PL and SL
[2012] WASAT 167
•10 AUGUST 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PL and SL [2012] WASAT 167
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 28 FEBRUARY 2012 AND 4 JULY 2012
DELIVERED : 10 AUGUST 2012
PUBLISHED : 16 AUGUST 2012
FILE NO/S: GAA 350 of 2012
BETWEEN: PL
Applicant
AND
SL
Represented person
Catchwords:
Guardianship and administration Administration Mental disability Memory impairment as a mental disability Need to consider effects of mental disability in context of environment in which the person makes reasonable judgments Ability of person to make reasonable judgments relates to their particular estate Best interests concerned with overall interests of person to whom protection is directed and their separate and independent welfare
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(a), s 4(2)(b), s 4(2)(e), s 4(2)(f), s 41(1), s 64, s 64(1)(a), s 68, s 69, s 71, s 71(3), s 84, s 97(1)(b)(iii), s 108, s 108(1)(a), s 108(1a)(a)
Result:
Administrator appointed
Category: B
Representation:
Counsel:
Applicant: Mr J Hammond
Represented person : Mr F Sammut
Solicitors:
Applicant: Hammond Legal
Represented person : Civic Legal
Case(s) referred to in decision(s):
Charlton v Baber [2003] NSWSC 745
FS [2007] WASAT 202
Public Trustee v Blackwood [1998] 8 TasR 256
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
An application for an administration order was made for an 87yearold man by one of his two sons. The sons had been in significant conflict for many years.
The man's estate consisted of the property in which he lived and bank deposits. He was in receipt of pension income.
The man was assessed as having a problem with his memory, particularly his shortterm memory. Despite this, he was assessed by his medical practitioners as being able to manage his financial affairs.
The man had made a number of wills and enduring powers of attorney to the benefit of one son or the other.
He had gravitated towards one son and had ostracised the other.
The Tribunal found that the existence of the memory impairment constituted a mental disability for the purposes of the relevant legislation because it impacted on the man's cognitive processes. It did not matter that the origin of the impairment had not been formally diagnosed.
The Tribunal was satisfied on the evidence that the man's memory problems impacted on his ability to make reasonable judgments about his estate in the particular environment in which he found himself.
That environment was a very difficult one. His two sons were at war with each other and their actions were filtered through that conflict. This placed an enormous stress on the man because he relied on each of his sons at various times. The Tribunal found that this stress compounded the effects of his memory impairment.
The Tribunal therefore considered the assessments of the medical practitioners in light of the finding about the environment in which the man made his judgements about his financial affairs, and found that the evidence did not support the conclusions of the medical practitioners.
The Tribunal was satisfied that the man's estate was in need of protection, but that the protection should be limited to the bulk of the deposits funds and his real property. The man could continue to manage his pension income and have direct access to a small bank deposit.
The magnitude of the conflict between the sons, and the reliance the man placed on them, precluded the possibility of a less restrictive alternative to the making of an administration order.
The Public Trustee was appointed the limited administrator of the man's estate for a period of five years.
Introduction
SL (represented person) is an 87yearold Italian man who has lived on his own in the family home since the death of his wife in late October 2011.
The represented person has two sons, PL and RL, who are in significant conflict and have been for many years.
On 27 January 2012, PL made an application for the appointment of an administrator of the estate of the represented person. The application is opposed by the represented person and RL.
The represented person has executed two enduring powers of attorney. The first, which was able to begin immediately, was made on 5 December 2009 in favour of his late wife with PL as the substitute attorney (2009 EPA). The instrument was purportedly revoked on 23 February 2012.
The most recent enduring power of attorney was executed by the represented person on 15 February 2012 in favour of RL, but can come into force only upon a declaration of legal incapacity by the Tribunal (2012 EPA).
The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
The application was heard on 28 February 2012 (first hearing) and 4 July 2012 (second hearing). The first hearing was adjourned to enable the represented person to undergo a capacity assessment by a specialist medical practitioner.
The hearings were attended by the represented person, PL and RL. The represented person was legally represented at the first hearing, but not at the second hearing. PL was legally represented at both hearings.
The represented person was assisted by an interpreter in the second hearing.
The principles of the GA Act
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 (Re The Full Board) 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 ill-considered personal decisions or action, or by unscrupulous or ill-advised 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 making of an administration order under the GA Act results in the removal of basic decisionmaking rights of a person, Parliament requires that such an order is made only when the presumption of capacity has been displaced and a need has been demonstrated to the satisfaction of the Tribunal.
The relevant provisions of the GA Act are:
In deciding whether an administrator should be appointed:
Section 3terms used
Section 64making of administration order
If an administration order is made:
Section 68 who may be appointed administrator
Section 69authority of administrator
Section 71authority which may be conferred on administrator
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.
These provisions are to be read subject to the principles of the GA Act which are set out in s 4, and which state:
(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 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 application for an administration order 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.
The evidence and submissions of PL
PL states that he made the application for an administration order out of concern for the represented person and to ensure that his brother, RL, did not influence the represented person to make decisions that would have an adverse impact on his financial stability.
He says that RL came back into the represented person's life after the death of their mother, and he has since taken a controlling interest in the affairs of the represented person. For example, RL is alleged to have badgered the represented person into gifting him $10,000, which PL submits is a form of exploitation.
PL states that he noticed a decline in the represented person's mental state some time prior to the death of his mother in October 2011. He recounts the represented person having difficulty dealing with correspondence about his Italian pension, and also with the renewal of his driver's licence. The represented person is reported to have persisted in driving without a licence until, PL states, he and his mother decided to sell the motor vehicle to stop the represented person from driving.
PL states that he was estranged from his parents for some years, but in December 2009 he was appointed as executor of the represented person's will (2009 will) and his substitute attorney under an enduring power of attorney (2009 EPA). PL said that he was given these roles as a protection against the possible influence of RL. The previous will of the represented person had divided his estate (should his wife predecease him) equally between PL and RL and their two sons. The 2009 will removed RL's son, allegedly because of his errant behaviour.
PL says that he decided to play a more active role in the affairs of the represented person after the death of his mother, because the represented person appeared to be often disoriented and confused. The represented person was also grieving over the death of his wife.
PL states that the represented person was having problems remembering things. He had significant cash in safes in his home, but was leaving the keys to the safes in open view. He misplaced the safe and house keys. He would telephone and then forget why he had called.
PL states that he and his family took the represented person on a short holiday in the southwest of the State. During that time, the represented person would forget how long he had been away and would daily, and repeatedly, ask if they were going home that night. He would also regularly forget where his bedroom was situated and would wander at night looking for it. His memory was worse in the evenings.
PL says that he arranged for the payment of his mother's funeral costs and other accounts outstanding at the time. He says that, recently, the represented person asked for $7,000 to be given to him so he could pay the funeral costs and he needed to be reminded that the account had been paid.
PL states that he does not approve of his brother's (RL) lifestyle and has not had a relationship with him for many years. PL says that RL resumed some contact with him after the death of their mother, but it was only in relation to the represented person's will. Upon a request, PL had advised RL of the contents of the 2009 will and, soon after that information had been provided, RL reportedly spoke with the represented person and then told PL that the represented person wanted PL's son removed from the will.
PL states that he and RL spoke with the represented person and it was agreed that a new will should be made with PL to receive 60% of the estate (on the basis that he would look after the represented person) and RL 40%. PL says that he typed the will document and he and his father went to a pharmacy on 20 December 2011 to have it signed and witnessed (2011 will).
PL says that he would have accepted a 50/50 share on the basis that he and RL share the care needs of the represented person.
PL states that the day after the signing of the 2011 will, RL telephoned him in an agitated and abusive state demanding that the estate be split equally between them. RL is alleged to have contacted the represented person on a daily basis harassing him about the will. PL says that the represented person telephoned him and said he wanted to obtain a restraining order against RL, and also to remove RL from his will.
RL was said to be spending a great deal of time with the represented person at his home, which, PL says, was preventing him discussing things with the represented person.
PL states that upon visiting the represented person at a time when RL had returned to his home, the represented person asked him about the 2011 will and seemed not to remember that he had recently made that will. The represented person is reported to have said that he and RL had an appointment with RL's solicitor to make a new will (as it transpired a new will was made on 25 January 2012 appointing PL and RL as executors, and dividing the estate equally between them (2012 will). Soon after, on 15 February 2012, an enduring power of attorney was executed by the represented person in favour of RL (2012 EPA)).
At this time, in early 2012, PL states that he had contact with the represented person's bank using his authority under the 2009 EPA. It was there that he found out that a cash deposit of $33,800 had been credited to a bank account of RL on 28 December 2011, and from that account $36,000 had subsequently been withdrawn in various amounts in cash over a short period of time (cash withdrawals), namely:
•29 December 2011, $10,000;
•4 January 2012, $1,000;
•10 January 2012, $2,000;
•25 January 2012, $4,000;
•30 January 2012, $10,000;
•2 February 2012, $3,000;
•6 February 2012, $4,000; and
•8 February 2012, $2,000
PL submits that this was not typical behaviour of the represented person, and he was concerned that RL was involved and that, as a consequence, further funds of the represented person were at risk. He therefore arranged with the bank to effectively quarantine the bulk of RL's bank funds into two accounts, one a deposit account, $185,000, and the other an account with approximately $4,500, comprising accrued interest on the larger deposit. The account into which the represented person's pensions were paid remained under his direct control.
According to PL, the bank deposits and the unencumbered property in which the represented person resides is what essentially comprises his father's estate.
PL states that he also lodged a caveat over the represented person's property for further protection.
PL states that during this period, RL communicated with him in a threatening manner and made derogatory statements about the represented person. PL states that the main thrust of RL's communication was about the represented person's estate and their respective entitlements in the represented person's various wills.
In one example, PL refers to a visit he made to the represented person on 2 June 2012. The represented person is reported to have said to PL that he had not contacted him since his wife had died, but that he wanted to renew their relationship. PL says he reminded the represented person he had dropped in to see him on most days until the new year, that they had Christmas lunch together and that they had the holiday in the southwest of the State. The represented person had asked for $5,000 from the quarantined deposit, but could not give a reason why the funds were needed. He told PL that he had torn up the 2012 will and wanted PL to call his lawyer or RL, so that a new will could be made.
PL says that he contacted RL that day and RL is alleged to have confirmed that the will had been destroyed by the represented person; that he had had enough and if it was the represented person's wish then PL could look after him. RL is alleged to have said that a new will should be made by the represented person; that the Tribunal proceedings were not needed and that the represented person was entitled to do with his money what he wanted.
RL is alleged to have made further contact with PL that day, stating that he had spoken with the represented person who wished to give RL and PL $50,000 each, because he could live 'freely' on the balance of his funds of $85,000. PL says he did not agree to this arrangement because, in his view, the represented person might require all of his funds for his future needs. The conversation is said to have ended on that point.
PL refers to a conversation he had with RL on 5 June 2012, when he (PL) was with the represented person. RL is alleged to have said that the represented person had 'lost the plot', and he wanted reassurance that he would be entitled to 50% of the represented person's estate in any will.
PL states that when he made contact with the represented person later in the month (26 June 2012) after returning from an overseas holiday, the represented person was 'ranting and yelling at me and said I have not been around since mum died' (submission dated 28 June 2012). The represented person terminated the call.
PL submits that the represented person's recent negative reaction to him is totally out of character.
PL states that during a visit to the represented person on 28 June 2012, the represented person is alleged to have accused PL of reporting RL to the police, and that he had given RL $2,000 to assist him in that matter.
PL's final submission is that a limited administrator should be appointed for the represented person to protect and manage the deposits of $185,000 and $4,500. He submits that the represented person is able to manage his pension income and pay his regular bills.
PL disagrees with the capacity assessments, including that of Dr RC, the specialist medical practitioner (see below).
The evidence and submissions of RL
RL states that for five years prior to the 2009 EPA, PL never visited the represented person. He says that PL had his son check on the represented person after his mother died. RL states that he had been visiting his parents for the last 15 years, something of which PL was not aware because he and PL do not communicate.
RL states that, in respect of the telephone contact he had with PL, his aim was to facilitate discussions between them both and the represented person, but PL did not want to come to any understandings. He does not deny he made the telephone contact, nor does he dispute the contents of his communications as described by PL. RL submits, however, that PL lies about him and that PL has no documentary proof of the allegations he has made.
RL states that the represented person asked for help in the Tribunal proceedings, and his advice to the represented person was that he obtain legal advice.
RL has a different perspective on how the 2011 will came about. He says that PL demanded the 60/40 split and said that, if it did not happen, he would not see the represented person again. RL submits that the represented person wanted the estate to be divided equally between his sons.
RL submits that the represented person is capable, knows what he is doing and that he should be permitted to manage his own life without being controlled by PL whom he describes as the 'big man' who wants to control everything. He accepts that the represented person has some age related shortterm memory problems ('a little bit') (T:37, 28.02.12). He questions why the proceedings in the Tribunal have continued, given that all of the medical practitioners have assessed the represented person as capable.
RL states that he has never assisted the represented person with his financial affairs, because he believes that the represented person can do that on his own. When he is in Perth, RL says that he acts as the represented person's taxi. He acknowledges that he took the represented person to the bank on most, if not all, of the occasions that the represented person made the cash withdrawals, the transactions, PL has stated, are out of character for the represented person. RL states, however, that he did not assist the represented person in the bank, but was aware that he had money when he left the bank. He says (at the first hearing) that he has no idea what the represented person did with the money, but assumed he placed it in his safe at home, but at the second hearing, RL states that the money was used for electrical and plumbing work on the represented person's house and for the purchase of two sets of spectacles. RL states that he was not aware his father had safes in his home until after his mother's death, and has never accessed them.
RL states that the represented person gifted him $10,000 (one of the cash withdrawals) because the represented person wanted to assist him to purchase a car. He states that the represented person had assisted PL in the past to purchase blocks of land. RL says it was also the case that buying the car would make it easier for him to assist the represented person with transport.
RL says that the only other gift he has received is the $1,000 given by the represented person on the day of the first hearing for his birthday.
As regards the gifting of $50,000 for each of RL and PL and raised by PL in his evidence, RL states that the represented person wanted to assist him and, in response, RL said he told the represented person that any gifting had to be shared equally between his sons.
RL states that he downloaded the forms for the represented person to make the 2012 EPA in favour of him. He says that the represented person arranged for his general practitioner to provide an assessment of his capacity to execute the instrument.
RL states that he has had a good relationship with the represented person for a long time. He says he lives away from Perth because he does not get on with PL. He says that it is his wish that he never see PL again.
The evidence and submissions of the represented person
The represented person was assisted by counsel in the first hearing, but not in the second hearing because he had terminated his counsel's retainer. As already mentioned, the represented person was assisted by an interpreter in the second hearing.
There are two main aspects to what the represented person tells the Tribunal. They are that he is capable of managing his financial affairs and that he has no trust in PL who, he maintains, has not contacted or assisted him since the death of his wife in October 2011.
Throughout his evidence, the represented person strongly maintains this view of PL. For example, in the hearing on 28 February 2012, he states:
Well last 12 months never saw him [PL]. Some time in the night time come with [indistinct] parked in the front of my driveway to see if just to stickybeak, but that way I don't see after my wife dead, he never ring me up to see how I feel. Nothing. Like I was dead. (T:47, 28.02.12)
The represented person says, further, that he did not see PL before his wife died, 'I didn't see him never. Never one phone call' (T:47, 28.02.12)
After prompting under crossexamination, the represented person seemed to remember the holiday with PL in the southwest of the State and says that he was taken there to have a break after the death of his wife. He acknowledged that PL was at his wife's funeral because 'everyone went' (T:65, 28.02.12). He seemed to accept that, at the end of 2011, PL was seeing him ('Well[,] very often if he wasn't far away' (T:66, 28.02.12)) to assist in bill payment. He then, however, restated that PL never rang him after his wife's death.
Under crossexamination in the first hearing, the represented person was taken to the cash withdrawals he made in December 2011 to February 2012. He states that the first withdrawal, for $10,000 on 29 December 2011, was given to RL to help him buy a car. The $10,000 withdrawn on 30 January 2012, he says he took home because it is safe there and when he needed cash it would be easily available. The next withdrawal, on 2 February 2012 for $3,000, the represented person first said he spent on the races. He then retracted that statement and said he spent the money on 'what I like' (T:61, 28.02.12), and responded further by saying he did not have to say how much he spent because it is his money. The next withdrawal, on 6 February 2012 for $4,000, the represented person said he took home and kept in his safe. He then said he did not remember withdrawing $2,000 two days later on 8 February 2012.
When asked at the second hearing what were the origins of the credit of $33,800 made to his bank account on 28 December 2011 (just before the first of the cash withdrawals), the represented person stated that it was cash he had kept in his safe that he banked. He was then unable to further account for the cash withdrawals made from December 2011 to February 2012.
The represented person states that he intended his 2011 will to distribute his estate equally between his sons, but that PL had already prepared the will with the unequal distribution (60/40) when it was presented to him. He accepts that he signed that will. Under crossexamination, the represented person could not remember when he made his most recent will. At the second hearing, the represented person acknowledged that he had torn up the latest will because he was angry at a lot of things.
In respect to the gift made recently to RL for his birthday, the represented person, at first, stated it was $1,000 then, under crossexamination, stated it as being $2,000. At that point in the hearing, RL said that the gift was in an unopened envelope and he assumed it contained $1,000.
The represented person states that RL travels a long way to help him and that he initiated the gift of $10,000 to RL. When asked how much in gifts he has given RL in 2012, the represented person says 'probably $15,000' (T:68, 28.02.12).
The represented person states that he has, in the past, given money to PL; $10,000 to buy a block of land and $10,000 to help him build a house.
In respect to the concerns raised by PL about the Italian pension and the driver's license, counsel for the represented person submits that any person would have difficulties traversing the Italian bureaucracy, and a possible explanation for not having a driver's license is that the represented person chose to drive without one.
The represented person says that he manages his own finances without any problems. He says he knows what money he needs. He has money in the bank and he keeps some at home in a safe (he mentions only small amounts, $50 or $100). The represented person says that if he needed help he would call upon RL, but that is not currently necessary. Under crossexamination, the represented person denies that he has any problems with his memory.
When asked if he understands what an enduring power of attorney is, he states, 'you want to look at my business, protect my interests' (T:7, 28.02.12).
The represented person states that he cancelled the 2009 EPA after he found out PL 'tried to take my money out' (T:72, 28.02.12).
When asked whether he has a current enduring power of attorney, the represented person states he has made one in favour of RL and that it can be used anytime RL wants (which is not correct).
The represented person states that some of his expenses are paid directly from the bank (direct debit), and others he pays at the local Post Office which is near to his home. He says he pays his bills in cash.
As regards his home, the represented person says that he intends to remain living there and when he dies he expects his sons will have it sold. He says he has divided his estate equally between the two (although he questions whether PL should be entitled to anything).
The represented person voices his disapproval at PL arranging for the deposit funds of $185,000 to be removed from his control. He states that PL did this 'behind my back' (T:55, 28.02.12).
During crossexamination, the represented person states that he has two bank accounts, one into which his pension is credited and the other an investment containing the $185,000.
The evidence and submissions of the Public Advocate
The Public Advocate's representative (Public Advocate) attended the first hearing, provided a written report and gave oral evidence.
The Public Advocate interviewed the represented person on his own at his home on 20 February 2012.
According to the Public Advocate, the represented person demonstrated sound longterm memory, but appeared to have shortterm memory problems such that he did not appear to the Public Advocate to be fully aware of his financial affairs. This was demonstrated in two ways; by the represented person stating that he no longer wanted PL as attorney, but apparently not being able to explain or show whether he had made a new enduring power of attorney (which he had on 15 February 2012), and when asked about the cash withdrawals totalling $36,000, he responded that there was no money missing and PL was trying to implicate RL.
The Public Advocate could not conclude whether the represented person did not remember the cash withdrawals or rather did not want to talk about the matter.
The represented person told the Public Advocate that PL was trying to destroy him and no longer visited him.
The Public Advocate states that the represented person seems to be able to manage his daily activities 'fairly well' (written report dated 22 February 2012, page 3).
The question of the represented person’s capacity
This question is governed by s 3, s 4 and s 64 of the GA Act.
Section 64 relevantly states:
(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; and
(b)is in need of an administrator of his estate;
the Tribunal may by order declare the person to be in need of an administrator of his estate …
Section 3 defines mental disability as including an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
Section 4(2)(b) enshrines the presumption of capacity.
There are a number of medical and allied heath assessments that are before the Tribunal. They are as follows.
11 November 2011 ACAT assessment
Relevantly, this report states that the represented person had noticed increasing episodes of shortterm memory loss, and that he was dealing with this concern by using a diary and allowing supervision of his financial affairs. The report states that the represented person had agreed to allow PL to manage his daily budgeting and financial matters. The report noted the represented person's grief reaction on the recent death of his wife, and expressed concern that the bereavement and loneliness might trigger a depressive episode. Social supports were recommended.
24 January 2012 and 8 February 2012 Dr SM, general practitioner
In the first of the reports addressed to the represented person's solicitor, Dr SM states that, although at 86 years of age the represented person did not have 'perfect cognitive function', he was not demented and he retained sufficient mental capacity to make appropriate choices for his will (the 2012 will).
In his second report, Dr SM states that he had only attended to the represented person for the past two months. He assessed the represented person as having 'mild age related cognitive decline' although no 'actual' diagnosis had been made. He opined that the decline would likely get slowly worse over time, but otherwise assessed the represented person as capable of making reasonable decisions about his financial affairs.
13 February 2012 Dr TM, general practitioner
In his report, Dr TM states that he has been the represented person's general practitioner for in excess of 18 years. He assessed the represented person as having 'age related cognitive decline only'. He conducted a Mini Mental State Examination (MMSE) in which the represented person scored 21 out of 30, but he opined that the score would probably have been higher but for language difficulties. Dr SM stated that he had not recognised any cognitive impairment in the past and, after making specific enquiries about the represented person's ability to manage his own financial affairs, he concluded that the only problem was the provision of transport.
23 June 2012 Dr RC, consultant geriatrician
Dr RC saw the represented person on 31 May 2012 (first interview) and 21 June 2012 (second interview). He had the benefit of the ACAT assessment and the reports of Dr SM and Dr TM. He was also given copies of the 2009 and the 2012 EPAs and the 2009, 2011 and 2012 wills.
Under the heading 'Medical Problems', Dr RC states that the represented person has 'altered mental state dysmnesia'.
Dr RC's assessment is that the represented person does have a memory deficit which he assumes has occurred in recent years, but it is possible that the represented person's memory has never been good.
Dr RC states that in the first interview he found it very difficult to communicate with the represented person. In the second interview, with the assistance of an interpreter, the communication was much easier.
At the first interview, Dr RC conducted an MMSE in which the represented person scored 18 out of 30, but he opines that the score is very hard to interpret given the represented person's lack of a formal education, poor use of English and his background as a blue collar worker.
Dr RC states that the represented person had no recollection of the first hearing, although at the second interview he knew that the second hearing was scheduled in about two weeks.
The represented person could not explain the sequence of events that lead him to an appointment with Dr RC (first interview), and had little knowledge of the sequence of events since the death of his wife (second interview). He could not recall the 2012 EPA (second interview).
The represented person stated that RL cared for him. He said he had reestablished contact with PL and, at the second interview, was less angry with him, although he expressed concern that PL had not made contact for a period of time early in 2012. He wished for both his sons to work together to assist him but acknowledged that they do not get on.
Dr RC states that the represented person was consistent in his understanding of his estate. He described his estate as comprising his property, valued at approximately $1,000,000, and $185,000 in the bank. He said he received the age pension and Italian pension. He said he pays his bills at the post office by cash or money order.
In respect to the cash withdrawals, Dr RC states:
[The represented person] and his son [RL], told me that these withdrawals were for home maintenance costs and gifts to [RL]. [RL] told me that previously his father had given similar gifts to his brother, [PL].
And in the second interview:
… [H]e [the represented person] repeated his previous statement that he had helped [RL] buy a car. There was also expenditure on house maintenance but he could not detail this apart from mentioning that he had bought a new stove.
And in his further statement:
I have not been presented with any evidence that compels me to consider that this expenditure was inappropriate.
The represented person was consistent in his wish to have his sons benefit equally in his will, but was not aware that he had signed the 2012 will. He said that PL wants the estate split 60/40 in his favour.
Dr RC opines that the represented person has demonstrated a capacity to manage his finances and that, in his view, the presumption of capacity has not been rebutted. The represented person knows his assets, manages his daily finances, knows broadly what an enduring power of attorney is, was consistent in his responses and is aware of the family circumstances. Dr RC finishes his assessment by stating:
Obviously, the [State Administrative Tribunal] may hold a different view given the evidence it has available will be more complete than that available to me.
The parties’ response to the medical evidence
Both the represented person and RL submit that the medical evidence strongly supports the finding that the presumption of capacity has not been displaced.
They support the assessments of the medical practitioners.
PL holds a different view. Through his counsel, PL submits the following as demonstrating why it is that the Tribunal should use the report of the specialist, Dr RC with caution:
•It is PL's understanding that neither of the represented person's sons would be part of the interview with Dr RC. From Dr RC's report, it appears that RL answered questions on behalf of the represented person, particularly about the cash withdrawals (in response, RL states that Dr RC asked him what prompted the application for an administration order and he said the cash withdrawals. He says he then left the first interview and did not participate at all in the second interview).
•The MMSE score of 18 out of 30 should be assessed as showing the represented person has a moderate cognitive impairment.
•The represented person has no recollection of the first hearing, which is of concern given its importance. He also could not explain why he was attending Dr RC.
•The represented person says that he does not want PL in his life, and yet told Dr RC that his wish is that both his sons are involved in his care. The represented person also told Dr RC that RL cares for him, but in his evidence stated that he can care for himself.
•Dr RC qualified his assessment of the meaning behind the cash withdrawals when he said that he had not been presented with any compelling evidence that the expenditure was inappropriate. However, there are significant discrepancies between what Dr RC was told about the cash withdrawals and the evidence before the Tribunal. For example, the represented person told the Tribunal that one of the cash withdrawals was used at the races and not for home maintenance as is it now alleged. In fact, in the evidence of the represented person and RL in the first hearing, nothing was mentioned about expenditure for home maintenance.
The decision of the Tribunal
The application of s 64(1)(a) of the GA Act involves two questions. The first of these is whether the represented person has a mental disability as defined in the GA Act (the objective test). If a mental disability exists, then the second question is whether, by reason of that mental disability, the represented person is unable to make reasonable judgments about all or any part of his estate (the subjective test) (The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 (Brumar) at [45] citing FS [2007] WASAT 202 (FS) at [106]).
The definition of mental disability in s 3 of the GA Act is not exhaustive, however, it clearly anticipates an impairment in brain functioning that impacts on a person's ability to engage in a cognitive process that would enable the person to make a reasonable judgment (Brumar at [45] citing FS at [110]).
The represented person has been stated to have an age related cognitive decline (Dr SM and Dr TM), or an 'altered mental state dysmnesia' (Dr RC). However it is put, the manifestation or consequence of the represented person's current mental state is an impairment or deficit in the represented person's memory, and, particularly, it would appear, his shortterm memory.
I accept the diagnosis of Dr RC in this regard.
I am satisfied on the evidence that the represented person has a memory deficit, although its causation is not yet known. It is only the represented person who denies that such impairment exists. Even RL, who otherwise submits that the represented person can manage his own financial affairs, accepts that there is some shortterm memory problems (he describes it as a 'little bit').
I find that the existence of the memory impairment constitutes a mental disability for the purposes of the GA Act because it impacts on the represented person's cognitive processes. It does not matter that the origin of the impairment has not been formally diagnosed.
It is sufficient, in my view, to find that memory plays an important part in any judgment about whether to proceed on a particular course of action (decision) because it is vital to know if any actions (decisions) previously undertaken will influence the current judgment to be made.
The critical question is whether the represented person's impairment (the shortterm memory problem) and the extent of that impairment renders him unable to make reasonable judgments about all or any part of his estate. The answer to that question cannot be divorced, in my view, from the environment or circumstances in which those judgments are made.
In the case of the represented person, the environment is a particularly difficult one. He has two sons who are at war with each other and whose actions are filtered through that conflict. This places an enormous stress on the represented person as he navigates his way through the relationships he has with his sons, more so now that he no longer has the assistance of his wife. Such stress, in my view, compounds the effects of his memory problems. It can be observed, for example, in the making of the 2011 and 2012 wills, the latter which, although it is supposed to represent how he currently wants his estate divided on his death (equally between his sons), he admits he recently destroyed because he was angry about something which he did not reveal to the Tribunal.
I am satisfied on the evidence that the represented person's memory problems impact on his ability to make reasonable judgments about his estate in the particular environment in which he finds himself.
In that regard, I accept the evidence of PL when he describes the memory problems and the confusion of the represented person that were present even prior to the death of his wife. I have given significant weight to this aspect of PL's evidence because he has kept contemporaneous notes of his interaction with the represented person.
The only doubt that I might have had stems from a concern that was present throughout the hearing, namely that the represented person gave the appearance of not being entirely forthright with his evidence. To put that concern in its best light is to consider the possibility that the represented person felt affronted by the proceedings and was reluctant to disclose personal matters to the Tribunal. The represented person and his counsel were made aware of this concern at the first hearing when he gave his initial response to the destination of the cash withdrawals, however, it was only in the interview with Dr RC and at the second hearing that the rather vague description of 'home maintenance' was mentioned, in my view, at the initiation of RL rather than the represented person.
On balance, I am satisfied that when the represented person's evidence elicits a doubt as to whether he is telling all that he knows or whether he has forgotten what has happened, it is more likely than not that he has forgotten and his memory has failed him.
I am satisfied that the represented person does not remember what the cash withdrawals were used for, except the gift of $10,000 to RL and only then because it has been an ongoing topic of discussion. The represented person's explanation for the deposit of $33,800 on 28 December 2011 and the subsequent cash withdrawals is not coherent or consistent. He says he banked the cash on 28 December 2012 because it would be safer in the bank, and then states that the $10,000 was withdrawn on 30 January 2012 because the money was safer at home (and it would be readily available).
The undisputed evidence is that these large withdrawals over a relatively short period were unique. It can reasonably be inferred that they would, for that reason, be remembered.
I am also satisfied that the represented person's extreme reaction to PL is filtered through an impaired memory of his relationship with his son, both prior to and after the death of his wife. It may be understandable that the represented person is angry that PL has arranged for his deposit funds to be quarantined, but his current reaction towards PL is only explicable if, at least in part, the represented person has a patchy memory of what has happened over the last 12 months or so. He also demonstrates inconsistency in the views he has of his sons; for example, in late December 2011, he told PL that he wanted RL removed from his will and a restraining order taken out against him; later telling Dr RC that he was less angry at PL and wanting both of his sons involved in assisting him, but then, in both the first and second hearings, expressing great anger at PL.
All of this is consistent with Dr RC's finding, which I accept, that the represented person has little knowledge of the sequence of events since the death of his wife and which, in my view, means that he is vulnerable to the memories and interpretations of those events by his sons.
I also find that the represented person's communication with his sons is affected by the strong negative views the sons have of each other.
This is the environment or context of the represented person's decisionmaking, the evidence of which is clearly before the Tribunal but about which, it appears, the medical practitioners who assessed the represented person's capacity were not aware. This possibility is acknowledged by Dr RC in his report.
I have therefore considered the assessments of the medical practitioners in light of my finding concerning the environment in which the represented person must make his judgements about his financial affairs, and find that the evidence does not support their conclusions.
I am satisfied on all the evidence (echoing the words of Heenan J in Re The Full Board) that the represented person, because of his impaired faculties, is in need of the protection of an administration order to ensure that his financial affairs are not put at risk by incautious or illconsidered decisionmaking on his part, or by the possible illadvised influence of his sons (given their extreme dislike of each other) even if that advice only inadvertently increases his vulnerability.
I refer to a final example that, in my view, demonstrates the represented person's vulnerability; that of RL's contact with PL on 2 June 2012, in which it is not disputed that RL put to PL that the represented person allegedly wanted to gift $100,000 ($50,000 each) from his estate to them. This proposal was put at a time when the represented person was already under pressure from his sons about how his estate should be distributed upon his death, as evidenced by the 2011 and 2012 wills (the latter subsequently destroyed by the represented person), and the deviation of those wills from the one made in 2009 when the represented person's wife was still alive. It is, at least, to PL's credit that he did not accept the proposal.
The represented person understandably values his independence and it is his wish that an order not be made. I must, however, make my decision in what I consider to be his best interests (s 4(2)(a) of the GA Act).
The expression 'best interests', in the context of a protective jurisdiction, reinforces the idea that the paramount concern is the overall interest of the person to whom the protection is directed (Public Trustee v Blackwood [1998] 8 TasR 256). Put another way, the expression is concerned with the person's 'separate and independent welfare' (Charlton v Baber [2003] NSWSC 745 at [52]).
The interests of PL and RL in the distribution of the represented person's estate upon his death (or a distribution prior to his death), are not of concern to me. The protection of the represented person's estate and its management whilst he is alive is my sole concern.
I am satisfied that the represented person's estate is in need of protection, but that the protection can be limited to the deposit funds of $185,000 and his real property (s 4(2)(e), s 69 and s 71(3) of the GA Act). The magnitude of the conflict between PL and RL and the reliance the represented person places on his sons precludes, in my view, the possibility of a less restrictive alternative to the making of an order.
I accept what appears to be common ground, that the represented person can, at the moment, manage his pension income and his bill paying. I am also satisfied that he can manage the smaller deposit funds of $4,500 which is held in a separate bank account.
The administration order will give the administrator the authority and responsibility to secure and manage the deposit of $185,000, and be directed to lodge a caveat over the represented person's property. The represented person will continue to manage his pensions and have access to the $4,500 deposit. The caveat lodged by PL under the 2009 EPA should be removed.
To ensure certainty in the decisionmaking, I will order revocation of the 2009 and 2012 EPAs, notwithstanding that the 2009 EPA has been purportedly revoked by the represented person (s 108(1)(a) and s 108(1a)(a) of the GA Act).
I will make the order reviewable in five years (s 84 of the GA Act).
I will appoint the Public Trustee in the limited administration role (s 68 of the GA Act). PL supports the appointment of the Public Trustee. RL has not proposed himself. I accept that the appointment of the Public Trustee is contrary to the represented person's wishes (s 4(2)(f) of the GA Act), but it is my view that the appointment is in his best interests given the findings I have made.
Orders
1.The Public Trustee is appointed the limited administrator of the estate of the represented person with the following functions:
(a)to demand, receive and recover the bank deposit of $185,000, including any accrued interest standing to the credit of the represented person with Bankwest; and
(b)to invest those funds for the benefit of the represented person and to expend the funds:
(i)to pay any debts of and settle or compromise any demand made by or against the represented person or against the estate; and
(ii)for the maintenance, necessaries, comforts and benefits of the represented person, in such manner and to such extent as the administrator, having regard to the circumstances and value of the estate of the represented person, considers proper and reasonable.
2.The administrator is to lodge with the Registrar of Titles a caveat over the represented person's property situated at [address deleted].
3.The enduring power of attorney dated 5 December 2009, by which the represented person appointed [ML] as his attorney and [PL] as his substitute attorney, be revoked.
4.The enduring power of attorney dated 15 February 2012, by which the represented person appointed [RL] as his attorney, be revoked.
5.The order is to be reviewed by 10 August 2017.
I certify that this and the preceding [149] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
0