian and administrator, sought a review of the member's decision by a Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA). One of the sisters appointed as limited guardians and plenary administrators subsequently died, and the applicant consequently also sought review of the guardianship and administration orders under s 85(2) of the Guardianship and Administration Act 1990.
The applications under s 17A, s 85 and s 16(4) of the Guardianship and Administration Act 1990 were heard concurrently by a Full Tribunal consisting of a Deputy President and two other members. The principal issue in dispute between the applicant and the represented person's siblings was who should be appointed as her guardian and administrator. The applicant said that he should be appointed whereas the siblings said that two of the sisters should be appointed.
The Full Tribunal determined that the sisters, rather than the applicant, should be appointed as limited guardian for the represented person. This is because the applicant has a highly problematic relationship with the staff at the residential care facility where the represented person resides, and this would impact on his ability to effectively communicate with staff who care for the represented person, all of the represented person's siblings support the appointment of the sisters, the represented person has a much closer relationship with the sisters than with the applicant, and the appointment of the sisters accords with the views and wishes of the represented person (to which some weight should be given). The Full Tribunal determined that the sisters, rather than the applicant, should be appointed as plenary administrator for the represented person, because there is a high level of conflict between the applicant and the represented person's sisters who are to be appointed as her limited guardians.
The Tribunal was informed by the sister of the represented person who sought the costs order that her and her late sister's costs had been paid to their legal representative by bank cheques drawn on the represented person's bank account. The application for costs was, therefore, in effect, for retrospective authorisation of the payment of costs by, or out of the assets of, the represented person.
The Tribunal held that it does not have power to make an order retrospectively authorising the payment of a party's costs by, or out of the assets of, a represented person. The Tribunal also determined that, even if it had power to do so, it would decline to make the order sought. Insofar as the costs were incurred in propounding the enduring powers of guardianship and attorney, the sisters seeking costs did not act in the represented person's best interests, as she did not have full legal capacity to execute those instruments. Insofar as the costs were incurred in seeking guardianship and administration orders appointing themselves as guardians and administrators for the represented person, although the sisters acted in the best interests of the represented person, legal representation was not reasonably required in the circumstances of the case such that an order for costs under s 16(4) of the Guardianship and Administration Act 1990 should be made in the exercise of the Tribunal's discretion.

Category: B

Representation:

Counsel:

Applicant: Ms K K (Agent)
Represented Person : In person

Solicitors:

Applicant: N/A
Represented Person : N/A

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

DB and MJB [2013] WASAT 73
MB and EM [2013] WASAT 106

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Three matters in proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act) concerning EM (represented person) were listed for concurrent hearing before a Full Tribunal consisting of a Deputy President and two other members. The represented person is a 69yearold woman with an intellectual disability and diagnoses of developmental delay, frontal lobe syndrome, generalised anxiety disorder and obsessive-compulsive disorder. The represented person lives at [redacted], a residential care facility (residential care facility).
The first matter (proceedings GAA 2841 of 2013 and GAA 2842 of 2013) involves applications brought by MB (applicant), who is the represented person's cousin, under s 17A of the GA Act for review by a Full Tribunal of determinations made by Senior Member M Allen on 5 July 2013 (s17A review applications). In those determinations, the Tribunal revoked an enduring power of guardianship (EPG) and an enduring power of attorney (EPA), purportedly made by the represented person on 15 August 2011 appointing two of her sisters, MM and LB, as her joint enduring guardians and her joint and several attorneys, and in which the Tribunal made guardianship and administration orders appointing MM and LB as joint limited guardians and joint plenary administrators of the represented person: see MB and EM [2013] WASAT 106 (member's reasons). The represented person is one of eight children: seven sisters and one brother.
Under the guardianship order, the functions of the limited guardians are to decide where the represented person is to live and with whom the represented person is to live, to make treatment decisions for the represented person, and to determine the services to which the represented person should have access. Under the guardianship order, the guardians are required to comply with conditions to inform the other siblings of the represented person of any extended absence of the represented person from the residential care facility for medical treatment and of any material change in her physical or mental health, to consult and to take into account the views of the other siblings in relation to any significant decision under the guardianship, and to authorise the residential care facility to provide information to the other siblings.
Under the administration order, the administrators are required to comply with directions that they are to provide to the other siblings of the represented person twice yearly statements of her assets and liabilities and income and expenditure, they are to provide to the other siblings a copy of the accounts submitted each year to the Public Trustee, and they are to consult and to take into account the views of the other siblings in relation to any material financial transaction.
The determinations which the applicant seeks to have reviewed were made by Senior Member Allen in proceedings brought by the applicant under s 40, s 109 and s 110N of the GA Act, and in a statutory review of a limited interim guardianship order appointing the Public Advocate under s 84 of the GA Act. In those proceedings, the applicant sought the revocation of the EPG and the EPA, and the making of guardianship and administration orders appointing himself as guardian and as administrator for the represented person.
The second matter (proceedings GAA 4205 of 2013 and GAA 4206 of 2013) involves applications brought by the applicant under s 85(2) of the GA Act for review of the limited guardianship order and the plenary administration order made by Senior Member Allen on 5 July 2013, which the Tribunal is required by s 85(1) of the GA Act to undertake where a guardian or an administrator dies (s 85(2) review applications). In this case, a review under s 85(1) of the GA Act is required because LB, one of the two limited guardians and joint administrators, passed away on 1 November 2013.
The third matter is an application by MM and the estate of the late LB, under s 16(4) of the GA Act, for an order that such costs relative to the proceedings determined by Senior Member Allen as the Tribunal thinks fit be paid to MM and the estate of the late LB by, or out of the assets of, the represented person (s 16(4) costs application).

Section 17A and s 85(2) review applications

These matters can be addressed together, as they both involve consideration as at today's date of:
1)Whether the represented person is a person for whom a guardianship order and an administration order can be made.
2)Whether there is a need for a guardianship order and an administration order, including whether there is any less restrictive alternative than the making of a guardianship order and an administration order.
3)Whether any order should be plenary or limited, the functions that should be conferred, and the directions or conditions, if any, subject to which any order should be made.
4)Who should be appointed as guardian and administrator?
5)The period for which any order should be made before it must be reviewed by the Tribunal.
The only potential additional issue in the s 17A review applications which does not arise in the s 85(2) review applications relates to the validity of the EPG and the EPA which the Tribunal revoked on 5 July 2013. Senior Member Allen addressed that issue at [25] to [37] of the member's reasons. The Senior Member found on the medical evidence, which he summarised, that the represented person did not have the requisite 'full legal capacity' under s 104(1a) and s 110B of the GA Act to make the EPG and the EPA, and he therefore revoked both instruments. These findings are not challenged by any party in the s 17A review applications. The medical evidence summarised and relied upon by Senior Member Allen in his reasons is also before the Full Tribunal. Based on that evidence, we make the same findings as Senior Member Allen and respectfully adopt his reasons for those findings. In the s 17A review applications, we therefore revoke both the EPG and the EPA.

Is the represented person a person for whom a guardianship order and an administration order can be made?

Section 4(3) of the GA Act sets out the following fundamental, but rebuttable, presumption of capacity:
Every person shall be presumed to be capable of
(a)looking after his [or her] own health and safety;
(b)making reasonable judgments in respect of matters relating to his [or her] person;
(c)managing his [or her] own affairs; and
(d)making reasonable judgments in respect of matters relating to his [or her] estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
Section 43(1) of the GA Act states in relation to guardianship 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 [or her] health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his [or her] person; or
(iii)in need of oversight, care or control in the interests of his [or her] 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 64(1) of the GA Act states in relation to administration 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 [or her] 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 [or her] 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.
It is common ground between the applicant and the represented person's siblings that the represented person is a person for whom a guardianship order can be made under s 43(1) of the GA Act and for whom an administration order can be made under s 64(1) of the GA Act. Based on the medical evidence before the Full Tribunal and in particular a report by Dr EV, a clinical neuropsychologist, dated 26 March 2013, we agree. Dr EV expressed the following opinion:
In sum, the current review highlights a pattern of fairly significant and generalised cognitive deficits consistent with her documented history of Intellectual Disability. Numeracy was significantly reduced, and there was evidence of memory impairments and executive dysfunction. These deficits were considered in keeping with her Intellectual Disability. Additionally, whilst [the represented person] demonstrates a very shallow awareness of the extent of her cognitive difficulties, she consistently acknowledged that she was unable to manage most aspects of decision making (including lifestyle, health and financial decisions) without support, and expressed a willingness to be supported.

Is there a need for a guardianship order and an administration order?

It is common ground, and we find, that the represented person is in need of a guardian, because decisions need to be made from time to time about accommodation, medication, medical treatment and access to services for her. The represented person is in need of an administrator of her estate, because she requires someone to manage her estate, which includes a substantial bond for her accommodation and, as we will discuss later in these reasons, $22,250 was paid from her bank account for legal fees incurred by MM and LB and will need to be recovered by an administrator. Furthermore, there is a need for an administrator to manage the represented person's day-to-day income and expenses.
Section 4(4) of the GA Act states as follows:
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.
Given that the EPA and EPG are revoked, there is no less restrictive alternative to the making of orders. The represented person requires a substitute decisionmaker to act on her behalf in her best interests in relation to both lifestyle decisions and financial decisions.

What should be the terms of any guardianship order and administration order?

Sections 4(5) and s 4(6) of the GA Act state as follows:
(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.
The limited functions given to the guardians under the guardianship order made by Senior Member Allen on 5 July 2013 are appropriate and adequate in the best interests of the represented person.
The applicant raised a concern in these proceedings that he was being denied contact with the represented person by a combination of the staff of the residential care facility and family members. He sought what he termed a 'negative function' that any guardian appointed for the represented person should not have the ability to limit contact with him.
However, the scheme of the GA Act is such that without a positive authority to make decisions for a represented person about any specific matter, a limitation cannot be imposed upon a represented person's freedom of decisionmaking. Even where the presumption of capacity is rebutted in relation to a person, where there is no demonstrated need for a particular type of decisionmaking to be vested in a substitute decisionmaker - that is, a guardian - the person retains the right to make their own decisions in that area.

The applicant and the represented person's siblings agree, and we find, that, in this case, there is no demonstrated need for decisionmaking in relation to contact to be vested in a substitute decisionmaker, and therefore the Tribunal cannot impose a function on a guardian appointed in relation to other matters to regulate contact. Decisionmaking in relation to contact remains with the represented person, and any guardian appointed with other functions cannot lawfully interfere with the represented person's decisionmaking in relation to contact.
However, the residential care facility retains its rights, as occupier, carer and employer of care staff, to regulate entry to the facility. While this may impact on contact in some circumstances, it does not fall within the jurisdiction of the Tribunal to regulate.
The directions or conditions subject to which the guardianship order and the administration order were made by Senior Member Allen on 5 July 2012 are appropriate and adequate, although as all the parties contend - or at least accept - twice yearly reporting to the represented person's siblings is excessive, with annual reporting being adequate.
The applicant sought amendment of the conditions to require reporting to and consultation with him in addition to the siblings of the represented person. The applicant's advocate, KK, submits that 'he is also still family; he is a cousin' (T:19.3, 22.01.14) and that his level of care for the represented person warrants his inclusion in these requirements. The applicant also expressed concern about what he calls the 'dissipation' of the represented person's estate, although he did not allege misappropriation of any part of her assets.
However, in our view, although we have no doubt that the applicant cares for the represented person, who is his cousin, his family relationship is at a different level to the represented person's siblings. Insofar as the conditions regulate the administration, the administration is adequately overseen by the Public Trustee under the GA Act. We do not think the directions should be expanded to include reference to the applicant.

Who should be appointed as guardian and administrator?

As noted earlier, LB has passed away. Although MM formerly proposed herself as guardian and administrator, she subsequently withdrew that proposal.
The applicant has proposed himself as guardian and administrator for the represented person since he first commenced proceedings in November 2012. The applicant is a retired clinical psychologist and neuropsychologist and, as Senior Member Allen found at [6] of the member's reasons, while the represented person lived with the applicant for some 19 months up to November 2012, he:
… spent a great deal of effort working with [the represented person] to address her behavioural issues, including obsessive behaviour and incontinence, with some success.
The applicant submits that he has the right personal and professional skills and personality, and understanding of and commitment to the represented person, to be her guardian and administrator. He understands the requirements of these roles, and is an intelligent and accomplished person. The applicant suggested that the represented person has 'gone backward, medically and psychologically' (T:22.2, 22.01.14) since she has been at the residential care facility. He said that she had gained weight, is not properly groomed, has a flat affect, and is less loquacious and less vibrant.
The applicant raised three specific concerns about the way the represented person is being cared for at the residential care facility: first, that she has not had her medication properly explained to her; secondly, that whereas, while she lived with him, her incontinence issues had been successfully addressed by a regime he had developed, she was now incontinent again, and this has affected her social life and wellbeing; and thirdly, that she was being inappropriately medicated with an anti-psychotic drug. The applicant went so far as to allege that the represented person was being 'chemically restrained' (T:29.6, 22.01.14) for the sake of other considerations, such as convenience of the facility and economics.
However, the overwhelming evidence from the represented person's siblings and the residential care facility manager, which we accept, is to the contrary. The represented person's sisters gave evidence to the effect that the represented person is happy, well-dressed, appropriately groomed, and engaged in appropriate activities provided at the residential care facility.
The represented person's sisters gave evidence that the represented person is not, in fact, incontinent, that she manages her own toileting and wears incontinence pads, in one of her sister's, HW's, words 'in case there is a little accident' (T:65.1, 22.01.14). The sisters said that the represented person is able to go out and interact without any incontinence concerns.
The represented person's sisters accepted that the represented person has gained weight since she has been at the residential care facility, but they said that that was a result of good care, and that the represented person is aware of her weight gain, and is undertaking exercise within a program provided at the residential care facility and adjusting her food intake.
One of the represented person's sisters, RW, gave evidence that:
[The represented person]'s health is regularly monitored by [Dr PMcC] and also by the staff at [the residential care facility]. [The residential care facility] take[s] a holistic approach to [the represented person]'s health and well-being. The family agree[s] that [the represented person] has never looked better and this is the general comment of most people who visit or come into contact with her.
Another of the represented person's sisters, LA, gave evidence that:
My sister … has stated to me several times that she loves her life at [the residential care facility] and is very happy living there, taking part in the many varied activities. She has made many new friends while at [the residential care facility].
Dr PMcC, the represented person's general practitioner, said in a report dated 4 November 2013:
…
[The represented person]'s present physical health and wellbeing is very good. She participates in many of the activities at the Hostel and goes to exercise events. She is eating well and her blood pressure, weight and blood sugar are stable.
…
There has been no deterioration in [the represented person]'s wellbeing since … 1/8/2013 except when she was anxious about needing to leave [the residential care facility].
…
We prefer the evidence of the represented person's sisters and the residential care facility manager in relation to the represented person's present wellbeing over the applicant's, because he has had only limited contact with her, in the order of eight occasions over the last 14 months, and, on two or three of those occasions, it appears that he arrived at the facility unannounced, whereas the sisters and residential care facility manager have had significant ongoing contact with the represented person throughout this period. Furthermore, when she attended the Tribunal and gave her evidence, the represented person appeared very well, appropriately groomed and happy.
The represented person gave evidence in response to the Tribunal's questions, and with the other parties viewing and listening from a different hearing room by videolink, that she is happy at the residential care facility and likes the activities and the people there. She said that she does activities, she goes out, her sisters and aunties visit her, and the people at the facility are nice. She appeared to the Tribunal to be bright, active and reactive. She readily engaged with the Tribunal and answered questions freely.
Furthermore, we accept the evidence of the residential care facility manager that the represented person's general practitioner attends the facility weekly and that medication is provided under his care. While the applicant is well intentioned, he is not a medical doctor and has limited knowledge of the represented person's current clinical needs. There is no qualified evidence to support the applicant's allegation that the represented person is being 'chemically restrained', let alone that it is for an ulterior purpose. In relation to the applicant's concern that medication has not been explained to the represented person, we note that the represented person has a medical guardian whose responsibility under the GA Act is to make treatment decisions for her in her best interests.
Finally, we note that the represented person is supported by his friend and neighbour, SW, who describes him as a 'caring person', and by another friend, OD, who describes him as 'a real gentleman, kind person, helpful and generally caring by his nature'. She said that when she visited the represented person while she was living with the applicant, the represented person was very happy, enjoying a friendly and safe home environment.
Two of the represented person's sisters, HW and RW, have also proposed themselves as joint guardians and joint administrators for the represented person. Whereas one of the represented person's sisters, NW, and the represented person's brother opposed guardianship and administration orders being made appointing MM and LB as guardians and administrators for the represented person and, rather, supported the applicant being appointed in those roles, all of the siblings of the represented person support HW and RW being appointed as guardians and administrators and oppose the applicant being appointed in those roles.
RW gave the following evidence:
[HW] and I are quite capable of looking after all aspects of [the represented person]'s life and we have the full backing of every one of our other four siblings and, most importantly, [the represented person]. This is what she wants for the remainder of her life and we have never been more determined and committed to see this achieved.
RW also gave evidence that:
Us siblings, more than anyone else, who grew up with [the represented person] are very aware of her disability and are aware that her disability makes her very vulnerable. All through our school years, because we were aware of [the represented person]'s condition, we would ensure that she was protected from people who did not understand her plight. Nothing has changed to this day.
My sister [HW] and I want to ensure [the represented person]'s welfare is complete by being given the opportunity to act in the capacity as [the represented person]'s joint Guardian[s] and Administrator[s].
HG, an officer of the Public Advocate, supports the appointment of HW and RW. HG said that HW and RW have good communications with all of the family members and the family accepts them as 'stable and wise' (T:91.3, 22.01.14). In their evidence before the Tribunal, HW and RW demonstrated that they would approach the guardianship and administration for their sister in an appropriate and reasonable way in her best interests, including looking into the concerns expressed by the applicant in relation to the represented person's medication.
Although the applicant alleged that HW and RW would seek to prevent him from having access to, and contact with, the represented person, there is no evidence to this effect and we accept the evidence of HW and RW that they will respect the represented person's choice of whether she wishes to see the applicant or not.
Section 4(7) of the GA Act states as follows:
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.
RW, the represented person's brother, and Dr PMcC each said in statements to the Tribunal that the represented person told them that she does not wish to see the applicant. The represented person gave evidence to the Tribunal about her views and wishes. She said that she would like her sisters, HW and RW, to have the job of making decisions for her about each of the functions of guardianship and administration referred to earlier. The represented person said that 'they're good sisters and they'd like to and I would love them to do it' (T:45.9, 22.01.14). In contrast, she said that she does not want the applicant to be given those roles. She said 'I don't want anything to do with him' (T:46.8, 22.01.14).
Although the medical and other evidence suggests that the represented person is impressionable, and she has only seen the applicant on limited occasions in recent times, some weight should be given to her clearly expressed wishes to the Tribunal.
Section 44(1) and s 44(2) of the GA Act state as follows in relation to who may be appointed as guardian:
(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.
Having regard to these considerations, we consider that HW and RW should be appointed as joint limited guardians for the represented person, rather than the applicant. In terms of whether the applicant will act in the represented person's best interests and is suitable to act, although we accept that he has good intentions and made considerable efforts on her behalf when she lived with him, he has had a very poor relationship with the staff at the residential care facility, which would impede his ability, we find, to act in her best interests while she resides at that facility. Importantly, all parties, including the applicant, accept that it is in the represented person's best interests not to be disrupted in her life by being moved from the residential care facility. We also find, on the evidence of the represented person's siblings and the represented person herself, that the facility provides good care and services.
While there was a dispute in the evidence of the applicant and the residential care facility manager as to the circumstances of two incidents in November 2013 that were cited by the residential care facility manager as examples of what she termed the applicant's 'verbal and physical aggression' (T:71.9, 22.01.14) towards staff at the facility, even on the applicant's version of the incidents, it is plain that his relationship with the staff at the facility is highly problematic, and this would impact on his ability to effectively communicate with staff who care for the represented person.
The applicant gave evidence that even his limited contact with the staff at the facility gave rise to 'anxiety' (T:83.9, 22.01.14) issues, and led to him raising his voice and coming close to what he termed a 'panic attack' (T:85.5, 22.01.14). This was substantially confirmed by evidence of SC, the applicant's friend. This makes the applicant unsuitable to be appointed. In contrast, HW and RW have a good relationship with facility staff.
In terms of the desirability of preserving existing relationships within the family of the represented person, it is appropriate to appoint her sisters, who all of the siblings support, rather than her cousin, who none of the siblings support.
In terms of the compatibility of the proposed appointee with the represented person, it appears that, at least at present, the represented person has a much closer relationship with her siblings, and particularly her siblings who propose themselves to be appointed, rather than with the applicant.
In terms of the wishes of the represented person, as we have said, the represented person wishes to have the job of making decisions for her, both in relation to the guardianship functions and administration, given to her sisters and not to her cousin. We give some weight to those views, but even absent and disregarding the represented person's views, our decision would be the same.
Finally, in relation to guardianship, the applicant's advocate, KK, proposed, as an alternative, if the applicant were not appointed, the appointment of the Public Advocate as guardian. However, s 44(5) of the GA Act precludes the Public Advocate's appointment, except where appointed jointly with another person, 'unless there is no other person who is suitable and willing to act'. In this case, HW and RW are suitable and willing to act.
Section 68 (1) and s 68(3) of the GA Act state as follows in relation to who may be appointed as an administrator:
(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.
(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.
In terms of the compatibility of the proposed appointee with the represented person and the guardian, it is preferable to appoint HW and RW rather than the applicant. Given the level of conflict between the applicant and the represented person's siblings, who the applicant described as 'being driven, it seems, by a sheer hatred of me' (T:97.1, 22.01.14), he would not, we find, be able to work effectively and sufficiently well with the guardians in the best interests of the represented person, although he otherwise could appropriately perform the functions of an administrator.
In contrast, we find that HW and RW would act in the represented person's best interests and are, in all respects, suitable for appointment as joint administrators. For reasons that will become apparent in our consideration of the s 16(4) costs application later in these reasons, there is a potential issue as to whether HW and RW would be able to perform one function that will be vested in the administrators by way of a condition imposed by the Tribunal, namely, the recovery of $22,250 of the represented person's estate used by MM and LB to pay their legal expenses in the proceeding determined by Senior Member Allen.
MM acknowledged that if an order for costs under s 16(4) of the GA Act is not made, then she will need to repay the money used for legal fees. Given that acknowledgement on the part of MM, and the Tribunal's authority to appoint an administrator subject to conditions, we are satisfied that it is appropriate to appoint HW and RW on condition that they recover the sum of $22,250 from the previous administrators.

When should the guardianship and administration orders be reviewed?

The guardianship and administration orders made by Senior Member Allen are to be reviewed within three years after they were made. Guardianship and administration orders cannot be made indefinitely, and must be the subject of a statutory review within five years, specified in the order. However, as HG, an officer of the Public Advocate, said, where a represented person's condition is static, it is preferable, to provide greater stability and minimise disruption to the represented person, to make the orders reviewable within five years, which is the maximum period.
If there is any change in circumstances or the need to amend the orders, the GA Act provides such mechanisms. All of the parties agreed that it is appropriate to make the orders reviewable within five years rather than three years, and we concur.

Section 16(4) costs application

Section 16(4) of the GA Act states as follows:
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.
On behalf of MM and the estate of the late LB, Mr Alan Brook seeks an order, under s 16(4) of the GA Act, that legal fees of $22,250 in total, which he charged to MM and LB for representing them in the proceedings determined by Senior Member Allen, should be paid by, or out of the assets of, the represented person. In his written submissions, Mr Brook submits that his clients acted in the represented person's best interests by removing her from the applicant's home where she had resided for 19 months and they 'had no option but to take steps to defend this action'.
Mr Brook said that in his clients' eyes, 'the [a]pplications by [the applicant] were intolerable'. He submits that:
Regardless as to whether the Enduring Power of Attorney was valid or not[,] [MM] and [LB] would have, in any event, taken the same action of removing the [r]epresented [p]erson from the home of [the applicant] and finding new accommodation for her.
Mr Brook also submits that as a result of his clients' actions, the represented person now resides at the residential care facility, where she is very happy. In supplementary submissions filed on 21 January 2014, Mr Brook contends that 'it was reasonable in the circumstances for both sisters to have sought legal advice and representation in these proceedings', and notes that the applicant is presently represented by KK. He also submits that the costs incurred by his clients were 'reasonable and not excessive in the circumstances'.
Mr Brook advised the Tribunal on 21 January 2014 - that is, the day prior to the hearing commencing - that he would not be attending the hearing, as his client, MM, was no longer proposing herself to be appointed as guardian or administrator, and Mr Brook requested that the costs application be determined on the documents. The Tribunal informed Mr Brook that the parties would be given a copy of his written submissions and allowed to respond, and that the costs application would be determined at the hearing, rather than on the documents.
On the afternoon of the first day of the hearing, MM informed the Tribunal that the legal fees sought in the s 16(4) application had been paid to Mr Brook's firm, not by her and her late sister, LB, but by bank cheques drawn on the represented person's bank account by MM.
This information was not previously provided to the Tribunal. It raises two significant problems. First, it means that the application made by Mr Brook is, in effect, for retrospective authorisation of the payment of his costs by, or out of the assets of, the represented person; however, s 16(4) of the GA Act does not provide this power to the Tribunal. Secondly, it means that the application for costs is misleading, because it is implicit in the application that the fees have either been paid by MM and LB, or that they have a present obligation to pay those fees as Mr Brook's clients.
The Tribunal's practice in relation to an application for costs under s 16(4) of the GA Act is summarised in D R Parry and B De Villiers Guide to Proceedings in the Western Australian State Administrative Tribunal (Law book Co/Thomson Reuters, 2012), at [1704] as follows (citations omitted):
…
… The Tribunal has a wide discretion to award costs under s 16(4) of the Guardianship and Administration Act 1990. However, awards of costs under this section are not common. The provision is not to be read independently of the costs regime in s 87 of the SAT Act and thus 'the starting proposition is that parties bear their own costs'. Legal representation is not usually required at hearings of the Tribunal in the guardianship and administration jurisdiction, because the information necessary to make a determination is generally secured by the application and hearing processes alone. The Tribunal is also able to refer an application to the Public Advocate for independent investigation, report and advocacy in the best interests of the person in respect of whom the application is made. Furthermore, 'the requirement that a party act in the person's best interests is not a difficult threshold to cross' and 'something more than merely acting in best interests [of the person whom the proceeding concern] will be required before the Tribunal will order a party's costs to be paid by, or out of the estate of, [that] person'. The Tribunal has identified several factors which, although not exhaustive, have been described as 'a useful starting point as to whether the Tribunal should exercise its discretion to order that the represented person pay another party's legal costs'.
These factors are:
•where it is unlikely that an application would have been made to the Tribunal and the proposed represented person benefit from the protection of an order, had not legal advice been sought by the applicant;
•where there are serious allegations that the proposed represented person is suffering from abuse, and legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner;
•where conflict between significant parties is of such magnitude that it is unlikely they could present a coherent case to the Tribunal in respect of the history and needs of the proposed represented person without legal assistance;
•where the application is of such complexity that legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner;
•where the application is contentious and unique; and
•where the application raises a special point of law.
…
As we said earlier, the application is, in effect, for retrospective authorisation of the payment of Mr Brook's fees by, or out of the assets of, the represented person, and the Tribunal does not have power to make such an order under s 16(4) of the GA Act. However, in any case, even if we had the power to make the orders sought in the circumstances of this case, we would decline to do so in this case.
In our view, the Tribunal's discretion under s 16(4) of the GA Act should be exercised against making an order for the payment of MM's and LB's costs of the proceedings by, or out of the assets of, the represented person. A part of the costs was incurred in propounding the validity of the EPG and the EPA. Insofar as the costs relate to the EPG and the EPA, MM and LB did not act in the best interests of the represented person. As was found by Senior Member Allen, and by the Full Tribunal, the represented person did not have 'full legal capacity' to execute those instruments.
Insofar as the costs relate to the applications for guardianship and administration orders, we find that MM and LB did act in the best interests of the represented person in taking part in the proceedings and in seeking their appointment as guardians and administrators. However, as noted earlier, acting in the best interests of the represented person, or the person in respect of whom the application is made, is not a difficult threshold to cross, and something more is required before the Tribunal will exercise its discretion to make an award of costs.
In this case, although there was conflict within the family, it was not of such a magnitude that it was unlikely that MM and LB could present a coherent case without legal assistance. The proceedings were also not of such complexity that legal advice and representation was required to present a reasoned case to the Tribunal, and the case did not involve any complex or special point of law. While MM and LB were entitled to seek legal advice and be legally represented if they so desired at their expense in the proceedings, in our view, legal representation was not reasonably required in the circumstances of the case such that an order for costs under s 16(4) of the GA Act should be made.
Furthermore, the fact that the applicant was represented before the Full Tribunal by an agent is not in point. The applicant did not have legal representation in the proceedings, and although he was permitted to be represented by an agent under s 39(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) before the Full Tribunal, the Tribunal imposed a condition on that leave that KK may not charge for representation.
Finally, we note that $22,250 is a significantly excessive amount for the legal work reasonably required, it appears, to represent MM and LB in proceedings of this nature, complexity and length, as were the proceedings determined by Senior Member Allen. As the Tribunal held in DB and MJB [2013] WASAT 73 at [48] [50], where an order for costs is made under s 16(4) of the GA Act, the Tribunal adopts the same approach to the assessment of the amount of costs to be awarded as in relation to a costs order under s 87 (2) of the SAT Act. Therefore, even if we had the power to do so, and we had considered it appropriate in the exercise of the Tribunal's discretion to do so, the amount of costs awarded or ordered to be paid would have been significantly less than the amount sought.

Declaration and orders

For these reasons, we make the following declarations and orders.
In proceedings GAA 2841 of 2013 and GAA 4205 of 2013, which relate to applications for review under s 17A and applications under s 85(2) of the GA Act in relation to administration, the Tribunal makes the following declaration and orders.
The Tribunal declares that the represented person:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate; and
(b)is in need of an administrator of her estate,
and the Tribunal orders that:
1.The administration order made on 5 July 2013 is revoked.
2.Subject to order 4, [RW] of [address] and [HW] of [address] are appointed joint plenary administrators of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The appointment of the joint administrators in order 2 is subject to the conditions that the joint administrators must:
(a)Provide to the other siblings of the represented person statements of the represented person's assets and any liabilities as at 30 June each year and of her income and expenditure for each 12 month period.
(b)Provide the other siblings with a copy of the accounts submitted each year by the joint administrators to the Public Trustee pursuant to s 80 of the Guardianship and Administration Act 1990 (WA).
(c)Consult, and take into account the views of the other siblings of the represented person in relation to any material financial transaction to be undertaken on behalf of the represented person.
(d)Recover from [MM] and the estate of the late [LB] the sum of $22,250 paid from the assets of the represented person to meet legal expenses in GAA 4226 of 2012, GAA 4227 of 2012, GAA 4440 of 2012 and GAA 4441 of 2012.
4.The administration order is to be reviewed by 22 January 2019.
In the s 17A application the following additional orders are made:
5.The enduring power of attorney made by the represented person on 15 August 2011 is revoked.
6.The application under s 109 of the Guardianship and Administration Act 1990 (WA) is otherwise dismissed.
In GAA 2842 of 2013 and GAA 4206 of 2013, being proceedings for review under s 17A of the GA Act and s 85(2) of the GA Act in relation to guardianship matters, the Tribunal makes the following declaration and orders:
The Tribunal declares that the represented person:
(a)is incapable of looking after her own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to her person;
(c)is in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(d)is in need of a guardian,
and the Tribunal orders that:
1.The guardianship orders made on 20 December 2012 and 5 July 2013 are revoked.
2.Subject to order 3, [RW] of [address] and [HW] of [address] are appointed joint limited guardians of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily.
(b)To decide with whom the represented person is to live.
(c)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.
(d)To determine the services to which the represented person should have access.
3.The appointment of the joint guardians is subject to the conditions that the joint guardians must:
(a)Inform the other siblings of the represented person, as soon as practicable, of any absence of the represented person from her usual place of residence for more than 24 hours for medical treatment or other health care, or for any other reason, and of any material change in the represented person's physical or mental health.
(b)Consult, and take into account the views of, the other siblings in relation to any significant decision proposed to be made concerning the represented person's accommodation, physical or mental health, any significant treatment decisions proposed to be made for her, or any services to be provided to her.
(c)Authorise the management of the care facility in which the represented person resides to provide information about the represented person's care and welfare generally to any of the other siblings in response to any reasonable request from any of the other siblings.
4.The guardianship order is to be reviewed by 22 January 2019.
In the s 17A application the following additional order is made:
5.The enduring power of guardianship made by the represented person on 15 August 2011 is revoked.
In relation to the costs application made in proceedings GAA 4226 of 2012, GAA 4227 of 2012, GAA 4440 of 2012 and GAA 4441 of 2012, we make the following order:
1.The application is refused.

I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT