PG
[2021] WASAT 81
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: PG [2021] WASAT 81
MEMBER: PRESIDENT PRITCHARD
MS F CHILD, MEMBER
MS H M LESLIE, SESSIONAL MEMBER
HEARD: 24 FEBRUARY 2021
DELIVERED : 10 JUNE 2021
FILE NO/S: GAA 3558 of 2020
PG
Proposed Represented Person
MB
MY
Applicants
Catchwords:
Guardianship and administration - Application pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) - Application to revoke enduring power of attorney - Application to appoint family members as administrators - Where conflicting medical reports as to represented person's capacity to make reasonable judgments in respect of estate - Where conflicting lay evidence as to represented person's capacity to make reasonable judgments in respect of estate
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A, s 17A(1), s 40(1), s 43, s 44, s 45, s 64, s 65, s 84, s 106 (1), s 107, s 109, s 110N
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)
Result:
Application dismissed
Representation:
Counsel:
| Proposed Represented Person | : | In Person |
| Applicants | : | In Person |
Solicitors:
| Proposed Represented Person | : | N/A |
| Applicants | : | N/A |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
GC and PC [2014] WASAT 10
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
REASONS FOR DECISION OF THE TRIBUNAL
The Application
MB and MY (Applicants), the daughters of PG, have applied pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) for a review by the Full Tribunal of decisions made by Member McGivern on 8 September 2020 (s 17A Application).
The first application which was heard by Member McGivern was an application made by MB pursuant to s 109(1)(c) of the GA Act to revoke an enduring power to attorney (EPA) made by PG in 2020, by which PG appointed her brother, KB, to exercise the powers of an attorney (2020 EPA). The second application before Member McGivern was an application by MB pursuant to s 106(1) of the GA Act, which permits the donee of an EPA to apply for a declaration that the donor no longer has legal capacity and to bring the EPA into force.
The relief sought in those two applications was inconsistent. The Tribunal discerned that what MB in fact sought was to revoke the 2020 EPA, together with an enduring power of guardianship (EPG) also made by PG in 2020 (2020 EPG), and to reenliven an earlier EPA made by PG in 2014 (2014 EPA). (Under the 2014 EPA, PG appointed her husband, RG, to be her attorney, and upon his death or incapacity from a mental disability, appointed MB and MY as her substitute attorneys.[1] RG passed away in November 2020.)
[1] The 2014 EPA was styled to be in effect from execution and was not subject to any restrictions.
On 27 July 2020, the Tribunal made case management orders to the effect that the application made by MB pursuant to s 109(1)(c) of the GA Act be treated as an application under s 40(1) of the GA Act for the appointment of a guardian and administrator for PG (which would also have permitted the Tribunal to consider the revocation of the 2020 EPA) and that the application made by MB pursuant to s 106(1) of the GA Act be treated as an application commenced under s 110N of the GA Act, which permits the Tribunal to revoke an EPG.
On 8 September 2020, Member McGivern dismissed the application for the appointment of a guardian and an administrator, and dismissed the application for the revocation of the 2020 EPG. The learned Member did not make any orders with respect to the 2020 EPA, so it continues in force.
At the hearing of the s 17A Application, we clarified that the Applicants' primary concern was with the administration of PG's estate. They sought to have the Tribunal revoke the 2020 EPA, and to reenliven the 2014 EPA, and in the alternative, to have the Tribunal appoint them as the administrators of their mother's estate.[2] They do not seek the appointment of a guardian for PG, as they accept that their mother is capable of making decisions in relation to her personal affairs.[3] The s 17A Application is thus concerned solely with the review of the decision made by Member McGivern to dismiss the application for the appointment of an administrator, leaving the 2020 EPA in place.
[2] ts 29, 24 February 2021.
[3] ts 31, 24 February 2021.
For the reasons which follow, we are not satisfied that the evidence establishes that PG is unable to make reasonable judgments in respect of matters relating to all or any part of her estate. That being the case, there is no basis for the appointment of an administrator. Further, the evidence does not establish that there is any basis to doubt that PG had capacity to make the 2020 EPA, or that KB is unable to carry out his duties as the donee of power under the 2020 EPA, so as to warrant the revocation of the 2020 EPA. The Application should therefore be dismissed.
In these reasons, we deal with the following matters:
(a)Factual background;
(b)Principles in relation to applications under the GA Act, applications for review under s 17A of the GA Act, and applications for the appointment of an administrator;
(c)Evidence before the Tribunal on the s 17A Application;
(d)The parties' positions on the s 17A Application;
(e)The primary issue: whether the requirements under s 64 of the GA Act for the appointment of an administrator have been met;
(f)Whether the Applicants have demonstrated that there exists any basis to revoke the 2020 EPA.
(a) Factual background
PG is an 83yearold woman who lives on a small rural property (property). The property comprises land held under separate titles: the front block, where the house, sheds and stables are located; a block where a sandpit is located; and another block of land (back block). During RG's lifetime, PG, RG and MY ran a farming business on the property, in partnership (farming business). The primary activity of the farming business appears to have been breeding cattle for sale, but the farming business also undertakes other farming and rural activities. MY and her partner and daughters also use the property to operate a related rural business.
Some family members live on the property and assist from time to time with maintaining the property and running the farming business. PG receives domestic support once fortnightly from a local service agency.
In the months prior to RG's death, his health declined, and MB moved to the property to reside with her parents, to assist PG in the care of RG. During that period, MB and MY became increasingly concerned about PG's ability to provide care for RG, to conduct the farming business and to maintain the property. Furthermore, that period of co-habitation appears to have exacerbated pre-existing disagreements and frictions in the relationships between PG and her daughters.
On 3 March 2020, PG executed the 2020 EPA, appointing her brother KB as her attorney, and appointing her niece, JDG, as a substitute attorney. The 2020 EPA was styled to come into effect on its execution, authorised PG's attorneys to do on PG's behalf anything that she could lawfully do by an attorney, was not subject to any restrictions, and was to continue in force notwithstanding PG's subsequent legal incapacity. The 2020 EPA did not contain a clause revoking the 2014 EPA.
Also on 3 March 2020, PG executed the 2020 EPG, in which she appointed KB as her enduring guardian, and JDG as a substitute guardian. The EPG provided that it had effect, subject to its terms, at any time that PG was unable to make reasonable judgments in respect of matters relating to her person, authorised the enduring guardian to exercise all the functions of an enduring guardian, and was not the subject of any restrictions.
Both the 2020 EPA and 2020 EPG were prepared by a solicitor. Later in these reasons we discuss in more detail the circumstances in which those documents came to be executed by PG.
(b) Principles in relation to applications under the GA Act, applications for review under s 17A of the GA Act, and applications for the appointment of an administrator
At the outset, it is appropriate for us to say something about the nature of the s 17A Application. Section 17A(1) of the GA Act permits any 'party' who is aggrieved by a determination made by the Tribunal consisting of one member, to request the President of the Tribunal to arrange for a Full Tribunal to review the determination. Reviews under s 17A come within the Tribunal's review jurisdiction.
The term 'determination' means, amongst other things, making or refusing to make an order under s 43, s 64 or s 109 of the GA Act.[4] The orders made by the Single Member on 8 September 2020 which are now under review are determinations for the purposes of s 17A of the GA Act. Although the applications before Member McGivern were commenced by MB alone, MY was a 'party'[5] to the proceedings before Member McGivern. She, like MB, is a party aggrieved by the determinations made by the Member, who is entitled to bring the application for a review of those determinations pursuant to s 17A.
[4] See the definition of 'determination' in s 3 of the GA Act.
[5] The definition of 'party' in s 3 of the GA Act includes a person to whom notice of the application was given.
As the Tribunal is exercising its review jurisdiction, the hearing of the s 17A Application was conducted as a hearing de novo. Consequently, the hearing was not confined to the matters that were before the Tribunal at first instance but involved the consideration of new material including evidence the Tribunal received in the hearing of the s 17A Application.[6]
[6] State Administrative Tribunal Act 2004 (WA) (SAT Act) s 27(1).
The purpose of a review is to produce the correct and preferable decision at the time of the decision on the review.[7]
[7] SAT Act s 27(2).
In dealing with proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4 of that Act.
The primary concern of the Tribunal is the best interests of any represented person or proposed represented person ((P)RP).[8] In considering any matter relating to a (P)RP, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[9]
[8] GA Act s 4(2).
[9] GA Act s 4(7).
In addition, every person is presumed to be capable of, amongst other things, looking after their own health and safety and making reasonable judgments in respect of matters relating to their person (collectively, decision-making capacity), until the contrary is proved to the satisfaction of the Tribunal.[10] That important presumption applies in respect of every application under the GA Act, including the present s 17A Application.
[10] GA Act s 4(3).
The decision made by Member McGivern which is the focus of the s 17A Application is the decision whether to appoint an administrator in respect of PG's estate. The Tribunal may appoint an administrator only if it is satisfied of the requirements set out in s 64 of the GA Act. The Tribunal must be satisfied, first, that the (P)RP 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 secondly, that the (P)RP is in need of an administrator of his or her estate.
Accordingly, even if a finding of incapacity is made under s 64(1) of the GA Act in respect of a (P)RP, the Tribunal must further determine whether that person is in need of an administration order. If the needs of a (P)RP can be met in a manner less restrictive of their freedom of decision and action than by the making of orders by the Tribunal, then orders should not be made.[11] (A less restrictive alternative might be to rely upon an existing EPA made by a (P)RP, appointing a suitable person to act for them in the event that they lose capacity.) If the Tribunal decides that the (P)RP is in need of an administrator then it must decide who should be appointed, what authority should be given to the appointee, and what review date should be set.[12]
(c) Evidence before the Tribunal on the s 17A Application
[11] GA Act s 4(4).
[12] GA Act s 43(1)(d), s 43(1)(e), s 44, s 45 and s 84.
Before turning to apply these principles in the present case, it is convenient to briefly outline the nature of the evidence which was before the Tribunal on the s 17A Application.
The Applicants sent the Tribunal a variety of documents in the form of statements of their views, or their observations of PG's conduct, or of KB's conduct as the donee of power under the 2020 EPA.
KB provided the Tribunal with documents in the form of statements of his views as to PG's capacity to make financial and other decisions, his observations of PG's conduct and the conduct of the Applicants; tax information in relation to the farming business; and copies of the 2020 EPA and 2020 EPG.
JDG also provided the Tribunal with documents in the form of statements of her evidence relating to the conduct of the farming business and the relationships within PG's family, and financial information in relation to the farming business and the property.
GW, a friend of PG's for many years, provided a number of documents in the form of statements of her evidence.
The Applicants and JDG attended the hearing in person and gave evidence and made submissions. PG and KB each attended the hearing by telephone, as did GW. After PG had given her evidence and made clear her views on the s 17A Application, she chose to disconnect her telephone link to the hearing, and did not participate in the balance of the hearing.
It appears that in recent years, PG has seen a number of general practitioners at the local practice, including Dr CC, Dr W, Dr S, Dr O and Dr P. She has seen two specialists for assessments of her capacity firstly Dr H and then Dr C for a second opinion.
The Tribunal had the benefit of medical reports from a number of these practitioners, most of which were before Member McGivern at the hearing on 8 September 2020:
•Reports from PG's treating general practitioners:
(a)Dr CC dated 14 August 2020 (relevantly, having known PG at that stage about a month, and having seen her three times, apparently including on that day);
(b)Dr W dated 11 December 2020 (relevantly, having known PG more than 10 years and having seen her twice in the last year, the last time being on 30 July 2020); and
(c)Dr P dated 26 January 2021 (relevantly, having met PG sometime in 2018 and having last seen her more than six months previously, sometime in 2020).
•Reports from specialist geriatricians –
(a)Dr H in letter form, dated 1 July 2020 addressed to Dr CC, and enclosing a copy of a Montreal Cognitive Assessment (MoCA) test result, which was given to PG on 1 July 2020, together with a report in the form of the Tribunal's Medical Report form, dated 4 August 2020; and
(b)Dr C in letter form, dated 25 August 2020, addressed to Dr S.
At the hearing of the s 17A Application, Dr H and Dr C gave evidence by telephone and were questioned by the Tribunal about their conclusions as to PG's decision-making capacity, and the basis for those conclusions.
The Tribunal also had the benefit of a report provided by Ms G, from the Office of the Public Advocate (OPA), who attended the hearing in person, and made submissions.
In addition, we had before us the transcript of the proceedings before Member McGivern on 8 September 2020, at which PG, MB, MY, KB, JDG, GW, and Ms G attended, and gave evidence. We have relied on that evidence in addition to the further evidence given at the hearing of the s 17A Application.
(d) The parties' positions on the s 17A Application
The key dispute between the parties concerns whether or not PG has lost capacity to make reasonable judgments in respect of matters relating to her estate. The Applicants say she has lost capacity to make reasonable judgments about her estate, is damaging the farming business because of decisions made about it, and is at risk of causing financial loss to her estate.
The Applicants submit that having regard to the medical evidence, the Tribunal should place greater weight on the opinion given by Dr H. They claim that Dr C relied on information provided by PG and/or KB which was not accurate and to that extent, Dr C's report should be regarded as unreliable.
The Applicants seek the revocation of the 2020 EPA. They appeared to submit that the revocation of the 2020 EPA would 'enliven' the 2014 EPA which, they say, should be allowed to operate. If it cannot so operate, then they seek the revocation of the 2020 EPA and the making of an administration order appointing them as the administrators of PG's estate.
The Applicants claim that PG was not competent at the time that she made the 2020 EPA. The Applicants also claim that KB is unsuitable to be PG's attorney as he is unfamiliar with the complexities and management of the farming business.
PG says that she retains the capacity to make reasonable decisions about financial matters, and disagrees with various proposals made by the applicants as to the management of the property and the farming business. PG says that if she needed any help with financial or personal matters, she would want KB to be the person who assists her, in accordance with her wishes as expressed in the 2020 EPA and the 2020 EPG. (She acknowledged that at one time she had appointed the Applicants as her substitute attorneys (for RG) but that she no longer wants them to act in those roles and prefers KB to act as her attorney and enduring guardian.)
PG, KB and JDG rely on the opinion given by Dr C in support of their claim that PG is capable of making reasonable judgments in respect of her financial affairs. They contend that Dr H's report should be rejected on the basis that it relied upon information provided by the Applicants which was not accurate. They further submit that, as Dr C spent part of the assessment time with PG in the absence of any family members, his opinion should be preferred.
KB and JDG were also of the view that PG is able to make decisions for herself. They say that if PG were unable to do so, then the 2020 EPG and the 2020 EPA should be allowed to operate; that KB is her choice and is a suitable person to act in the role of attorney and enduring guardian; and that where there are gaps in KB's knowledge about PG's business affairs, and KB needed further knowledge, he would and could seek advice.
(e) The primary issue: whether the requirements under s 64 of the GA Act for the appointment of an administrator have been met
It is convenient to commence consideration of the issues arising in the s 17A Application by considering whether the requirements under s 64 of the GA Act, for the appointment of an administrator, have been met.
As we have said, unless the Tribunal is satisfied that PG 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, it is not open to the Tribunal to appoint an administrator for PG. We turn, then, to consider the evidence which was before the Tribunal in relation to the question of PG's capacity.
Medical evidence
In his report, Dr P (who by the date of his report appears to have been working at a hospital and not in the general practice) stated that he had seen PG on four occasions in the 12 months preceding the date of his report but had not seen her for six months. Dr P indicated that he had not assessed whether PG had a mental disability, and was unsure as to whether PG had the cognitive capacity to make reasonable decisions in relation to simple or complex financial decisions, or legal matters.
Dr CC had seen PG three times in the 12 months prior to the date of her report, including on the date she provided the report. She noted that assessments of PG's cognitive capacity had been performed. Dr CC noted that a cognitive assessment known as a Mini Mental State Exam (MMSE) was done on 30 July 2020 in which PG scored 28 out of 30. The significance of this score is referred to later in these reasons. (The Tribunal has not seen that test assessment.) Dr CC also referred to a MoCA assessment dated 30 July 2020 but did not provide a score. (The Tribunal has not seen a MoCA test assessment bearing that date.) Dr CC opined that PG had had a mental disability, in the form of 'mild cognitive impairment', since early 2020. She did not provide any further detail in respect of that diagnosis. However, Dr CC opined that that condition was static.
Dr CC expressed the view that as at 14 August 2020, PG had the cognitive capacity to make simple financial decisions, to make all personal and legal decisions, to execute an EPA, EPG or advance health directive (AHD), and to vote. In relation to complex financial decisions, Dr CC stated that she was 'unsure' as to PG's capacity and noted that she was awaiting a capacity assessment from Dr C (to whom PG had by then been referred by Dr S).
In his report, dated 26 January 2021, Dr W stated that he had known PG for more than 10 years, and had seen her twice in the 12 months prior to the date of his report. Dr W indicated that he was unsure whether any assessments of PG's cognitive capacity had been performed. In relation to the question whether PG had a mental disability, Dr W opined that there was an 'unclear diagnosis'. Nevertheless, Dr W expressed the view that PG had cognitive capacity to make reasonable decisions in relation to simple and complex financial matters, in relation to legal matters and in relation to personal matters, and that she continued to have the capacity to execute an EPA, EPA or AHD, and to vote.
As we have already observed, we also had written reports from Dr H and Dr C, and had the benefit of oral evidence from both of them. We accept that Dr H and Dr C are highly qualified specialist geriatricians.
It appears that Dr H reviewed PG on or before 1 July 2020 in the company of the Applicants. He was, at the time, the consultant with the care of RG. PG was referred to him by Dr CC for an opinion, due to concerns expressed by the Applicants as to how PG was managing the care of RG.
Dr C subsequently reviewed PG in response to a referral by Dr S. His opinion was sought because PG was unhappy with the opinion of Dr H and sought a second opinion. Dr C saw PG on 6 August 2020, a little over one month after Dr H. At that appointment, PG was accompanied by KB and JDG but PG also spent a period of approximately half an hour with Dr C without her family members present.
Each specialist saw PG only once. Each of them assessed her by interview and observation, had regard to the medical records with which they had been provided, and received collateral information from the different family members who accompanied PG on each occasion. It appears the collateral information with which each specialist was provided was not consistent and substantially reflected the differing viewpoints of the particular family members present. Each specialist also had PG undertake a cognitive assessment test.
Dr H's reports
In his letter to Dr CC, Dr H noted that he had had PG undertake a MoCA test, in which she scored 18/30 (MoCA score). He also referred to the information provided by the Applicants. Dr H stated that PG 'was quite evasive but had good long term memory and presented quite well'. He expressed the view that she was 'an elderly dementing lady who is an alcoholic living on her own with no clear future plans'. He further expressed the view that '[PG] does not have financial cognitivity'. Dr H relevantly referred to a diagnosis of 'dementia syndrome' but noted a need 'for further investigations to establish the underlying degenerative cognitive impairment'. He referred to the need for brain imaging and that he would follow up in three months and organise further investigations for her dementia.
In his report to the Tribunal, which was expressed in far briefer terms than his letter to Dr CC, Dr H reported a diagnosis of progressive dementia. He expressed the view that PG was incapable of making reasonable decisions in all of the financial, legal and personal spheres referred to in the report and that she was unable to execute an EPA, EPG or AHD, or to vote.
Dr C's report
In his letter to Dr S, Dr C referred to a number of PG's medical problems but did not identify any form of mental disability. He relevantly referred to the dispute concerning PG's capacity. He noted concessions by PG and her accompanying family as to some forgetfulness and to the misplacing of some personal items, and to some alcohol intake.
Dr C gave evidence that he was surprised by the MoCA score in the test arranged by Dr H (of which he had been made aware prior to his assessment). Dr C said that that score was surprising, in light of his own clinical observations of PG, whose cognitive deterioration he gauged as mild. Dr C stated that PG had given him a 'thorough and coherent explanation' of her business affairs. He noted collateral information from KB which was consistent with what PG had told him.
Dr C noted the dementia diagnosis in Dr H's letter but expressed the view that the letter 'does not actually detail any evidence to support this view'.
Dr C did not challenge Dr H's use of the MoCA test. However, in his assessment of PG, Dr C used a different assessment tool known as the Free and Cued Selective Reminding (FCSR) Test. Dr C gave evidence that this was a test he used when he suspected there to be a cognitive deficit that was subtle or minimal. Dr C described the FCSR test as a test of episodic memory, rather than a global assessment of cognitive function. He gave evidence that in the majority of cases, episodic memory is one of the first deficits that occurs in neurodegenerative disease and that he had used the FCSR test because, to that point, he had formed the impression that PG was 'not too impaired'.
On the FCSR assessment, PG scored 47 out of 48, described by Dr C as a 'nearly perfect' score, and interpreted by him in the circumstances to mean that she demonstrated normal cognitive function. Dr H did not challenge the use of the FCSR test, or Dr C's assessment of PG's result on that test.
In his letter to Dr S, Dr C stated that PG 'in no way' met the criteria for cognitive impairment and that in his view there was no evidence available to him to rebut the presumption that PG was capable of exercising her authority as the donee of power under the EPA made by RG.
Dr C surmised that there could be alternative explanations for PG's low MoCA score, including PG's low educational status, or that, on the basis of information provided to him by family, it was possible that PG was suffering from a urinary tract infection on the day she undertook the MoCA test for Dr H.
Oral evidence given by Dr H and Dr C at the hearing
The vastly different results of the MoCA test and the FCSR test which PG undertook for Dr H and Dr C respectively, and the diagnoses which followed their consultation with PG and her family members, are incongruous. That incongruity, and any explanation for it, was the focus of the questions we asked of Dr H and Dr C in the course of their oral evidence.
Dr C described the disparity between the two sets of test results as 'bewildering'.[13] In particular, he referred to the disparity between the episodic memory component embedded within the MoCA test (in which PG scored only 2 out of 5) and the FCSR test result.
[13] ts 16, 24 February 2021.
It was common ground between Dr H and Dr C that PG's MoCA score would usually be regarded as consistent with abnormal cognition. Dr C gave evidence[14] that:
as [Dr H] has already mentioned, a clinician would assess a person's functional ability in the context of the history of the memory or cognitive loss. So dementia, in broad terms, is when a person with cognitive loss is no longer able to function at a previously attained level, and that is quite an arbitrary designation because every individual is different and what constitutes loss of function for one person may be irrelevant for another person. But I agree a score of 18 out of 30 [the MoCA score] would usually represent a person who is in the dementia phase of a neurodegenerative illness but not always. (emphasis added)
[14] ts 1617, 24 February 2021.
We also discussed with Dr C and Dr H the MMSE score of 28/30 to which Dr CC referred in her report to the Tribunal. Dr H agreed that that score was in the normal range but stated that an MMSE score can 'not infrequently [be] in the normal range in people [who] are impaired cognitively'.[15]
[15] ts 24, 24 February 2021.
Dr C stated that:[16]
The score of 28 out of 30 … is more consistent with my findings than the … MoCA [score]. The [MMSE] is a less robust test, so it is quite possible for quite impaired people to score well on the MMSE. The MoCA is a more robust test but having said that, the score on the [MMSE] is more consistent with the score on the [FCSR] test.
[16] ts 17, 24 February 2021.
Dr C also noted that 'it is not unusual for a person to perform variably from one day to another'.[17]
[17] ts 15, 24 February 2021.
On the basis of the information provided to him by the Applicants, Dr H also suggested that the test discrepancies might be accounted for if alcohol use was a factor (as he had been told it was). He stated that although PG did not demonstrate overt signs of alcohol use on the day of his consultation, 'many people that are chronically dependent on alcohol don't have overt signs of being inebriated'.[18]
[18] ts 18, 24 February 2021.
The position therefore is that two well qualified, independent specialists formed different views of PG's capacity at single interview assessments on different days a little over one month apart. The difference cannot be explained by a deterioration in PG's capacity in the period between the two assessments, as the more recent expression of opinion was of capacity rather than incapacity.
In questioning by the Tribunal, both specialists ultimately agreed that the explanation for the difference in the two opinions and two sets of test scores, likely came down to several contributing matters:
(a)the accuracy of the differing collateral information provided by the accompanying family members against which to judge PG's answers;
(b)the possible presence of some sort of medical condition (such as an infection) present on 1 July 2020 and impacting on PG's cognition when she saw Dr H; and
(c)the possible involvement of alcohol, albeit not overtly apparent, on the day of Dr H's assessment.
Dr C gave evidence that in the circumstances 'I don't think either of us is in a position to make any firm conclusions about an underlying pathological diagnosis'.[19]
[19] ts 22, 24 February 2021.
Dr H stated 'I fully concur'[20] and went on: 'I think the reality in this sort of situation [is that] we would have to redo the testing and reassess the person again … independently and see if we could seek more broad information from informants'.[21] This was consistent with the reference in his written report to the need for further investigations to be conducted. Dr H agreed with the proposition that '[he] needed further information in order to get clarity about exactly what was going on'.[22]
Conclusions from the medical evidence
[20] ts 22, 24 February 2021.
[21] ts 22, 24 February 2021.
[22] ts 23, 24 February 2021.
The Tribunal accepts that the evidence of both geriatricians represented their genuinely held opinions based on the information available to them at the time of their assessments.
Notwithstanding Dr H's expressions of opinion, in his written reports, that PG suffered from dementia syndrome and progressive dementia, it was apparent from the evidence set out in [71] above that, by the time of the hearing, and in light of the opinion expressed by Dr C and the basis for his opinion, Dr H no longer held that opinion, either at all, or at least with the same degree of certainty as expressed in his reports.
Furthermore, it was apparent from their evidence in the hearing that both Dr C and Dr H agreed that in view of the different test results, and the different information provided by PG's family members, upon which each of them had relied, it was not possible to draw any firm conclusion about an underlying pathological diagnosis. We understood that evidence to amount to an acceptance by the two expert geriatricians that no firm conclusion could be reached as to whether PG suffers from a mental disability which interferes with her capacity to make decisions.
There has been no more recent examination of PG's cognitive functioning or assessment of her decision-making capacity. The last medical consultation reference in the reports relating to capacity was PG's consultation with her general practitioner Dr CC on 14 August 2020, some 10 days after Dr C's consultation. As we have already noted, the report of Dr CC referred to a diagnosis of mild cognitive impairment, but expressed the view that PG had decisionmaking capacity in all respects, save for that of complex financial decisionmaking. Even in that respect, Dr CC was 'unsure' about PG's capacity, and was clearly awaiting the report of Dr C.
The most recent medical report was that of Dr W, who saw PG two weeks prior to Dr CC, and who was of the view that PG had the cognitive capacity to make reasonable decisions in relation to all financial, legal and personal decisionmaking areas.
Looking at the medical evidence as a whole, and taking into account the agreement of the expert geriatricians in the course of their evidence at the hearing (especially the confirmation by Dr H that despite his initial diagnosis, more investigation was in fact required to clarify the position), the preponderance of the medical evidence available to us does not support the conclusion that PG has lost capacity to make reasonable judgments in respect of her estate.
In our view, therefore, the medical evidence as a whole does not support the conclusion that, by virtue of a mental disability, PG is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
However, other evidence is also relevant to that question. We turn to consider the evidence given by the lay witnesses.
Evidence of the lay witnesses
PG's views and wishes
PG attended the hearing by telephone. The Tribunal thus had the opportunity to hear from her, but not to observe how she presented or her demeanour on this occasion.
Prior to her somewhat abrupt cessation of participation in the hearing shortly before the luncheon adjournment, PG presented well to the Tribunal and appeared coherent and rational, if a little 'testy' at times. She spoke reasonably, albeit in general terms, about the current and past operations of the farming business and her own affairs. PG accepted that at various times she has had to seek assistance with aspects of maintaining the property and the farming business, from persons including family, friends and her accountant. Given her age, it was hardly surprising that she would need that assistance. PG was clear in her views and articulated them quite independently. She was clearly upset and distressed by what she considers to be interference in her life and her affairs by her daughters. PG appeared offended by their assessment that she was incapable of managing her affairs and frustrated by what she saw as their interference in her life.
As earlier set out, PG opposed the applications made to the Tribunal by MB, asserting that she could make her own decisions and that if she needed any help, she wanted KB to be the person who assisted her, in line with her appointment of him under the 2020 EPG and 2020 EPA. (She acknowledged that she had at one time appointed the applicants as attorneys but said that she no longer wanted this.)
The Applicants' evidence
In their evidence, the Applicants provided many examples of actions, inactions and behaviour by PG which they alleged had occurred and were evidence of her incapacity. In summary, those examples provided to the Tribunal included PG's:
•getting lost visiting a nearby country town;
•permitting misuse of her EFTPOS card by her grandson;
•failure to cancel or retrieve the card in a timely way;
•inability to remember her PIN number;
•episode of confusion at a lunch at a sporting meeting;
•inability to remember discussions and her agreement with the Applicants regarding the sale of livestock;
•leaving certain bills unpaid;
•apparent inability to negotiate and move forward with the necessary sale of the back block, in order to provide her with funds to live on;
•endeavours to obtain a bank loan, despite her circumstances;
•demeanour and behaviour towards her late husband and the Applicants since late 2019;
•fabrication of factual matters; and
•drinking and erratic behaviour, including public discussion of private family matters, contrary to her past practice.
PG, KB and JDG disputed almost every allegation made by the Applicants, either stating that what was alleged was false, or providing an alternative explanation for the alleged matters. Examples were that:
•PG had permitted her grandson to use her EFTPOS card;
•PG's inability to move forward with the sale of the back block was due to matters outside of her control. Initially, this was due to the fact that a caveat over the title was lodged by the Public Trustee, in the exercise of powers conferred by an order of the Tribunal, pursuant to s 65 of the GA Act, in relation to RG's estate. Since RG's death, PG was unable to deal with the back block because it formed part of RG's estate and probate had yet to be granted;
•a loan cannot be obtained by PG because the property is security for MB's home loan;
•the issue of PG's consumption of alcohol has been exaggerated; and
•there have been legitimate differences of opinion between PG and her daughters as to the financial steps which need to be taken in relation to PG's estate and the farming business, such as the sale of cattle, the use of funds and assets including vehicles, and the sale of the back block.
PG and KB claim the Applicants' interference in her life and affairs has impeded her ability to progress her affairs. They implied that the Applicants were financially motivated to interfere in PG's estate because of MB's housing loan arrangements and MY's interests in the farming business.
Although they acknowledge these financial interests, the Applicants deny fabricating their claims or acting to advantage themselves. They say they know their mother and the farming arrangements better than KB and that they have always acted only to protect and assist their parents. They allege that KB does not act in PG's best interests.[23]
GW's evidence
[23] ts 85 and 118, 24 February 2021.
GW's evidence was that she is in regular contact with PG by telephone and visits her in person at least monthly and that there is nothing wrong with PG's mental capacity. GW supported the decision-making for PG staying with KB.
The Public Advocate's views
The Tribunal had the benefit of a report from the OPA investigator dated 2 September 2020 which was prepared for the hearing before Member McGivern.
Ms G, who prepared that report, made further short submissions to the Tribunal at the hearing of the s 17A Application. She submitted that there was not significant evidence to say that PG had a mental disability, and while she might make decisions that were not approved of by the Applicants, those decisions should remain hers to make, in the absence of evidence of cognitive impairment.[24]
Conclusions in relation to the evidence of PG and the lay witnesses relevant to PG's capacity
[24] ts 7677, 24 February 2021.
PG presented her views cogently and forcefully. However, while we have certainly taken PG's views into account, she is not a reliable witness in relation to her own cognitive capacity.
As for the evidence of the Applicants, KB and JDG, it is not in dispute that in recent years, following the deterioration in RG's health, relationships within PG's family, and in particular those between PG, KB and JDG, on the one hand, and the Applicants on the other, have significantly deteriorated to the point where there now exists a complete breakdown and loss of trust. There is very little common ground and almost every factual issue is disputed. We have therefore approached the evidence of the Applicants, and of KB and JDG, with caution.
It appeared to us that some of the issues of concern raised by the Applicants could be explained by the fact that PG needs practical support and assistance, rather than on the basis that PG suffers from deficits in her cognitive capacity. Furthermore, some of the issues identified by the Applicants may well be explained by a difference of opinion as to what should be done in relation to the property or the farming business, rather than by any cognitive deficit in PG. As has been said many times in the Tribunal, people have the right to make decisions which others may regard as unreasonable or unwise, provided that they have the capacity to make those decisions. We well appreciate that this is often to the great frustration of family members, who with good intentions seek to protect loved ones from poor decision-making, whether or not those decisions are attributable to incapacity.
Against that background, and in the absence of objective evidence which corroborates the claims by the Applicants, or the explanations or counter claims by KB and JDG, in relation to the rationality of PG's decision-making, or her memory, we place little weight on the evidence given by those witnesses.
As for GW, her evidence was limited in its scope, by virtue of the limited frequency and context in which she has contact with PG. While we accept her evidence, the weight it carries in our assessment of PG's capacity to make decisions about financial matters is necessarily limited.
In the end, having regard to the evidence of the lay witnesses, considered in isolation, we are not satisfied that PG 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.
Findings - whether PG 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
We turn, now, to consider the evidence bearing on the question of PG's capacity, in its entirety. In doing so, we bear in mind the presumption of capacity under the GA Act. In GC and PC[25] the Full Tribunal observed:
The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the Act. Because of the significant consequences for an individual of having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.
[25] GC and PC [2014] WASAT 10 [36].
The statutory presumption of capacity constitutes the starting point in any application under the GA Act where the decisionmaking capacity of a (P)RP is in issue. A (P)RP need not prove that they have decisionmaking capacity. The Tribunal starts from the position that the (P)RP has capacity (by virtue of the statutory presumption). That remains the position unless and until a lack of decisionmaking capacity is proved. The question is whether the evidence before the Tribunal establishes that the (P)RP does not have decisionmaking capacity. The standard of proof applied by the Tribunal is, of course, the civil standard. However the significant consequences of a finding that a (P)RP does not have decisionmaking capacity are such that clear and cogent evidence will be required to establish the facts on which that conclusion depends, in order for the Tribunal to be satisfied on the balance of probabilities that the (P)RP does not have decisionmaking capacity.[26]
[26] Cf Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-362 (Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171-172 (Mason CJ, Brennan, Deane and Gaudron JJ).
Having regard to the issues and limitations we have identified pertaining to the lay witnesses' evidence, and, more significantly, to the evidence of Dr H and Dr C, and to the written reports of PG's general practitioners, Dr W and Dr CC, clear and cogent evidence has not been adduced which is sufficient to establish, on the balance of probabilities, that PG is unable to make reasonable judgments in respect of matters relating to her estate. Consequently, we are not satisfied that, by reason of a mental disability, PG is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
In those circumstances, the Tribunal does not have power to make an administration order. Even if we were persuaded that the evidence established that PG was unable to make reasonable judgments about her estate, the Tribunal would be required to consider whether PG was in need of an administrator of her estate. Relevant to that consideration would be the existence of the 2020 EPA. We are satisfied that the 2020 EPA reflects PG's expressed wishes for the management of her estate in the event of any loss of decisionmaking capacity. For the reasons set out below, there was no evidence to suggest that PG did not have capacity to make the 2020 EPA, or that it should be revoked on any other basis.
(f) Whether the Applicants have demonstrated that there exists any basis to revoke the 2020 EPA
We note that the 2020 EPA was executed by PG and witnessed by a solicitor, and by a staff member of the solicitor's firm. At the hearing before Member McGivern, KB gave evidence that the 2020 EPA was prepared at the request of PG by an independent lawyer to whom he took PG at her request. KB's evidence was that the lawyer interviewed PG, and spoke to her, on her own, for about 20 minutes, before the document was executed.[27] There was no evidence before us to contradict that evidence.
[27] ts 1920, 8 September 2020.
We find that the 2020 EPA was executed by PG on or about 3 March 2020. We find that the 2020 EPA was prepared for PG by a solicitor, who spoke to her, alone, prior to the execution of the document. No solicitor, acting in accordance with his or her professional responsibilities, would have been prepared to witness the execution of an EPA had he or she held doubts as to the capacity of the donor to make the EPA. In those circumstances, we infer that at the time of the execution of the EPA, the solicitor did not have any information to cast doubt on PG's capacity to make the EPA.
We understood that the Applicants relied on their evidence - as to the decline in PG's cognitive capacity in the months after RG's health began to deteriorate, including the period around March 2020 - to cast doubt on whether PG had the capacity to enter into the 2020 EPA. For the reasons set out above at [91] – [93], we place little weight on that evidence.
There is no medical evidence before the Tribunal which is sufficient to establish that at the time of the execution of the 2020 EPA, PG was not capable of making the decision to grant a power of attorney. To the contrary, the reports of Dr CC and Dr W specifically and unequivocally express the view, based on having seen PG some months after the execution of the 2020 EPA, that PG remained capable of signing an EPA.
The evidence before us is therefore not sufficient to prove, on the balance of probabilities, that at the time she executed the 2020 EPA, PG lacked the capacity to do so. On the evidence before us, no other basis, arising from the circumstances in which the 2020 EPA was executed, has been shown which would warrant the revocation of the 2020 EPA.
The obligations of the donee of an EPA are set out in s 107 of the GA Act. The donee is required to act with reasonable diligence to protect the donor's interests and to keep and maintain records of any dealings and transactions undertaken in the exercise of the power. For the reasons set out at [91] above, the evidence does not establish that KB is unable to discharge those obligations.
Consequently, even if we had concluded that PG is unable, by reason of a mental disability, to make reasonable judgments about her estate, we would not have appointed an administrator for her estate. The 2020 EPA constitutes a less restrictive alternative to the making of an administration order, so that there would have been no need for an administration order.
Orders:
Accordingly we make the following orders:
1.The application dated 9 September 2020 for a review, pursuant to s 17A of the Guardianship and Administration Act 1990 (WA), of the decisions of Member McGivern made on 8 September 2020 is dismissed.
2.The orders made by Member McGivern on 8 September 2020 are affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JK
Research Associate to the Honourable Justice Pritchard
10 JUNE 2021
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