PP - [2016] WASAT 133

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PP [2016] WASAT 133

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 28 OCTOBER 2016

DELIVERED : 4 NOVEMBER 2016

PUBLISHED : 8 NOVEMBER 2016

FILE NO/S: GAA 3048 of 2016

MATTER: PP
Proposed Represented Person

Catchwords:

Guardianship and administration Enduring power of attorney Enduring power of guardianship Joint and several appointments Joint and several appointment not permitted in the making of an enduring power of guardianship Intense conflict between the proposed represented person's children Capacity of the proposed represented person Proposed represented person diagnosed with a mild cognitive decline but not diagnosed with dementia Proposed represented person has history of delegating his decisionmaking to others and not concerning himself with the detail of things Proposed represented person wishes to remain living in his home Presumption of capacity not displaced Applications for guardianship and administration orders dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1), s 44, s 45, s 64(1), s 65, s 68, s 69, s 84, s 97(1)(b)(iii), s 108(1), s 108(1a), s 110B

Result:

Applications for guardianship and administration orders dismissed

Summary of Tribunal's decision:

PP, an 83yearold man, was diagnosed with a mild cognitive decline.
PP lived in his property with his son, KH. He had recently separated from his spouse.
PP had three other children: two daughters, MH and GP, and another son, G.
There was intense conflict between KH and his siblings. The siblings had expressed a concern as to the vulnerability of PP's estate to exploitation by KH because of KH's alleged history of financial and employment misadventures, past homelessness, alcohol abuse and financial crises. KH was also alleged to be abusive, violent and intimidatory.
PP had made an enduring power of attorney and an enduring power of guardianship appointing MH and KH jointly and severally. The enduring power of guardianship was not a valid document, given that a joint and several appointment was not permitted under the Guardianship and Administration Act 1990 (WA).
Applications for guardianship and administration orders in respect to PP were made by MH and GP. Subsequent to the applications, MH had come to the view that orders were no longer needed because she had entered into an arrangement with KH under the enduring power of attorney that she believed protected PP's estate.
The other children of PP, and the Public Advocate, wanted the applications to proceed.
There was no dispute that KH was providing appropriate care to PP in PP's home. The main concern related to the management of PP's estate and a subsidiary concern related to contact GP said she could no longer have with PP because of KH's behaviour.
The Tribunal found that PP had a history of delegating his decisionmaking to others; initially his exspouse, and more latterly, KH and MH. The Tribunal further found that PP had a 'big picture' view of the world and appeared not to be bound by the details of things. He simply wanted to remain in his home.
The Tribunal found that PP's wish to remain living in his home and how that could best be achieved was the prism through which he decided who should be given the most authority in his life.
The Tribunal accepted evidence of a medical practitioner that currently there were no clear functional implications resulting from PP's mild cognitive decline and there was insufficient evidence to sustain a diagnosis of dementia.
On the evidence before it the Tribunal decided that the presumption of capacity had not been displaced and the applications were therefore dismissed.

Category: B

Representation:

Counsel:

Proposed Represented Person : N/A

Solicitors:

Proposed Represented Person : N/A

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

Briginshaw v Briginshaw (1938) 60 CLR 336
GC and PC [2014] WASAT 10
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The proposed represented person (PP) is an 83yearold man. He has four children: two daughters and two sons.
The daughters are GP and MH, and the sons are G and KH.
PP has recently separated from his spouse. He is living in a property owned by him (property) and is being cared for by his son, KH.
In August 2016, the daughters, GP and MH, made applications (applications) for the making of guardianship and administration orders for PP pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act).
The applications were referred to the Public Advocate pursuant to s 97(1)(b)(iii) of the GA Act.
A directions hearing was held on 25 August 2016 and an order made under s 65 of the GA Act giving the Public Trustee the specific authority to secure PP's property by lodging a caveat on the property and to hold in abeyance any property settlement proposed between PP and his exspouse.
The final hearing of the applications was held on 28 October 2016. In attendance were PP, GP, MH, G, KH, a representative of the Public Advocate (Public Advocate), Dr BM (Advanced Trainee Registrar at a public hospital) and EH, a carer.
The decision was reserved.

Relevant legislation

The primary concern of the Tribunal is the best interests of PP: s 4(2) of the GA Act.
In considering the applications, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of PP as expressed, in whatever manner, at the time, or as gathered from PP's previous actions: s 4(7) of the GA Act.
PP is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
Under s 43(1)(b) of the GA Act, the Tribunal cannot consider appointing a guardian for PP unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments about matters relating to his person; or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
Under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of PP unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
'Mental disability' is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to PP, the Tribunal must further determine whether he is in need of guardianship and administration orders. If the needs of PP can be met in a manner less restrictive of his freedom of decision and action, then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
If the Tribunal decides that PP is in need of guardianship and administration orders, it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be, and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of PP, then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on PP: s 4(5) and s 4(6) of the GA Act.
If an administration order is made the Tribunal can revoke or vary an enduring power of attorney: s 108(1) of the GA Act. If an administration order is made and the continued operation of an enduring power of attorney would be inconsistent with the functions of the administrator, the Tribunal must revoke the power or vary the enduring power of attorney to remove the inconsistency: s 108(1a) of the GA Act.

Enduring power of attorney

On 5 July 2016, PP executed an enduring power of attorney (EPA) appointing KH and MH as joint and several attorneys. The copy of the EPA before the Tribunal includes the acceptance by KH, but in the acceptance he is described as a joint attorney. The acceptance of MH is not before the Tribunal although, at the directions hearing, MH said she accepted the EPA on 8 July 2016 and that it has been lodged with the Registrar of Titles.
The EPA was prepared by a solicitor.

Enduring power of guardianship

On 5 July 2016, PP executed an enduring power of guardianship (EPG) appointing KH as MH as his joint and several guardians. Such an appointment is not permitted by s 110B of the GA Act, which only allows for the appointment of a sole guardian or two or more persons as joint guardians.
The EPG was prepared by a solicitor.

PP's estate

The applications describe PP's estate as consisting of the property in which he and KH live which is unencumbered, and bank funds of approximately $55,000 which is said to be held in the names of MH, GP and KH and require all their signatures for a withdrawal of funds.
PP also has an interest in the marital assets upon the separation from his exspouse.

The question of PP's capacity

The relevant medical reports before the Tribunal are as follows:
•Report of Dr ND, a Geriatric Medicine Consultant, and Dr FC, an Aged Care Registrar, from April 2016;
•Report of Dr TY, a Geriatric Medicine Consultant, and Dr JB, an Aged Care Registrar, from June 2016;
•Report of a general practitioner from August 2016;
•Report of the Dr TY, Geriatric Medicine Consultant and Dr BM an Aged Care Registrar, from October 2016.
Dr BM also gave oral evidence at the hearing and the Tribunal was provided with a submission of a support worker for PP from October 2016.
In April 2016, PP attended Dr ND and Dr FC with his spouse. Dr ND stated in his report that there had been concerns with PP's shortterm memory for the last six to 12 months. At the time of the appointment PP was still living with his exspouse and it was reported that the exspouse appeared to run most of the household activities including managing daytoday finances. PP scored 20/30 in a Mini Mental State Examination (MMSE) and was noticeably disoriented to time and place. The score of 20/30 was the same as a previous test undertaken in December 2015. PP's exspouse was reported to have expressed a concern that PP was giving money to some of his children, and the exspouse believed that he did not have the capacity to do so and that their finances did not support such gifting. Dr ND made a diagnosis of progressive dementia.
In June 2016, PP attended Dr TY and Dr JB with a daughter who was not otherwise identified in the report. The daughter reported that PP had separated from his exspouse about six weeks previously and he was living with KH in the property. The daughter reported that there had been great marital stress and unhappiness within the family. She reported that since moving to the property, PP's memory had improved but that he continued to have some problems with repetition and recall. PP was said to have no particular interest in the days of the week, nor months nor years, as his family helped him attend all necessary appointments. PP was assessed as still disoriented to time but was quite oriented to place. Dr TY diagnosed PP as having a progressive neurocognitive decline (dementia) and that the most likely cause was Alzheimer's disease.
The general practitioner in the report from August 2016 formed the view that the diagnosis for PP was unclear and that his mental state fluctuates. The general practitioner was unsure as to PP's capacity.
Dr BM gave oral evidence and spoke to the written report of October 2016.
Dr BM states that PP was seen with his daughter, MH, and son, KH, on 19 October 2016. MH and KH reported that no safety issues had occurred since the last review in June 2016. PP was said not to repeat himself and had not misplaced any objects. They reported that PP had been deteriorating for about six months prior to separating from his exspouse because of his low mood and constant arguing with his exspouse. This had placed him under a significant amount of stress and anxiety. KH and MH had noticed that PP's memory seemed to have improved.
Dr BM states in the written report that PP scored 23/30 on the MMSE, which was an improvement from 20/30 from the review in June 2016. He scored 2/3 on recall, and points were lost in orientation and repetition although Dr BM notes that PP's hearing problems might have played a part in those deficits.
In her oral evidence, Dr BM notes that the early assessments of PP's capacity were made in circumstances where he was under significant stress because of the breakdown of his marriage and the separation from his exspouse. She notes that depression can affect a person's cognition. Dr BM says that recent testing has shown an improvement in PP's mental state and that the score of 2/3 for recall was very good. She says that there is currently no clear functional decline sustained by PP as a consequence of memory issues.
Dr BM states that on the basis of the information provided by MH and KH, and a clinical assessment, it could not be said that PP is currently suffering with Alzheimer's disease. She says that the best label that can be given to reflect PP's mental state is a mild cognitive decline, which is probably progressive but the cause of which is as yet unknown but would become clearer over the next six months or more. PP's main deficits are in orientation and some recall as the score of 2/3 suggests.
Dr BM states that it appears that PP requires more prompting in his activities of daily living but that was as much to do with his physical limitations resulting from any cognitive deficits. Dr BM states that PP is resigned to others making decisions for him and in particular relies on KH. PP is strong in his view that KH and MH should make decisions for him and that he trusts that they will make decisions in his best interests.
In the written report, and confirmed in her oral evidence, Dr BM states that PP was unable to repeat back in his own words or explain what he understood about an enduring power of attorney and an enduring power of guardianship, even after she had explained in different ways what these documents mean. However PP was very clear that he wants KH and MH to have full decisionmaking capacity. He was able to also explain that they will be able to make decisions regarding personal and financial matters and will be able to go against his wishes, although he is confident that they will not do so.
Dr BM says that in her view PP has insight into his medical conditions but because he relies so much on KH and is closely observed, it is difficult to assess his decisionmaking capacity in this area of his life.
The support worker, who did not attend the hearing, says in her submission that she has assisted PP for approximately the past eight months. She says that she has dealt with clients with dementia and Alzheimer's disease over the previous four years and she does not believe that PP has either of these conditions and is of sound mind to make his own decisions. The support worker states that PP is capable of dressing, showering, feeding, toileting, and providing his own entertainment, but that he may need assistance with attending outings and appointments, and this is done by KH.
The support worker states that PP has told her that he is happy with his current living arrangements and that if he is healthy enough next year, he wishes to go to Italy for a holiday to show his family his place of birth. The support worker says that she believes PP has made these decisions by himself without any coercion.
Another carer, EH, attended the hearing and says that she believes PP can make his everyday decisions and wants the freedom to continue to do so. EH says that PP does not want to be bothered with his finances and is happy for his children to do this for him. She states that PP is aware of the conflict between his children and that it is distressing for him because the conflict is very public.
GP states that PP has memory problems and that he has had these problems for many years. She says that he finds it difficult to form new memories and bases his decisions on his emotions. GP believes PP is vulnerable to influence, but that PP accepts that he needs a decisionmaker. He trusts his family.
G agrees with the position put by GP.
MH agrees that PP has memory impairment and can be swayed in his views. She says that he can generally understand questions put to him and he knows what he wants.
KH states that PP cannot live alone and does need help. KH believes that PP does understand many things but does have difficulty in learning new things and does forget.
The Public Advocate provided the Tribunal with a written report and gave oral evidence at the hearing.
The Public Advocate states that he interviewed PP on 21 September 2016 and had a conversation with him.
The Public Advocate states that PP acknowledges he has some memory problems and says that that has always been with him, referring to problems at school when he found it difficult to remember things.
The Public Advocate states in his written report that:
The investigator would agree that [PP] has a fair degree of memory impairment, but whether this is so severe to render him vulnerable to harm, or illconsidered decisionmaking, is arguable.
Further in the written report the Public Advocate states:
If he was cognitively impaired, it was only mildly (memory aside).
In his oral evidence, the Public Advocate states that in his view PP's memory is not as bad as his daughters say it is. He believes that PP understands the EPA and EPG in broad terms as someone looking after his personal and financial affairs. PP told the Public Advocate that he supports KH and MH making his decisions. PP was said to be able to converse adequately despite a hearing problem. He is aware of the family dispute. The Public Advocate takes a view that the details of matters escape the attention of PP.
The Public Advocate states that he made contact with the solicitor who arranged the revocation of the enduring power of attorney and the enduring power of guardianship formerly held by MH and GP, and states he was advised that the lawyer believed he could take instructions from PP at the time. The Public Advocate submits that PP is vulnerable due to his age and circumstances; however, that is not an uncommon situation in the community.
The Public Advocate submits that on the available evidence, the presumption of capacity has not been displaced.

The applications

The initial position of GP and MH as applicants was that guardianship and administration orders were needed for PP because of the actions of KH.
GP and MH state that they had initially been appointed PP's enduring guardians and power of attorney but that recently KH had taken PP to a solicitor and arranged for the EPA and the EPG to be made and the previous instruments revoked.
In the applications, GP and MH state that KH has a mental health disability, is in debt and is being pursued by his creditors. They say that family meetings had not resolved their concerns because of KH's aggressive behaviour and threats of violence.
GP and MH state that KH has changed his religion and had become radicalised.
It is alleged KH had recently obtained a passport for PP and was planning to take him to Italy.

GP and MH express a concern that KH has access to PP's funds.
In the hearing, the position of MH changed. She says that she has now come to the view that PP wants her and KH to make the decisions for him and therefore the EPA should be allowed to operate. She is not concerned about the joint and several authorities of the EPA and states that this enables KH to deal with daytoday financial matters.
MH says that PP wants to stay in the property and be cared for by KH. There is no intention to sell the property and, depending on the outcome of the hearing, it is the intention of her and KH to place a caveat on the property as attorneys and to have PP make a new enduring power of guardianship.
MH submits that this provides security for PP's estate and is consistent with his wishes.
MH states that the question of whether PP is able to travel overseas will need further discussion by the family and will require PP to be given a medical clearance.
GP takes a different view to MH. She maintains the position that guardianship and administration orders should be made for PP and that she and MH should be appointed jointly in those roles.
In a written submission dated 24 October 2016, GP details a purported history of KH, alleging financial and employment misadventures, with serious allegations of past homelessness, alcohol abuse, and financial crises. KH is alleged to have borrowed sums of money from PP over the years without repaying those funds.
GP further alleges that KH is abusive, violent and intimidatory. She refers to a recent incident where she says KH assaulted G and which required police attendance. GP considers MH not to have the 'emotional intelligence' to recognise the seriousness of what KH is doing and will avoid any conflict in dealing with PP's personal and financial matters. GP says that in her view, MH cannot cope with the conflict and wants to keep the peace. GP submits that she and MH, if appointed as decisionmakers, will be able to resolve the problems that currently exist.
MH accepts that she has been the subject of KH's aggression and that she has spoken to him about this. MH states in a written submission dated 25 October 2016 that she takes offence at what GP contends, and states that she is simply staying focused on what she refers to as the 'main agenda', and that is to safeguard PP's estate.
MH states that although she prefers for the EPA to be allowed to operate, she would consent to her joint appointment with GP as guardian and administrator for PP should the Tribunal consider such an appointment to be in PP's best interests.

The Public Advocate

The Public Advocate states that despite the other children of PP having very negative views of KH as to his motives and intentions, it appears that they were happy to have KH return to Perth to live and care for PP.
The Public Advocate is of the view that there is no credible reason to suggest KH will act in a way contrary to PP's best interests and that the bulk of the allegations against him are from some years in the past.
The Public Advocate says that it is important to note that many of the financial allegations against KH are either unsubstantiated, denied, or of a historical nature.
The Public Advocate notes that each of PP's children has recently benefited from gifting made by PP after he received an inheritance. PP is said to have received $141,000 and in about May 2016, he gave $20,000 to each of his children. When interviewed by the Public Advocate, PP is reported to have said that he received $150,000 to $200,000 - he could not remember - and that he believed he had given about $50,000 to each of his children, leaving about $50,000 to $60,000 for his needs.
The Public Advocate states that he spoke with PP's exspouse who said that the gifting of money to the children was one of the reasons the separation occurred and that the children often asked PP for money. The exspouse mentioned that GP had lived in the property for nine years and never paid rent. The exspouse told the Public Advocate that when they were together (they separated in May 2016), PP was still, in her view, of sound mind and that he knew what he was doing when he gave money to his children.
The Public Advocate states that he made contact with Landgate and was advised that although joint and several attorneys can act independently (for example, to sell the property), an attorney can request of the Registrar of Titles that an alert be placed on the property as a form of security against one of the joint and several attorneys acting alone.

Other evidence and submissions

GP states that she and other family members do not feel safe to visit PP in his home because of the purported threats and intimidation carried out by KH. She says that KH also refuses to take PP to the homes of family members even though a motor vehicle has been purchased to transport PP.
GP states that because of the actions of KH and the resignation of PP, the family is largely estranged from him and he is at the mercy of KH.
KH states that PP wants things to remain as they are, and that he wants to live and die in the property. He says there is no intention to sell the property and that PP and his exspouse have agreed to a property settlement in which each of them retain what they brought into the marriage. For PP this will mean that he retains the property.
KH states that any trip to Italy in 2017 by PP will need to be further discussed.
KH accepts that he has been verbally abusive to his siblings, and this arises from the allegations that have been made against him and because they do not trust him. KH says he hates his siblings as a consequence.

The views and wishes of PP

Some of PP's views and wishes have already been expressed in the other sections of these reasons.
In his oral evidence, PP says that he wants things to remain the same; that he wants to live in the property; and that KH looks after him very well. He says that he and KH make the necessary decisions and that KH always consults with him when a decision needs to be made.
PP says that he and his exspouse agreed there would be no arguing about a property settlement after they separated and that their individual assets would be retained.
PP says that he does not want his children to argue, but that he does want to be left alone.

Discussion

There are a number of factors and circumstances which in my view can be taken from the evidence to provide a window into the situation in which PP finds himself. They are:
•PP has a history of delegating his decisionmaking to others. Prior to their separation it was his ex-spouse who ran most of the household activities and the management of their finances. Currently it is principally KH, with input from MH.
•PP has a 'big picture' view of the world and appears not to be bound by the details of things. This is evidenced in, amongst other things: his simple desire to remain living in the property; his intention not to be embroiled in a property settlement but to have a simple division of the marital assets on the basis of what he and his exspouse brought into the marriage; the gifting of a substantial portion of his inheritance to his children because of his view that he did not need the full amount; and his plea that he be left alone to live the life he currently has.

•The modest wish of PP to remain living in his home and how that can best be achieved - which currently is for KH to be the primary, livein carer, an assistance none of his other children are able to give - is the prism through which in my view PP decides who should be given the most authority in his life.

There are, however, a number of things which now complicate PP's life.
He can no longer rely on his exspouse in the decisionmaking role. As a consequence his children have become more involved in his life when decisions need to be made when, prior to the separation, that was undertaken by the exspouse. The problem is that KH, who is PP's primary carer (which appears to be accepted at the level of providing daily care for PP), and PP's other children are in intense conflict and there is no evidence that the conflict can be resolved except that MH appears to have reached some accommodation with KH by way of the EPA and the EPG.
The conflict between PP's children seems to have as its principal focus a concern by GP and G about the perceived vulnerability of his estate to exploitation by KH. It seems that this concern is not fully shared by MH, but to the extent where she is worried, she believes that the risk can be managed through the operation of the joint and several EPA.
The other major concerns relate to the contact that GP in particular says that she can no longer have with PP because of the threatening behaviour of KH and the proposed trip by PP to Italy in 2017 and how that may impact on his safety and wellbeing if it happens.
When applications for guardianship and administration orders are made to the Tribunal, the initial position of any applicant must be that the person for whom the applications are made is no longer capable of managing their personal and financial affairs because of an impairment or disability, and requires the protection of orders to ensure that decisions are made in their best interests.
In the case of PP, it appears that his children are not in dispute about the need for someone with the relevant authority to make the major personal and financial decisions for him. The differences manifest in what authorities should be used and, by implication, who should be in the decisionmaking role.
I pause to note that as recently as May 2016, PP's children must have at least found him capable of distributing a large portion of his inheritance to them because that particular transaction is not under challenge.
The Public Advocate has a contrary view to that of PP's children, which is that the presumption of capacity has not been displaced by the evidence and that, as a consequence, the applications should be dismissed and PP be given the right to choose who should assist him.
It is the further view of the Public Advocate that the allegation that PP is at risk of financial abuse by KH has not been substantiated and that there is no evidence that KH is not caring appropriately for PP.
It is a significant thing for the Tribunal to make guardianship and administration orders for a person because, in doing so, basic decisionmaking rights are taken from the person for whom the orders are made.
It is important therefore that to rebut the presumption of capacity contained in s 4(3) of the GA Act, the evidence before the Tribunal must be of a particular quality, albeit that the standard of proof remains that of the balance of probabilities.
This required 'quality' is usually described in terms of the standard adopted by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336: see, for example, S v State Administrative Tribunal of Western Australia [No 2][2012] WASC 306 at [105].
This approach requires the Tribunal to 'feel an actual persuasion of the occurrence or existence of the relevant facts': Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 at [16].
Put another way, 'clear and cogent evidence is required to rebut the statutory presumption of capacity': GC and PC [2014] WASAT 10 at [36].
I accept the evidence of Dr BM that PP has been diagnosed with a mild cognitive decline which presently is not indicative of Alzheimer's disease. That assessment was made by Dr BM together with the consultant Dr TY, and it represents an outcome based on most recent evidence available concerning PP's life circumstances. In particular, it removes from the equation the problems identified in the earlier assessments which is that PP was in the throes of the disintegration of his marriage and separation from his exspouse.
Despite the conflict between his children, PP is settled in his daily routines with care provided by KH and other carers.
PP has some memory loss and has some difficulties with orientation. PP's children have a more negative view of the memory problems than indicated by the testing by Dr BM. I accept the assessment of Dr BM that currently there are no clear functional implications resulting from PP's memory issues; however, the cognitive decline is likely progressive and will increasingly impact on PP's decisionmaking abilities.
PP is 83 years of age. His expressed needs are simple and are at this time being met by living in the property with KH.
It is difficult to separate from the evidence the impact (if any) of PP's mild cognitive decline on his decisionmaking abilities from the history of his apparent passivity in allowing others to make decisions for him and trusting that they will do so in his best interests.
This situation arguably introduces an element of vulnerability in PP's life; however, relying on others and as a consequence potentially being subject to some influence cannot, of itself, be determinative of a person's capacity.
When I consider all the evidence before me I am not convinced to the required standard that the presumption of capacity has been displaced at this time except that I am able to find that PP is in need of oversight and care in the interests of his own health and safety: s 43(1)(b)(iii) of the GA Act.
Despite that finding I am not satisfied that PP is in need of a guardian because his oversight and care is being appropriately managed through the efforts of KH.
I accept that, as PP's cognitive decline progresses and if the conflict in the family is not resolved, the question of who should be the decisionmaker for PP and under what authority will likely once more come before the Tribunal.
The applications are dismissed.
The order made on 25 August 2016 pursuant to s 65 of the GA Act is revoked.

Orders

1.The administration application is dismissed.
2.The guardianship application is dismissed.
3.The order made on 25 August 2016 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.

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