NL and TKT - [2012] WASAT 121

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: NL and TKT [2012] WASAT 121

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 12 MARCH 2012 AND 12 APRIL 2012

DELIVERED : 22 MAY 2012

PUBLISHED : 12 JUNE 2012

FILE NO/S: GAA 4199 of 2011
GAA 4200 of 2011
GAA 1186 of 2012
GAA 1187 of 2012
GAA 1188 of 2012

BETWEEN: NL
First Applicant
PT
Second Applicant
AND
TKT
Represented Person

Catchwords:

Guardianship and administration Enduring power of attorney Capacity at time of executing enduring power of attorney Need of a guardian Need of an administrator Who should be appointed guardian Who should be appointed administrator Continued operation of enduring power of attorney inconsistent with functions of administrator Revoke enduring power of attorney Remuneration of administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 41(1), s 43, s 43(1)(b), s 44, s 45, s 46, s 51, s 51(g), s 51(h), s 64, s 64(1)(a), s 68, s 68(1), s 68(3), s 69, s 70, s 71, s 72, s 72(3), s 80, s 84, s 97(1)(b)(iii), s 106, s 106(2)(b), s 108,
s 108(1a)(a), s 117
Transfer of Land Act 1893 (WA)

Result:

A guardian and an administrator appointed

Category: B

Representation:

Counsel:

First Applicant              :     Mr J Hockley
Second Applicant          :     Mr L Hagar
Represented Person       :     Self-represented

Solicitors:

First Applicant              :     N/A
Second Applicant          :     Metaxas & Hager
Represented Person       :     N/A

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

Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications for guardianship and administration orders were made for an elderly man suffering from a cognitive impairment. The applications were made by the man's companion and former carer, and separately by his son. The son also made an application for an enduring power of attorney to come into force.
There was dispute between the carer and the man's son and daughter about the best way in which personal decisions for the man should be made and how his estate should be managed.
The son argued that he or the daughter should be appointed the man's guardian and that an enduring power of attorney executed by the man in favour of him and the daughter was the appropriate instrument by which the man's estate should be managed. In the alternative, he proposed himself as the man's administrator.
The former carer and companion was of the view that she should be the man's guardian because of her long association with him, and that the man's accountant should be appointed his administrator. She submitted that the man did not have the capacity to execute the enduring power of attorney in favour of his son and daughter.
The Tribunal found that it could not rely on the enduring power of attorney and appointed the accountant as the man's administrator. The former carer and companion was appointed the man's guardian to make his ongoing treatment decisions.

Reasons for decision

What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.
In keeping with the confidentiality provisions of the Guardianship and Administration Act 1990 (WA), the names of the parties have been anonymised.
I have five applications before me in respect to TKT (represented person). They are applications for guardianship and administration made by the represented person's carer (NL), on 9 January 2012.
The other applications have been made by PT, the represented person's son (son) on 4 April 2012. They are applications for guardianship and administration and an application to bring an enduring power of attorney into force that the represented person executed on 8 August 2011.
It should be noted that the represented person has executed two enduring powers of attorney and one power of attorney. They are:
•3 April 2009 an enduring power of attorney in which the represented person appointed LA, the represented person's daughter (daughter), and his taxation accountant (ME), as joint attorneys with the son as substitute for either of them in the event of their legal incapacity or death. This enduring power of attorney was purportedly revoked by the represented person on 8 August 2011.
•8 August 2011 a power of attorney in favour of the son with the authority to sell, mortgage, lease or do other things the subject of the Transfer of Land Act 1893 (WA), but limited to an investment property (investment property) owned by the represented person.
•8 August 2011 an enduring power of attorney in favour of the son and the daughter as joint attorneys but to come into force only upon a declaration by the Tribunal that the represented person no longer has legal capacity.
NL was represented by counsel, Mr Hockley, and the son by Mr Hager.
The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
The applications were heard by me on 12 March 2012 and 12 April 2012. At the first hearing, the represented person was assisted by an interpreter, NL attended, as did ME; the son and the daughter attended by telephone from overseas and RS attended on behalf of the Public Advocate. The legal representatives for NL and the son were also present. At the second hearing, the represented person was excused from attending and all other parties who attended the first hearing were present except the daughter (however, she had been interviewed by the Public Advocate on 1 March 2012).
The decision was reserved.

The Public Advocate

The Public Advocate is a party to these proceedings as is the Public Trustee (s 41(1) of the GA Act). The Public Advocate has taken an active role in the proceedings by virtue of having the applications referred to her by the Tribunal for investigation and report pursuant to s 97(1)(b)(iii) of the GA Act. Her statutory role is to seek to advance the best interests of the represented person.

Background

The represented person is a 94yearold gentleman originally from Indonesia. He migrated to Perth in 1984. He has three children the son, the daughter, and another daughter who lives in Europe and with whom the represented person has no contact. NL has been the represented person's carer.
The represented person moved into high level nursing home care on 31 May 2011. Prior to that, he had been living in his own home under the care of NL.
The applications before the Tribunal arise primarily out of a difference of views between NL and, to some extent, ME on the one hand, and the son (principally) and the daughter on the other hand. The differing views relate to interpretations of past events and the represented person's future needs, and particularly, how the various parties perceive the motives and intentions of the others.
Unfortunately, this has led to a situation, which is not uncommon, to a contest between the parties as to who is most suited to make the necessary decisions for the represented person in both his personal and financial life.

Relevant legislation

The GA Act has been characterised as protective legislation. As<Heenan J said in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43]:
… it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or illconsidered personal decisions or action, or by unscrupulous or illadvised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.
Because the effect of orders made under the GA Act often lead to the removal of decision making rights from a person that we take for granted, Parliament has been keen to ensure through the GA Act's provisions that orders for guardianship and administration in particular are only made when a need has been demonstrated to the satisfaction of the Tribunal.
There are a number of steps that I need to take to reach a point where guardianship and administration orders can be made. The relevant provisions of the GA Act for guardianship are:
•Section 43 making of guardianship order;
•Section 44 who may be appointed guardian;
•Section 45 authority of plenary guardian;
•Section 46 authority of limited guardian;
•Section 51 guardian to act in the best interests of represented person;
and for administration:
•Section 64 making of administration order;
•Section 68 who may be appointed administrator;
•Section 69 authority of administrator;
•Section 70 administrator to act in best interests of represented person;
•Section 71 authority which may be conferred on administrator;
•Section 72 further provisions as to authority of administrators; and
•Section 80 accounts.
In respect to the application for a declaration of legal incapacity for the enduring power of attorney executed by the represented person on 8 August 2011, the relevant provision is s 106 of the GA Act.
If I decide that the represented person is in need of an administrator and that an existing enduring power of attorney should not be permitted to operate, then s 108 of the GA Act is relevant to the power to revoke such an instrument.
All of this is to be read subject to the principles of the GA Act which are set out in s 4 and which state:

4. Principles stated

(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,

until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.

The represented person's capacity

The relevant provisions of the GA Act are:
•section 43(1)(b) for guardianship;
•section 64(1)(a) for administration; and
•s 106(2)(b) for the enduring power of attorney.
They state relevantly:
43.     Making of guardianship order
(1)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
…
(b)is
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
64.     Making of administration order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; …
106.     Donee may apply for declaration of legal incapacity
…
(2)Where the State Administrative Tribunal is satisfied that a person in respect of whom an application is made under subsection (1)
…
(b)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate,
the Tribunal may by order declare that the donor does not have legal capacity and that the power of attorney is in force.
There are a number of reports before me which, in chronological order (and in summary), are as follows:

21/04/2011 ACAT (Aged Care Assessment Team)

This report states that the represented person was admitted to hospital on 18 March 2011 for back pain and decreased mobility. NL was stated to be the represented person's sole caregiver providing full care assistance. The represented person, his children and NL had all agreed that because of the represented person's high care needs, NL could not continue as his primary carer. It was noted that the represented person regularly suffered from shortterm memory problems, had symptoms of depression, was disoriented to place, and had occasional confusion.

24/11/2011 Dr KY, General Practitioner (nursing home progress notes)

In the progress notes, Dr KY states that he was unable to certify the represented person's testamentary capacity with any certainty. Reference was made to a Mini Mental State Examination (MMSE) conducted by an Occupational Therapist in September 2011 in which the represented person scored 18/30, with his main deficits being in the areas of orientation to time, place and recall.

22/12/2011 Dr KY, General Practitioner

In this report, Dr KY states a diagnosis of dementia for the represented person. He states that the represented person has very poor shortterm memory, is easily confused, is disoriented to time and place, and has a poor recall of recent events. Dr KY assesses the represented person as no longer being able to make reasonable decisions about his self care, living situation and financial affairs. He further assesses the represented person as being incapable of executing an enduring power of attorney.

12/01/2012 JT, Occupational Therapist

In her report, JT states that the represented person does not have a diagnosis of dementia but that the MMSE testing in September 2011 and observations suggest the presence of cognitive impairment. She is of the view that the represented person may experience difficulty making reasonable decisions. JT states that the represented person had difficulty understanding some of the MMSE questions but was able to better understand when the questions were put in writing. JT suggests that the represented person's language barrier would have had an influence on the MMSE results.

29/02/2012 Dr PKL, Physician, Bentley Health Service

Dr PKL assessed the represented person on 27 February 2012. Background information was provided by NL. Dr PKL states that there is evidence of cognitive impairment and that the represented person scored 14/30 on an MMSE on the day of the assessment. Dr PKL states that the represented person:
•was unable to give an account of his financial circumstances;
•was unable to nominate any person to be his attorney under an enduring power of attorney;
•was not oriented to time and place; and
•was assessed as having poor executive functioning.
Dr PKL opines that it appears the represented person is unable to make decisions regarding his financial and lifestyle circumstances, and that he is not currently capable of signing any documents with legal comprehension of their significance.
In the hearing on 12 March 2012 at which the represented person was present, there was discussion about the question of his current capacity. There had been an early submission by the daughter on 6 January 2012 in which she stated her belief that the represented person was 'fully aware' and that he was concerned about losing control over his affairs. She suggested that further assessment should be undertaken, which is what eventually happened through Dr PKL.
By the time of the hearing in March 2012 and mainly in response to the assessment of Dr PKL, it became the common ground of the parties that the represented person is no longer capable of making the significant decisions in his personal and financial life.
The assessment of Dr PKL is quite stark. It is consistent with a significant decline in the represented person's functioning over the last 12 months or so, and that decline is indicated in the other medical and allied health reports I have just summarised.
Dr PKL's assessment, which I accept, details not only a cognitive impairment, a feature of which is shortterm memory problems, but also a deficit in executive functioning which impairs the represented person's ability to plan and organise the things in his life.
In respect to guardianship, I find that the represented person is unable to look after his own health and safety, and that he is in need of oversight and care. He is in fulltime nursing care and requires assistance with all his activities of daily living. I also find that he is unable to make reasonable judgments about his person and that this impacts most heavily on the need to make ongoing treatment (medical) decisions (s 43(1)(b) of the GA Act).
In respect to his financial affairs, I find that the represented person has a mental disability of unknown origin and, by reason of that disability, he is unable to make reasonable judgments about his estate (s 64(1)(a) of the GA Act). The estate in question, as reported by NL in her application, comprises principally of three properties one in which the represented person used to reside with NL and in which she still lives, a tenanted property and an investment property which is the subject of an offer to purchase from a multinational organisation. The represented person also has bank funds of approximately $260,000. It appears from NL's application that the represented person's monthly expenditure exceeds his income, resulting in the need to draw upon his reserves in an ongoing way.

The making of the represented person's personal decisions

The represented person went into nursing home care at the end of May 2011 after his care needs exceeded that which could be provided in his home by NL. He will require fulltime care for the remainder of his life. NL and the represented person's family accept this to be the case. There is no concern about the care he currently receives at the nursing home. Subject to the normal constraints of a nursing home setting, people can visit him at will. There is no argument about who can visit and when.
The outstanding personal matter is that of consent to treatment. The represented person can no longer give such consent. Whilst the application of routine medical treatment is not controversial (for example, the treatment of colds and minor infections), consent must still be given. In addition, given the represented person's advanced age, consent of a more significant nature may present in the future, such as whether treatment for a particular condition should be active or palliative.

In most cases, these decisions are made by family members or other people who maintain a close personal relationship with the person for whom the decision must be made. This is reflected in the 'Person Responsible' provisions (Pt 9C) of the GA Act. In other cases, the person may have executed an enduring power of guardianship for this purpose.
None of this would seem to apply to the represented person. He has not executed an enduring power of guardianship, and the 'Person Responsible' provisions of the GA Act potentially apply to both NL and the son, and they are in contest.
Both NL and the son say they should be the decisionmaker. This is unfortunate, but is the reality of the represented person's situation.
NL submits that she should be appointed the represented person's guardian. She says that she has been the represented person's carer for 26 years. She states that she sees the represented person as her uncle ('Oom' in Dutch) and that the represented person sponsored her coming to Perth in 1985. Not long after coming to Perth, the represented person offered NL the chance to live in his home, which she accepted and '… despite many difficulties I have been his constant carer' (written application). She states further 'I always have the impression that his children have never really accepted that their father needs a carer' (written application).
NL states that the relationship between the represented person and his children has not been smooth and this has impacted negatively on her relationship with him. In her application, she states that the children have rarely visited their father and that the represented person shows his love to his children mainly through material things. NL also suggests that the son does not presently have a good relationship with his sister; this in the context of NL's evidence that she and the son had a falling out in 2006 and that she has communicated the represented person's health needs to his children through the daughter.
NL states that it is the represented person's wish that she make the relevant personal decisions for him and that the represented person has expressed that wish to the son. NL submits that the represented person sees the way decisions are made for him (that is, NL and the represented person together) as maintaining a form of independence.
NL says that she would not exclude the represented person's children from the decisions that need to be made.
The son's primary submission is that he and NL should be appointed jointly, but this is rejected by NL. Counsel for the son also submits (on the basis that a family member should be involved) that the daughter has proposed herself, although that position has not come formally from her and it was not fully considered at the hearing.
In her interview with the Public Advocate on 1 March 2012, the daughter is reported to have said, relevantly, that she and the son can work together with NL without the need for a guardianship order. NL is said not to have advised the daughter of changes to the represented person's health and his other circumstances, and the daughter's concern is that this will continue. She is concerned that NL will seek compensation for caring for the represented person because NL has been speaking of the stress and depression that have befallen her. The daughter is concerned that NL plans to move to Melbourne.
The son states that he does have a good relationship with the represented person. He visits two to three times a year and has recently spoken with the represented person by way of Skype on a weekly basis. The son says he visited the represented person just prior to the hearing and they spoke for several hours. He says that the represented person loves to talk about the past and the family's 'family tree'. He states that he and his children will visit the represented person this July for his birthday.
The son challenges NL's assertion that she has been the represented person's carer for 26 years. He submits that the represented person was able to manage his own personal affairs until early in 2010, when he had a fall. The represented person had travelled to Indonesia in January 2010.
The son says that he is prepared to work with NL and cannot understand why she will not consent to a joint appointment. He states that he wants to be involved in the major personal decisions that will need to be made for the represented person in the future. He expresses a concern that NL will not include him and the daughter if she is appointed guardian. He states, for example, that he was not forewarned of the applications for guardianship and administration made by NL. He says that he last spoke to NL on the telephone more than a year ago.
Despite this, the son says he still trusts NL to consider the best interests of the represented person, even though it appears as if she does not always involve his children in the process.
The represented person was interviewed by the Public Advocate on 6 February 2012 in his room at the nursing home. In her written report, the Public Advocate states that the represented person initially had great difficulty understanding the information provided; however, once the language was simplified, he was able to comprehend and respond appropriately, although with word finding difficulty. The represented person required constant repetition and rephrasing of questions put to him.
Relevantly, the represented person is reported to have said that he has very little contact with his children; they all have their own lives and are not concerned with being a part of his life. He says that he has had many arguments with his children over the years and that they are motivated by their inheritance. The represented person told the Public Advocate that his children do not accept that NL has been his carer and friend for 27 years and remains a part of his life. He states that NL has dedicated her life to him and that her intentions are pure. The represented person said to the Public Advocate that he did not believe he was in need of a guardian but, should that situation change, he would want NL to make the personal decisions on his behalf.
In her oral evidence, the Public Advocate states that the represented person has made his wishes very clear to NL, particularly about end of life treatment decisions, and he expects her to uphold his wishes in that regard.
The Public Advocate supports the appointment of NL as the represented person's guardian.
I have decided that it is in the represented person's best interests that NL be appointed his guardian to give consent to his ongoing medical treatment. I have decided in this way for the following reasons:
•I accept that NL has been the represented person's close friend and companion for many years and his carer since at least early 2010, when he suffered a fall.
•The relationship between the represented person and NL is characterised by a high degree of trust, as evidenced by the fact that the represented person has made his wishes known to her in respect to possible end of life treatment decisions with the expectation that those wishes are carried out.
•Although now limited by his illness, I accept that the represented person was able to communicate his wishes to the Public Advocate in February this year, including that, should personal decisions need to be made, he would want NL to be in the position of decisionmaker.
•Despite a breakdown sometime ago in the relationship between NL and the son, the son states that he would trust NL to act in the represented person's best interests.
•I am satisfied that NL will be able to perform the function I am giving her, namely, that she make the treatment decisions for the represented person to ensure his ongoing medical and health care needs are met.
•NL is both suitable and willing to be the represented person's guardian (s 44 of the GA Act).
In deciding as I have, I am satisfied that the relationship between the represented person and his children, relevantly, the son and the daughter, has not been as close as the son appears to characterise it. This is not to suggest that the represented person does not love his children or that they do not love him, and no doubt physical distance has played a part in inhibiting close contact. However, the sentiments expressed by the represented person to the Public Advocate (even though through the filter of his illness) is consistent with the evidence of NL, which I accept, which is that the represented person's relationship with his children has been at times fraught and mediated by a measure of mistrust as to their intentions.
The issue of communication has been raised by the son and the daughter. They are concerned that NL will not communicate important medical decisions to them and they say this has happened in the past. NL states that she will not exclude the represented person's children from these matters and I accept what she says. I draw NL's attention to s 51 of the GA Act, which sets out the factors a guardian needs to consider when making a decision in a person's best interests; in particular, s 51(g) and s 51(h), which state that a guardian must act in such a way as to maintain any supportive relationships the represented person has, and in such a way as to maintain his familiar cultural, linguistic and religious environment.
I will set review of the guardianship order in five years, the maximum term available to me under the GA Act (s 84). This is in recognition of the fact that the represented person will require such a decisionmaker for the rest of his life.

The management of the represented person's estate

I have earlier described in these reasons what is said to comprise the represented person's estate, that information being taken from the applications for guardianship and administration made by NL. The represented person has two residential properties, one being his former home in which NL continues to reside, the other a property which is tenanted. The represented person also owns an investment property which, according to ME, is the subject of a current offer to purchase from a multinational organisation (prospective purchaser). The represented person has bank funds (about $260,000 at the time the applications were made). In addition to these assets it would appear that the represented person also owns two gold ingots held at his bank and is the joint owner of a bank account with NL. This information comes from the two wills made by the represented person in 2011 (10 March and 8 August) which are before the Tribunal.
Apart from the issues that have arisen with the investment property (and the decision to be made whether to accept the current offer of the prospective purchaser), I do not consider the represented person's estate to be complicated or especially difficult to manage. His main financial need, aside from ensuring that his estate is preserved and protected, is to collect his income and pay his various expenses, including the bed fees at the nursing home.
The represented person's estate is not expansive; it is narrowly held through real property holdings and bank funds. That being said, it is necessary for there to be someone with the relevant authority to carry out the financial tasks. The contention between the parties is how best that should be achieved.
The represented person first made an enduring power of attorney in April 2009, appointing the daughter and ME as joint attorneys with the son as substitute attorney. No evidence was given as to the represented person's intentions at the time. ME states that he was not aware that he would be asked to take on the role of attorney; the document was simply sent to him. He says that he has only acted once as attorney, that being in relation to the represented person's bank accounts when he was in hospital. The enduring power of attorney was purportedly revoked by the represented person on 8 August 2011.
The represented person next made an enduring power of attorney on 8 August 2011. The circumstances surrounding the making of this enduring power of attorney are the subject of much dispute. It is the submission of the son that the enduring power of attorney was made when the represented person had full legal capacity, and therefore accurately reflects his wishes and intentions.
KT, former solicitor for the represented person, gave evidence that he had assisted the represented person to make the enduring power of attorney in April 2009 and the will of March 2011. He says he was also providing legal assistance to the represented person at the time in regard to the investment property and the negotiations with the prospective purchaser. KT states that from late 2010 through to July 2011, the prospective purchaser had sought extensions of the contract, and he was concerned that the company might be taking commercial advantage of the represented person.
KT says that he was finding it difficult to get instructions to progress the matter, so he took it upon himself to speak with the represented person to determine what he wanted to do. KT states that he was aware of the represented person's age, and was concerned about his ability to react to and understand things quickly. However, KT says that this did not mean that he had a concern that the represented person could not understand the matter just that he was finding it difficult to move and respond to the commercial pressures being imposed by the prospective purchaser.
KT says that he met with the represented person at least three times, explained the issues each time they met and ensured that the represented person was given written material to support the oral advice. KT states that it was difficult to communicate with the represented person and he was concerned about his abilities but, because of the time he spent with the represented person on each occasion, it was fairly clear to KT what the represented person wanted to do.
Of the day the enduring power of attorney and other documents were signed by the represented person on 8 August 2011, KT states:
Now the process of, again, going through the documents, again ... one of my biggest concerns was to make sure that he understood what he was signing and it took me at least an hour to go through because there were three or four documents that need[ed] to be signed and there were multiple copies of them that needed to be signed. So I did take him to [another solicitor's office]. We sat there for a significant period. I explained things to him. I wrote things down and, ultimately, asked him various questions and they were open ended, they were not leading questions, they were open ended questions, what is it that you want to do? ... and the response that I got satisfied me that he understood the questions and he understood what he wanted. (T:44; 12.04.12)
KT states that the represented person was adamant that he did not want the son to have control over everything, but that he wanted the investment property transaction to proceed. His instructions were that the son should deal with the investment property but that the enduring power of attorney '... be effectively subject to the control of two others and that, ultimately was his daughter and [the son]' (T:43; 12.04.12).
The son supports the contention that the represented person wanted him to handle the investment property transaction because '... that was very very stressful for him ... a lot of business terms and figures ... he had trouble discerning it" (T:47; 12.04.12). The son states that his father was sick and tired of the investment property matter because it was taking to long to finalise. He said that the represented person left it up to him to decide whether or not to proceed with the transaction.
NL says that she has never interfered in the represented person's business affairs, which was the clear understanding between them. In her written application, she states that she became aware of the new enduring power of attorney, the power of attorney and the new will in late August 2011 and in early September 2011, after noticing a yellow envelope in the represented person's room at the nursing home. When she showed the represented person the documents, she states that he said that he did not remember signing them. He was also surprised and distressed at the equal distribution of his estate to his son and daughter in the new will, reportedly stating that this was not his intention.
NL has submitted what purports to be an email dated 13 October 2011 sent to her by a nephew of the represented person. In the email, the nephew recounts a conversation he said he had with the represented person about the documents signed on 8 August 2011. In essence, the represented person is reported to have expressed concerns about the new will and the distribution of his estate; he mentioned that money had created jealousy between his son and daughter. It appears from the email that the represented person was not cognisant of the new enduring power of attorney.
Subsequent to the execution of documents by the represented person on 8 August 2011, a meeting was held with the represented person at the nursing home on 14 November 2011 to discuss the investment property. The son states that, as an attorney under the power of attorney, he should have been invited, but was not. ME states that the meeting was called at the express request of the represented person in order to determine the interest of the prospective purchaser, given the contract for sale had lapsed. Present were the represented person, PC (the architect who had had major carriage of the transaction for the represented person), ME, NL and a representative of the prospective purchaser. NL says that she was asked to attend the meeting by PC because he found it difficult to explain the matter to the represented person, as the represented person was now very nervous. NL was asked to help calm the represented person and explain the issues to him. NL states that she agreed, and explained things to the represented person as best she could, mainly by writing things down for him because he understood better when the explanation was in writing. Both ME and NL say that they were aware of the power of attorney in favour of the son; however, in the case of ME, he says that he did not know whether the power of attorney was in operation and, for NL, she says that the meeting was urgent and therefore not everyone could attend. ME states further:
The [represented person] was extremely stressed. He wanted to resolve the [investment property] issue. There was no suggestion that he had capacity or not capacity. It wasn't a question at the time. (T:54; 12.0412)
The son disputes that the meeting was urgent; he submits that the reason the meeting was held in such a rush and that he and his sister were not informed is because NL had gone to ME accusing them of wanting to take the represented person's money.
The son further submits that, even now, it is not necessary to sell the investment property; the represented person has cash reserves that will see him through for two years, and if any property needs to be sold, he and his sister have agreed it could be the tenanted property. He states:

... so in the event my father needed more money of course my sister was willing to sell [the tenanted property], which my father chose her to be the caretaker of that asset, because we knew that it was going to be taking a longer time to settle the sale of the [investment property] ... my father intended the [tenanted property] asset to be for her, for my sister ... if there was anything that had to be done on [tenanted property] that was going to be handled by my sister.(T:47 and T:48; 12.04.12)

What authority should be used to manage the represented person's estate?

I have decided that it is in the represented person's best interests that an administration order be used to manage his estate.

Although I make no specific finding on the represented person's capacity on 8 August 2011, I have sufficient doubt as to whether the enduring power of attorney made by the represented person on that day is a true reflection of his capacity at the time and his longterm intentions. I am therefore satisfied that an administration order should be made and the enduring power of attorney not be brought into force. I have decided in this way for the following reasons.
It is accepted by all the parties that the represented person has been a very independently minded person and has made his own financial decisions, taking advice when needed. He has struggled heroically over the past 12 months to maintain that independence in the face of a significant decline in his mental state and cognition.
As far back as April 2011 when the ACAT assessment was undertaken, it is reported that the represented person regularly suffered from shortterm memory problems and depression. He was occasionally confused. He was often disoriented to place. The evidence shows that this situation did not improve; it was no temporary phenomenon. By July 2011, the represented person's solicitor, KT, felt compelled to initiate contact with the represented person because, as he states, he was finding it difficult to obtain instructions in the investment property matter. KT then embarked on an extensive process to satisfy himself that he could accept instructions from the represented person, including explaining the advice and relevant documentation each time he attended to the represented person, as well as writing things down because, as NL states, by that time, the represented person was more reliant on written material. It appears the represented person could not adequately assimilate information presented verbally.

I am satisfied that it is more likely than not that between the meetings with KT, the represented person largely forgot what instructions he had previously given. This is consistent with KT going to the lengths he felt he needed to, to explain the new documentation to the represented person, including on the date of execution on 8 August 2011, again sensing the need to explain things to the represented person, taking an hour to do so. It is also consistent with NL's evidence, which I accept, that only some weeks after 8 August 2011, the represented person did not remember signing the documents that were before him with his signature, and also the son's evidence that he was given authority to deal with the investment property because the business terms and figures associated with the negotiations were beyond the capacity of the represented person by that time.
The increasing inability of the represented person to process verbal information was, in my view, another manifestation of the progressive decline of his cognition.
It is common ground that the represented person felt under significant stress during this period, particularly in respect to the investment property. He wanted that matter progressed and completed. I am satisfied that a combination of that stress and the impact of the cognitive decline, manifesting as it did in severe shortterm memory problems and attendant confusion, meant that the represented person was vulnerable to making reactive rather than considered decisions.
I am satisfied, on the evidence, that this was the case, even though I accept that KT made a concerted effort to satisfy himself that the represented person could give him instructions.
It is clear that those who care for the represented person tried hard to allow him to maintain his independent decisionmaking. The meeting of 14 November 2011 is an example of this. There was the continuing attempt to engage with the represented person in respect to his estate (the investment property in particular) to the extent that NL was called in to, in effect, 'interpret' for him because the point had been reached where people could no longer rely upon the represented person fully understanding complex matters that were being brought to his attention. This is not surprising, given that an MMSE undertaken in early September 2011 gave a result of 18/30 not much different to the result in February 2012 under the direction of Dr PKL (14/30) from which Dr PKL assessed the represented person as incapable of making personal and financial decisions.
In considering all of the evidence, I am satisfied that, for the purposes of deciding what is in the represented person's current best interests for the management of his estate, I cannot rely upon the enduring power of attorney executed on 8 August 2011. I also cannot rely upon the enduring power of attorney executed by the represented person on 3 April 2009, which was purportedly revoked on 8 August 2011. The joint attorneys in that instrument are ME and the daughter; they are not in communication, they have never acted jointly and the daughter lives overseas. ME is not aware of the circumstances upon which the represented person executed the instrument; he was never formally advised. It is difficult to say what the represented person intended.
To achieve certainty in the decisionmaking and to ensure adequate protection of the represented person's estate, I am satisfied that an administration order should be made and that there is no less restrictive alternative to the making of such an order.
Given the mistrust that exists between some of the parties, all the parties should be reassured that the appointed administrator will need to account to the Public Trustee on an annual basis for the decisions made and transactions undertaken on behalf of the represented person's estate (s 80 of the GA Act).
The administrator should be given plenary authority to enable that person to deal with all of the represented person's estate.

Who should be the administrator?

To appoint an administrator, the individual or person being proposed must first consent to their appointment (s 68(1) of the GA Act).
In the represented person's case, the son consents, as does ME. An alternative available to the Tribunal is the appointment of the Public Trustee.
As already stated, the primary submission of the son is that the enduring power of attorney made by the represented person on 8 August 2011 should be brought into operation. I have decided this should not occur. The alternative submission of the son is that he should be appointed the represented person's sole administrator. He states that he has discussed this with his sister, the daughter, who is said to support his appointment because he is more 'mobile' or available.
In her interview with the Public Advocate on 1 March 2012, the daughter is reported to have said, relevantly, that the son should be included in any decision relating to the represented person's finances and, further, that she is unsure of ME's intentions and has heard that he may be in a conflict of interest in respect to the represented person's estate.
The son's submission, in addition to that given in respect to the guardianship application, is that the represented person has supported his involvement in the management of his estate, as evidenced by the two enduring powers of attorney and the power of attorney for the investment property the represented person has made. The son states that:
•he would be able to perform the role of administrator;
•he is a qualified architect and a successful businessman;
•he will engage professionals when necessary;
•he is in contact with his sister, the daughter;
•he is part of the represented person's family;
and that the represented person has always wanted his children to be involved.
ME describes his involvement with the represented person in these terms:
I have looked after his income tax affairs for over 20 years and, during that time, sort of given 'advice' concerning his finances, generally, particularly his property investments, and always with a bit of tax bias, but I am aware of his activities for at least ... 20 years. (T:32; 12.04.12)
ME states that he has been involved at the periphery of the investment property matter because most of the work has been done by the architect, PC. ME says that he has not taken any instructions from the represented person since the meeting on 14 November 2011.
ME goes on to say that he has a great liking for the represented person, that he considers the represented person a friend of long standing, and that he is disturbed at what he has been through in the last 12 months. He states:
... [The represented person has] just been through a tremendous amount of stress. He's a very sincere person who I believe has done it tough in Australia. His family relationships have not been, to my perception, have not been very strong ... with his children. (T:63; 12.04.12)
ME states that, because of his relationship with the represented person, he would not expect to be remunerated for his role as administrator but would expect to continue to be paid for the income tax work he has undertaken for the represented person for many years. He submits that it would be impractical to appoint the son because he is mainly overseas. ME states that he would be in a better position to undertake the day-to-day financial activities and to report to the 'appropriate bodies'.
The son opposes the appointment of ME. He asks how ME can undertake the role of administrator without remuneration and questions whether ME would prefer the interests of a paying client over the represented person. The son expresses a concern that ME was a party to the meeting on 14 November 2011 at which the represented person was not assisted by independent legal advice. He submits that it has never been the intention of the represented person to have ME solely in charge of his financial affairs.
NL supports the appointment of ME as the represented person's administrator. Such an appointment, she submits, would act as a check on the son. In addition, ME has some experience in dealing with the represented person's financial affairs and he is a person of high integrity.
In his interview with the Public Advocate on 6 February 2012, the represented person is reported to have said (in addition to what is already stated in these reasons) that he believed that he was still capable of managing his business and financial affairs but, should that change, he would prefer ME to undertake that role. He is said to have described ME as his trusted friend and accountant.
I have decided to appoint ME as the represented person's plenary administrator. I have decided in this way for the following reasons:
•I have already found that the relationship the represented person has had with his children has, at times, been fraught and mediated by a measure of mistrust as to their intentions. I am satisfied that it was never the represented person's intention that his children alone have control of his estate. The evidence suggests that he has a view about what he sees as the potentially corrupting influence of money on his children.
•ME is compatible with the represented person and with the appointed guardian, NL (s 68(3)(a) of the GA Act).
•As far as can be determined given the represented person's cognitive decline, the appointment of ME is consistent with a recent expression of the represented person's wishes, namely, his statement to the Public Advocate (s 68(3)(b) of the GA Act).
•ME has a thorough understanding of the represented person's financial affairs by virtue of his income taxation and accountancy work for the represented person spanning 20 years. ME has professional expertise in the area of accounting and finance. I am therefore satisfied that he will be able to perform the functions proposed to be vested in him as administrator (s 68(3)(c) of the GA Act).
•ME has stated, and I accept, that he will not seek remuneration for his role as administrator. In any case, remuneration can only be paid when ordered by the Tribunal under s 117 of the GA Act.
As with the order for guardianship, I will set review of the administration order in five years (s 84 of the GA Act).
Account must be taken of the current arrangements under which NL currently resides in the represented person's property if, in fact, that arrangement is not based on a market transaction (s 72(3) of the GA Act). I will authorise the administrator to continue with the current arrangements, taking into account the known wishes of the represented person and given the longstanding relationship that the represented person has had with NL.
For the avoidance of doubt and because the enduring powers of attorney executed by the represented person on 3 April 2009 and 8 August 2011 are inconsistent with the administration order I have made, I shall revoke both enduring powers of attorney (s 108(1a)(a) of the GA Act).

Orders

Guardianship

1.(NL) is appointed limited guardian of the represented person with the following function:
Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.
2.The order is to be reviewed by 22 May 2017.

Administration

It is noted that the order extracted on 22 May 2012 does not include revocation of the enduring powers of attorney executed on 3 April 2009 and 8 August 2011 that was determined on 22 May 2012.
The order of 22 May 2012 is amended pursuant to s 83(1)(b) of the State Administrative Tribunal Act 2004 (WA) so that it now reads:
1.(ME) is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.(a) The enduring power of attorney dated 3 April 2009 by which (the represented person) appointed (the daughter) and (ME) to be his attorney be revoked.
(b)The enduring power of attorney dated 8 August 2011 by which (the represented person) appointed (the son) and (the daughter) to be his attorney be revoked.

3.The Tribunal notes that:
(a)the administrator is also the accountant for the represented person;
(b)the administrator has not sought an order for remuneration to be paid out of the estate of the represented person pursuant to s 117 of the Guardianship and Administration Act 1990 (WA); and
(c)the Tribunal authorises the administrator to continue to be paid his reasonable fees from the estate of the represented person for the income taxation and related work that he undertakes in accordance with the past arrangement with the represented person.

4.The administrator is authorised to continue the arrangement, previously agreed by the represented person, by which (NL) resides at the represented person's property at (address).
5.The order is to be reviewed by 22 May 2017.

I certify that this and the preceding [106] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER